COURT FILE NO.: 18-G5363

DATE: 2021/03/11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AMANUEL KEBEDE MENGESHA

Accused

Ms. B. Luke and Ms. Ria Guidone for the Crown

Ms. K. Irwin, for the Accused

HEARD: Trial Dates: September 14, 15, 16 and October 30, 2020.

Oral Decision February 24, 2021

REASONS FOR decision

kane j.

Introduction

[1] Mr. Mengesha was arrested along a walkway beside the Rideau Canal in downtown Ottawa in the early evening on June 29, 2018.

[2] The charges, and counts, against him as to the June 29, 2018 events are:

1. Possession of cocaine – s. 4(1)
   Controlled Drugs and Substances Act, S.C. 1996, c. 19, (the “CDSA”);

2. Possession for trafficking of fentanyl-diacetyl morphine (“Fentanyl”) – s. 5(2) and (3) of the CDSA;

3. Possession of $395, being proceeds of an offence – Criminal Code of Canada, R.S.C., 1985, c. C-46, (the “Code”) s. 355 (b);

4. Possession of a prohibited handgun in a careless manner – Code s. 86(3);

5. Possession of such handgun for purpose dangerous to public peace – Code s. 88(2)

6. Carrying a concealed weapon, namely such handgun, without Firearms Act, S.C. 1995, c. 39, authority – Code s. 90(2)

7. Carrying a concealed weapon, namely a folding knife – Code s. 90(2)

8. Possession without excuse of a prohibited firearm, namely such handgun, without a license - Code s. s. 91(3)

9. Possession of a prohibited, restricted or non-restrictive firearm, namely such handgun, knowingly without a license - Code s. s. 92(3)

10. Possession of a loaded, prohibited firearm, namely such handgun, without authorization or license to possess and registration certificate of such handgun - Code s. 95(2)

16 Breach of a term of recognizance to not possess any Code defined weapon, namely such handgun – Code s. 145(3);

17 Breach of a term of recognizance to not possess any Code defined weapon, namely such folding knife – Code s. 145(3); and

18 Breach of a term of recognizance to not possess or consume any CDSA unlawful drug or substance – Code s. 145(3).

[3] Mr. Mengesha brought an application pursuant to s. 24 of the Canadian Charter of Rights and Freedoms (“Charter”) for an order that the following evidence seized by police upon his arrest for possession of marihuana on June 29, 2018, be excluded as having been obtained in a manner that infringed or denied his ss. 7, 8, 9, 10(a) and 10(b) Charter rights or freedoms:

[4] The prosecution opposes Mr. Mengesha’s Charter application and seeks the admission of the Evidence.

Ruling Re Alleged Breaches of ss. 7, 8, 9, 10(a) and 10(b) of the Charter

Factual Background

Request that Mr. Mengesha be “Moved Along”

[5] It was approximately 19:30 hours on June 29, 2018, the Friday evening of the Canada Day weekend. The then off-duty Constable Cahill of the Ottawa Police Services (the “OPS”) was having dinner with his wife on their boat which was tied to the side of the Rideau Canal in downtown Ottawa.

[6] Constable Cahill noted a group of six people, three black males, two black females and one white female, some twenty feet from his boat. They were standing on the sidewalk alongside the canal. He found their conversation to be loud and included swear words.

[7] Constable Cahill observed one of the males in this group appeared to roll something into rolling paper which he then lit. Constable Cahill testified he was able to identify from the smell which passed by his boat that this individual was smoking marijuana.

[8] In order to halt the noise and disruption to his dinner, Constable Cahill telephoned the then on-duty Constable Valin who was on bike patrol with two other OPS offices a short distance away.

[9] Constable Cahill provided his location and asked Constable Valin to pedal over and deal with the matter. He testified that he gave Constable Valin no instructions what to do, no description of the individuals in the group he was referring to. He stated his anticipation was that the arrival and presence of Constable Valin would cause this group of four males and two females to depart from that location along the canal.

[10] Constable Valin, now recently retired, had then been a police officer for some 28 years, primarily as a member of the foot and bike patrol. He testified that Constable Cahill telephoned and stated that several black males were smoking marijuana and that the smoke from that was bothering him. He testified that Constable Cahill asked him to bike over and “move them along”.

[11] Constable Valin testified that he and his fellow officers, Constables DeFazio and Galipeau, thereupon biked over and arrived at the area of the canal at approximately 19:44 hours.

[12] Constable Valin testified that:

a. During shifts on bike patrol in the Ottawa Market area, he often encountered someone drinking alcohol, or consuming drugs in public, on average once per day;

b. Possession and consumption of marihuana for personal use continued to be illegal in June 2018, however such conduct was then being legalized;

c. His practice was to not charge an individual for possession of marihuana for personal use, that he instead would seize and destroy the drug being used and prepare a police report to record the incident and person involved;

d. If a police record check revealed two or three prior instances of possession of marihuana for personal use, he would then either charge the individual under the CDSA, or he would fine them under a municipal by-law for matters such as causing a disturbance in public or for failure as directed to leave the scene.

[13] Constable Valin testified that his intention in response to this request of Constable Cahill on June 29, 2018, was:

a. To locate the four black males referred to by Constable Cahill along the canal pathway;

b. To take possession of any marijuana then being consumed; and

c. To then “move them along”, as Constable Cahill had requested.

[14] Constable Galipeau in June 2018 had been a police officer for 10 years. He testified that:

a. He was aware in June 2018 that Parliament was proceeding with the legalization of marihuana; and

b. In June, 2018, he considered instances of possession of small amounts of marihuana, similar to someone having an open container of alcohol in public, that both such matters were then being dealt with in the same manner namely, he would warn and tell the person such conduct was illegal, he would thereupon take and destroy the substance being used and would then “send the person on their way”.

[15] Constable Defazio at that time had been a police officer for three and one-half years. He testified that his practice in June 2018:

a. Involving instances of simple possession and not trafficking of marihuana, was to seize the substance being used, obtain identification from the person and that he would warn but not charge the person then consuming marihuana due to the pending legislation legalizing simple possession of that substance; and

b. That he would charge the person with possession of marihuana if they had a prior police history, if their then possession of marihuana was a breach of a release condition or restriction; provided that he had evidence that the person had or was using that drug and he had evidence that the drug being used was marihuana.

[16] Most adult Canadians will recall the still recent discussions about legalizing cannabis for personal use, Parliament’s enactment of legislation to decriminalize possession of marihuana for personal use and the licencing by the Provinces of vendors and store locations to sell cannabis to the public

[17] The shared practice of these police officers as of June 29, 2018, to not charge an individual for an instance of consuming marihuana and to “move them along” was based upon that legislation by Parliament which was to come into force in three and one-half months.

[18] The legislative history of the Cannabis Act, S.C. 2018, c. 16, which terminated possession of marihuana for personal use as a criminal offence is as follows:

a. First Tabled: April 13, 2017

b. First Reading: April 13, 2017

c. Second Reading: June 8, 2017

d. Third Reading: November 27, 2017

e. Royal Assent: June 21, 2018; and

f. Coming into Force: Most provisions of the Cannabis Act came into force on October 17, 2018

[19] These police officers on their testimony, did not at the commencement of this occurrence on June 29, 2018, intend to criminally charge Mr. Mengesha, or the other males in his company, for an instance of personal possession and use of marihuana as they knew that Parliament had already passed legislation to decriminalize such conduct which was about to come into force.

Detention of Mr. Mengesha and Other Three Males

[20] Mr. Mengesha, as well as the three males with him, were detained as they stood and sat on a concrete retaining wall alongside the canal upon the arrival of these officers on June 29, 2018. The prosecution acknowledges such detention of the defendant upon these officers’ arrival.

[21] Constable Valin testified he and the other two officers biked to the area of the canal walkway described by Constable Cahill. Constable Valin stated he looked for a group of four black males as Constable Cahill had described in the area of the canal indicated and that caused him to go and stop at this group of four black males, including Mr. Mengesha.

[22] Constable Cahill as indicated testified that:

a. He did not describe the group he wanted Constable Valin to deal with; and

b. There were six individuals, including a black and a white female, in the group that was bothering he and his wife.

[23] Constable Valin testified that he went to and stopped at Mr. Mengesha’s group of four males because he started to smell the smoke of burning marihuana in the area of that group from 15 to 20 meters away as he bicycled towards them and he saw Mr. Mengesha smoking something.

[24] Constable Valin’s inability to recollect whether there were other people in that area or whether they biked past other groups before stopping at the group of four males including Mr. Mengesha, is contradicted by:

a. Constable Galipeau, who testified that there were a lot of boats with children on them on the canal in that area and that they biked past another group of males alongside the canal before stopping at Mr. Mengesha’s group;

b. Constable Defazio, who testified that there were lots of people on the canal walkway and boats on the canal at this time; and

c. Constable McLean, who was dispatched and arrived on scene at 19:56 hours, who testified there then were a lot of people present in that area.

[25] Anyone with experience riding a bicycle, including the accompanying feeling of air against one’s face as one peddles forward, knows a bicyclist does not smell scents some 49 to 65 feet ahead as they bike forward. While acknowledging Constable Valin’s smell of burning marihuana 15 to 20 meters ahead was his estimate, it is his exaggerated estimate given under oath to support his alleged smelling of burnt marihuana coming from this group of four males, that Mr. Mengesha was the only one of that group smoking and that he therefore had reasonable and that he had probable grounds to arrest him for that as he stopped and got off his bike.

[26] Constable Galipeau in comparison, testified he could smell burning marihuana from within 2 to 3 feet of Mr. Mengesha’s group as the defendant sat on the retaining wall beside the canal and he saw the defendant holding a smoke in his hand.

[27] The three police officers thereupon adopted specific tasks. Constable Valin dealt with Mr. Mengesha. Constable Galipeau dealt with the other three males. Constable Defazio took out his computer and entered the names of all four males, as reflected on identification each was required to produce, into the police database.

[28] Constable Valin testified that Mr. Mengesha was immediately detained as he approached him on foot and “said something like, smoking marihuana was illegal”. Later in his testimony, Constable Valin stated he later told the defendant that he was detained when he asked for and obtained his identification.

[29] Constable Valin testified he believed he then had reasonable and probable grounds and could have arrested Mr. Mengesha for possession of marihuana as:

a. He had seen Mr. Mengesha put a lit smoke to his mouth;

b. He believed that smoke contained marihuana as he detected the burning smell of that drug present and concluded therefore that Mr. Mengesha was in possession of a still prohibited substance under the CDSA; and

c. He would have arrested Mr. Mengesha if he then had walked away, or if he had refused to provide his identification.

[30] Constable Galipeay testified that upon stopping at this second group of males, he believed Mr. Mengesha was smoking a marihuana joint as:

a. They stopped at Mr. Mengesha’s group as he smelt marihuana;

b. Mr. Mengesha was holding what appeared to be a filter-less joint;

c. He saw Mr. Mengesha exhale smoke and place his hand with the smoke behind him as they arrived; and

d. There was the smell of marihuana then present, which increased upon Mr. Mengesha, as he directed, placed the remaining ¾ to 1 inch smoke on top of the retaining wall beside him.

[31] Constable Galipeau testified that following the arrest of Mr. Mengesha, he looked for between five to ten minutes but could not find the joint the accused had placed on top of the retaining wall.

[32] Constable Defazio testified that upon stopping at Mr. Mengesha’s group, he saw one of the four males holding what he believed was a marihuana joint, as

a. The defendant and the other three males were in the location identified by Constable Cahill;

b. He could smell marihuana as they approached this group;

c. He saw the defendant with a joint in his left hand as it consisted of white paper with no filter or paper markings; and

d. He noted a strong marihuana odour then present.

[33] Constable Valin testified Mr. Mengesha identified himself in response to his demand, but he could not recall whether the suspect gave him written identification. Constable McLean testified that Constable Valin gave him Mr. Mengesha’s health card which had been used as identification of the defendant and entered into the police database.

[34] The prosecution as indicated concedes that Mr. Mengesha was psychologically detained when Constable Valin approached him, stated that smoking marihuana was illegal and asked for his identification.

[35] The three officers testified that they did see any suspect or criminal misconduct by any of the three other males with Mr. Mengesha. None of them were seen smoking anything. Despite that, those three males were detained and were required to produce identification which was then processed through the police database. As a later commotion started between Mr. Mengesha and Constable Valin, Constable Defazio told the other three males that they were being detained “in the investigation” and that they were prohibited from leaving. None of these three individuals were charged, were subsequently released from detention and permitted to depart.

[36] Although only relevant to the s. 24(2) Charter analysis regarding the defendant, the Court was provided no authority as to the right of police to detain, require production of and use the identification from these three individuals because Mr. Mengesha was believed to be smoking a marihuana cigarette.

[37] The residue of the smoke Mr. Mengaesha placed on the top of the retaining wall was not located by the officers. Constable Galipeau testified that he looked for it for five or ten minutes after Mr. Mengesha’s arrest but could not find it. Constable Valin testified he looked for it for thirty seconds but could not find it. Accordingly, there was no residue to test as to its contents.

Attempted Search of Suspect’s Property

[38] Constable Valin later altered his earlier testimony that his intention was to not charge the defendant for marihuana possession, to merely seize and destroy the marihuana joint being consumed and “move them along” as Constable Cahill had requested.

[39] In his later testimony, Constable Valin stated his intention continued to be to seize the joint, to move the group along as Constable Cahill had requested, to not charge the defendant for possession of marihuana, but then added “unless something bigger happened”. He did not explain what “something bigger” meant, aside from his testimony that he wished to ensure the defendant had no other drugs in his possession.

[40] After obtaining Mr. Mengesha’s identification, Constable Valin testified that:

a. He then told the defendant to show him any contents inside the fanny pack he had across his chest;

b. He made this demand as he wanted to make sure there were no other drugs in the fanny pack;

c. His intention, had he been shown the contents of the fanny pack, was to then direct Mr. Mengesha to show him any contents in his pant pockets;

d. Mr. Mengesha did not respond to his first direction to show him the contents of the fanny pack;

e. Constable Valin therefore told Mr. Mengesha that he had grounds to arrest him for possession of marihuana, but would not do so if he showed him any contents in the fanny pack in order to ensure it contained no drugs;

f. The accused responded that he did not wish to do that;

g. He thereupon told Mr. Mengesha “OK, you are under arrest” for possession of marihuana;

h. He then walked towards the defendant in order to apprehend him, whereupon Mr. Mengesha stood up, quickly raised his arms up and began to walk away, however he and Constable Galipeau prevented him from doing so;

i. Mr. Mengesha was placed in handcuffs at 19:46 hours; and

j. He then noted that the fanny pack was no longer across the defendant’s chest.

[41] The directions to show the contents of the fanny pack was Constable Valin’s unsuccessful attempts to search the suspect’s property prior to his subsequent arrest for possession of marihuana, which this officer testified he had observed the defendant smoking.

[42] Constable Galipeau’s version of these events is different. He testified that:

a. He heard Constable Valin raise his voice and tell Mr. Mengesha that he was being arrested for possession of marihuana;

b. Mr. Mengesha thereupon walked two steps forward, placed his hand in his pant pocket and stated that he was going to call his lawyer, whereupon Constable Valin grabbed the defendant’s left arm,

c. Mr. Mengesha yanked his arm free, took another step forward and again stated that he was going to call his lawyer;

d. He thereupon grabbed Mr. Mengesha’s right arm, told him he would be tasered unless he stopped resisting and the defendant thereupon stopped resisting; and

e. Mr. Mengesha was then placed in handcuffs.

[43] Constable Valin testified that after arresting Mr. Mengesha at 19:46 hours for possession of marihuana;

a. He conducted a search of the defendant and arrested him at 19:51 hours for possession of a concealed weapon, namely a folding knife located on his waist band;

b. He found several small plastic bags in one of the defendant’s pant pockets, which he felt was consistent with drug packaging;

c. he found $395 in the defendant’s other pant pocket;

d. That he at 19:53 and 19:54 hours respectively, read the defendant his right to counsel pursuant to s. 10(b) of the Charter as well as a caution and a warning pursuant to s. 524 of the Code; and

e. That he noted that the fanny pack that had been across the defendant’s chest was no longer present.

[44] Constable Defazio testified that he looked over when he heard Constable Valin tell the defendant he was under arrest for possession of marihuana, saw the defendant’s hand inside the small pocket of the satchel and that the satchel then went high in the air and landed in the bushes to the east of the retaining wall beside the canal.

[45] One of the officers requested that an officer with a vehicle be sent to transport Mr. Mengesha to the police station. Constable McLean attended in response. He parked, crossed the road and saw a fanny pack on the grass to the east of the bushes beyond which the defendant and bike officers were located. He testified one of the officers asked him if he had seen a satchel to which he replied yes and was then asked to retrieve the same. The fanny pack he found contained a loaded handgun.

[46] Mr. Mengesha was charged with possession of that firearm as a weapon at 20:03 hours.

Charter Application

[47] The defence argued the police breached the following Charter rights of Mr. Mengesha on June 29, 2018.

Alleged Breach of Defendant’s ss. 7, 8 and 9 Charter Rights

[48] The defence submits police lacked reasonable and probable grounds to arrest Mr. Mengesha for possession of marijuana:

a. As these officers admitted, the smell of that drug alone was insufficient reasonable and probable grounds to arrest, the failure by police to seize the remainder of the smoke in his hands for testing which would have determined what the substance was;

b. Constable Valin’s testimony contains numerous contradictions including as to when he first formed reasonable and probable grounds to arrest;

c. The detention of the defendant, including the failure to communicate the full reasons and purpose for that;

d. The requests to conduct a warrantless search of the defendant’s fanny pack property; and

e. The taking of his identification, combined with the time delay and failure by police to arrest shortly after police entered his identification in their database;

and thereby breached:

a. His right to remain silent

b. Section 7 Charter right to, and not be deprived of, liberty and security of the person except in accordance with the principles of fundamental justice,

c. His s. 8 Charter right to be secure against unreasonable search and

d. His s. 9 Charter right to not be arbitrarily detained.

• The defence as to the absence of reasonable and probable grounds to arrest, points to the failure by police to follow their original stated intention which was:

a. To not arrest the defendant for simply smoking a marihuana cigarette which they, by smell alone, alleged to be a marihuana joint, and;

b. Simply advise that marihuana possession was illegal, seize the joint being consumed and, unless “something bigger happened”, to then direct the defendant to depart,

represented callous conduct in disregard of the defendants Charter rights, particularly in light of the upcoming date when marihuana possession for personal use would become legal.

[49] The defence points to fact that the arrest for marihuana possession was solely because the defendant would not consent to show the contents of the fanny pack, and Constable Valin admitted such search was speculative as he had no knowledge of other drugs and what that search might produce. The defendant’s continuing detention upon arrest accordingly was arbitrary and contrary to his s. 9 Charter right to not be arbitrarily detained.

Arresting for Marijuana Possession on June 29, 2018

[50] The Court understands the defence concern that someone like the defendant was arrested and charged for smoking a cigarette of marihuana that close to the Cannabis Act coming into force, which terminated that conduct as an offence. We currently pass stores legally selling that drug on main streets in many of our cities.

[51] Notwithstanding that immanent change, smoking a joint of marihuana continued to be an offence on June 29, 2018. This Court cannot ignore that legal reality in holding that this arrest of the defendant for possession of marihuana on June 29, 2018, was unlawful because that then legal misconduct was soon to cease being illegal.

Detention – [s. 9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[52] The Supreme Court as to detention to investigate determined that:

a. A brief investigative detention based on "reasonable suspicion" was lawful; and

b. A detention in the absence of at least “reasonable suspicion” is unlawful and therefore arbitrary within s. 9: R v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 55.

[53] Given the testimony of the three officers that they each observed Mr. Mengesha being the only one of this group of four smoking, that they each smelt burning marihuana amongst this group, the defendant’s initial movement of his hand holding the smoke behind him as the officers approached or arrived and the continuing smell of that drug after the smoke was placed on the retaining wall, Constable Valin had more than a reasonable suspicion to permit the initial detention of the defendant.

[54] The detention of Mr. Mengesha on these facts did not breach his s. 9 right to not be arbitrarily detained.

[55] The Court as to s. 24 of the Charter, would conclude the opposite as to the detention of the other three males with Mr. Mengesha, as to whom these officers had noted nothing to support a reasonable suspicion of any wrongdoing.

Identification

[56] As to Mr. Mengesha being required to produce his identification, the Court of Appeal in R. v. Harris, 2007 ONCA 574, held that:

a. The request by police and receipt of identification from a person detained constitutes a seizure of that information and attracts s. 8 protection; and

b. For that to be reasonable, such seizure of information must relate and be based upon the reason why police detained the person.

[57] In so concluding, that Court in Harris stated:

[40] A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police: R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, 57 C.C.C. (3d) 1. In the circumstances, Harris's identification in response to the officer's question constitutes a seizure and attracts s. 8 protection.

[41] The seizure was unreasonable. As in Mellenthin, Lipkus had no reason to suspect Harris of anything when he questioned him and requested his identification. The purpose for the stop and the consequential detention of Harris and the other occupants of the vehicle had nothing to do with the request for Harris's identification. The purpose of the stop did not justify an at large inquiry into Harris's background or his status in the criminal justice system. That was the effect of the request for identification. Just as in Mellenthin, Lipkus expanded a Highway Traffic Act stop into a broader and unrelated inquiry. Harris's identification of himself provided the entrée into that broader and unrelated inquiry.

[43] The Crown also relies on R. v. Grant (2006), 2006 CanLII 18347 (ON CA), 81 O.R. (3d) 1, [2006] O.J. No. 2179, 209 C.C.C. (3d) 250 (C.A.), at pp. 16-17 O.R., pp. 264-65 C.C.C. Grant recognized that some questioning will constitute a search for the purposes of s. 8 and other questioning will not. Laskin J.A. pointed out that the nature of the questions and the context in which those questions were asked are important considerations in determining whether the questions constituted a search. On his analysis, it was important to consider whether the question was, in the minds of the police, preliminary to a more detailed search. In the present case, when Lipkus asked for identification, he intended to use that identification to conduct a CPIC search, one of the purposes of which was to determine whether the appellant was under any court orders and in breach of any court orders. I think the officer's intention to use Harris's identification to make the various inquiries available through CPIC is akin to an intention to conduct a further more intrusive search after receiving the answer to the request for identification. Grant offers support for my conclusion that the request for identification in the circumstances of this case amounted to a search or seizure for the purposes of s. 8.

[44] I conclude that Harris was subject to a seizure when he gave Lipkus his identification. The seizure was warrantless and without reasonable cause. There is no evidence that Harris was aware of, much less waived, any rights under s. 8 of the Charter. I agree with the trial judge's conclusion that the police violated Harris's rights under s. 8 of the Charter.

[53] For the reasons given above, the trial judge erred in finding a series of constitutional violations beginning with an arbitrary detention, followed by an unreasonable search, and culminating in a denial of Harris's right to counsel. As I have explained, there was one breach, a breach of s. 8 occasioned by the improper request for identification. [Emphasis added]

[58] The facts in Harris, of police initially stopping a vehicle driven by another person for failure to signal a turn and then seeking and checking the identification of passengers like Mr. Harris, are clearly different than the facts in the present case..

[59] The same evidence of the three officers seeing Mr. Mengesha smoking a short cigarette or joint, the present and continuing accompanying smell of burning marihuana and the fact that none of the three other males were seen smoking, leads the Court to conclude that:

a. Police on this occasion had reasonable to suspect the defendant was smoking marihuana;

b. The request and entry of the defendant’s identification police on this occasion was related to such current marihuana use by him;

c. The demand for and entry of such identification was not unreasonable and without cause; and

d. this demand and use of such identification did not, pursuant to Harris, and Hebert as referred to therein, breach the defendant’s s. 8 Charter right prohibiting unreasonable search and seizure.

[60] The Court in its s. 24 Charter analysis on this application, would reach the opposite conclusion as to the demand and use of identification information obtained from the other three males with Mr. Mengesha.

Attempts to Search Fanny Pack Prior to Arrest for Marihuana Possession – [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[61] As to Constable Valin’s attempts to search the defendant’s property, namely his fanny pack, the three officers each testified that they then understood that a search of the defendant could only be conducted upon or after his arrest.

[62] Despite that understanding, Constable Valin twice sought access the defendant’s fanny pack prior to his arrest for marihuana possession.

[63] The prosecution in support of this officer’s authority to search prior to arrest relies upon the Court of Appeal’s decision in R. v. DeBot, 1986 CanLII 113 (ON CA), [1986] O.J. No. 994, affirmed 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140.

[64] The Court of Appeal in DeBot stated:

32. Counsel for the appellant also contended that the search of the respondent was also authorized as incident to a valid arrest, even though the respondent was not arrested until after the search. It is axiomatic that a search may not precede an arrest and serve as part of its justification, for example, where prohibited drugs are found on the suspect's person in the course of the antecedent search and constitute the probable cause for the subsequent arrest. On the other hand, it is well established in the United States that where probable grounds exist for arresting a person, apart altogether from evidence discovered by a search, the fact that the search preceded the arrest does not preclude it from being a search incident to a valid arrest, where the arrest quickly follows on the search: see People v. Simon, 290 P. 2d 531 (1955); United States v. Rogers, 453 F. 2d 860 (1971); State of Maine v. LeBlanc, Me., 347 A. 2d 590 (1975); In The Matter of John Doe, a Child, 547 P. 2d 566 (1976); Rawlings v. Kentucky, 100 S. Ct. 2556 at 2564 (1980).

33. The reasoning of Traynor J. contemplates the situation where an officer has probable cause to arrest the suspect but postpones his or her decision to arrest the suspect. The officer, thus, avoids making an actual arrest, if the search proves that his or her belief that there was probable cause was erroneous. In my view, it may also very well be that a police officer, notwithstanding that he or she has reasonable and probable grounds upon which to make an arrest, may decide that, if the search does not disclose evidence of the offence, there would be no chance of obtaining a conviction. Hence, the officer may decide not to proceed further by making an arrest. I am of the view that Constable Birs, prior to searching the respondent, had reasonable and probable grounds to believe that DeBot had committed an indictable offence: namely, possession of a controlled drug, methamphetamine, for the purpose of trafficking. Constable Birs was justified, pursuant to s. 450 of the Code, in arresting DeBot without warrant. Holding that the search in the present case was incident to a valid arrest is consistent with the policy underlying the justification for a search incident to a valid arrest and is not precluded by authority.

34. In my view, in addition to being authorized under s. 37 of the Food and Drugs Act, the search of the respondent, in the circumstances, was properly incident to a lawful arrest. The search of the respondent did not contravene s. 8 of the Charter.

[65] I do not understand the Court of Appeal in DeBot thereby determining that:

a. Police have an unlimited right to conduct a warrantless search of a citizen prior to and absent reasonable and probable grounds to arrest; or

b. That police have any such unlimited right to conduct a warrantless search of a citizen’s property pre-arrest, despite having seen the person committing a drug offence, and with that knowledge, having already decided that the individual will not be charged for such conduct.

[66] R. v. Thompson, 2013 ONSC 1527, [2013] O.J. No. 1236 (SCJ), para 164, supports this Court’s above interpretation of the DeBot decision.

[67] The original testimony and intention of Constable Valin that he would not arrest the defendant for smoking a joint of marihuana, that he would simply seize and destroy the joint and move the defendant along, was conditional, namely “unless something bigger happened”. Constable Valin’s decision to not arrest the defendant for smoking the marihuana joint the officers had already seen him smoking was dependant upon the results of:

a. An identification data search of the defendant about to be conducted; and

b. The results of that officer’s request to search of the defendant’s property, despite his understanding that he lacked authority to do that unless and until the defendant was arrested.

[68] Officer Valin did not need to search the defendant’s property for the first reason identified in DeBot, at para. 37, namely, to postpone the decision to arrest in order to confirm the officer’s information that the suspect had drugs upon them.

[69] Constable Valin did not direct the defendant to turn over the remaining joint for destruction. His testimony that he intended to seize and destroy it was because he was not going to send it to test and confirm that it was that drug in order to have that evidence.

[70] The common belief by these three officers that they saw and smelt Mr. Mengesha smoking marihuana when they stopped and dealt with him, their decision thereupon to not take and destroy the residue of the joint as originally intended and the absence of testimony by Constable Valin that he attempted to search the defendant’s pack in order to confirm or deny his belief that Mr. Mengesha had smoked a joint of marihuana, contradict the second justification in DeBot, at para. 37. That second justification, namely that the search was done despite Constable Valin’s belief that he had reasonable and probable grounds, to confirm or deny that belief as to reasonable and probable grounds, as there would be no chance of obtaining a conviction for possession of marihuana if the search of the defendant was negative as to that or other drugs, is inapplicable in this case.

[71] Based on this analysis, the Court concludes that the two attempts to search the defendant’s property prior to his arrest breached the defendant’s s. 8 Charter right to be secure from unreasonable search.

[72] That s. 8 Charter violation also breached the defendant’s s. 7 Charter right to security of his person.

Alleged Breach of Defendant’s s. 10(a) Charter Right

[73] The defendant relies upon the above grounds regarding the breaches of his ss. 7, 8 and 9 Charter rights in support of his argument that his s. 10(a) Charter rights were breached namely, his right to be informed promptly of the reasons for his detention.

[74] The defendant submits that the evidence that he put the butt behind him was insufficient to establish that he knew the reason for his detention. In support of that, he submits the obligation to inform and his right to know the full reason for his detention are important as:

a. Constable Valin and these officers were required under s. 10(a) and failed to inform him of the full reasons why he was being detained

b. In order that the defendant could respond appropriately, which he was unable to do due to the failure under (a); and

c. In order that his detention not become a mere police fishing expedition, as occurred.

[75] The defence argues however that the s. 10(a) Charter breach in this case included Constable Valin’s failure to tell Mr. Mengesha that the reason for his detention was to seize and destroy the marihuana he was smoking, to obtain and run his identification through the police data base and to then release him from detention.

[76] The defendant submits the police did not meet this s. 10(a) detention informational requirement, that such failure thereby denied him the opportunity to respond appropriate to such required communicated reasons for detention and that the prohibited fishing expedition is what occurred in an attempt to determine the contents of his fanny pack.

[77] The prosecution as stated acknowledges the defendant was detained psychologically upon the arrival of these officers until his arrest.

[78] The prosecution however denies any breach of s. 10(a) and submits that the following circumstances informed Mr. Mengesha of the reason for his detention, namely:

a. The presence of a marked smell of marihuana in the area of these four males;

b. The other three males with Mr. Mengesha were not seen smoking anything;

c. The fact that Mr. Mengesha placed what he was smoking behind his back as the officers approached; and

d. That as he walked towards the suspect, Constable Valin “said something like, smoking marihuana was illegal”.

[79] The wording of s. 10(a) of the Charter is clear and uncomplicated. It states:

10 Everyone has the right on ….. detention

(a) to be informed promptly of the reasons therefore;

[80] In relying upon the above four facts as sufficient to inform the defendant of the reason for his detention and to satisfy the officer’s obligation under s. 10(a), the prosecution is acknowledging that upon first detaining the defendant, Constable Valin:

a. Did not promptly tell the defendant that he was detained; and

b. Did not tell the defendant that that the reason for his detention was because he was in possession and using marihuana.

[81] Constable Valin at the commencement of this detention of the defendant failed to advise the defendant, as he did upon his second attempt to search the fanny pack, that if Mr. Mengesha agreed to show him the contents of the fanny pack, he would then be free to depart and would not be charged for possession of marihuana.

[82] Highlighting the s. 10(a) Charter requirement to promptly inform the defendant that he was being detained and that the reason for that was his then use of marihuana, was the existing Royal Assent to Parliament’s legalization of personal use of marihuana legislation and the upcoming date that change was to come into force. The officers testified they would not then charge someone for smoking a joint of marihuana, which was all they had observed upon the commencement of their exchange with Mr. Mengesha.

[83] The court in Thompson provided the following helpful summary of the law as to the s. 10(a) Charter notice requirement including the overarching principle against self-incrimination. It also highlights the underlying and primary but unstated purpose for Constable Valin’s detention in this case.

[84] The court in Thompson reviewed when and what the individual must be told, the importance and impact of that and stated:

120 Once a constitutional state of detention is imposed, other "rights subsidiary to detention" are triggered (Grant, at para. 22) protective of the overarching principle against self-incrimination including s. 10(a) of the Charter:

(1) the interests protected by s. 10(a) include (1) sufficient notice to the detainee that he or she knows the reason why he or she may be obliged to submit to the detention, and (2) adequate notice of the reasons for detention to alert a detainee of his or her jeopardy which in turn will inform the choice whether to speak to the police and whether to consult counsel: R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, at para. 28; R. v. Evans (1991), 1991 CanLII 98 (SCC), 63 C.C.C. (3d) 289 (S.C.C.), at p. 302; R. v. Kelly (1985), 1985 CanLII 3483 (ON CA), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424; see also Christie v. Leachinsky, [1947] A.C. 573 (H.L.), at pp. 587, 591

(2) while the police may actively and legitimately persuade a person to speak during a criminal investigation (R. v. Way, 2011 NBCA 92, at para. 52), where detention is imposed to encourage cooperation, the s. 10(a) imperative to "promptly" provide a detainee the reason for detention is triggered - since the right to counsel must be provided immediately at the outset of a detention (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2, 39), a right which can only reasonably be exercised knowing of one's jeopardy, there necessarily is an immediacy to the obligation of communicating to a detainee the reason(s) for his or her detention: R. v. Perjalian, 2011 BCCA 323, at paras. 21, 27; R. v. Volk, 2010 SKCA 3, at para. 20

(3) where the s. 10(a) right information can be easily and quickly communicated without impediment, there is no reasonable excuse not to do so and failure to do so is not a trivial matter (R. v. Nguyen (2008), 2008 ONCA 49, 231 C.C.C. (3d) 541 (Ont. C.A.), at paras. 8, 14, 21) - it is "a gross interference with individual liberty for persons to have to submit to arrest without knowing the reasons for that arrest": Latimer, at para. 28

(4) the 'without delay' implication of communication of the s. 10(a) right is that only exceptionally will delay be constitutionally tolerable as in an established instance of officer safety: (R. v. Strilec, 2010 BCCA 198, at para. 33; R. v. Wright, 2010 MBCA 95, at paras. 20-4, 28)(leave to appeal refused, [2010] S.C.C.A. No. 447)) or where the individual "produces the situation which makes it practically impossible to inform him or her" (Christie, at p. 588) - this is consistent with s. 29(2)(a) of the Code requiring a police officer to give notice of the reason for an arrest "where it is feasible to do so".

The Charter Breach

121 Once Sergeant Ceballo effected detention of the accused at the location of the rear of the Mazda, he was legally obliged to inform him as to the reason for his detention.

124 On the totality of the evidence, I am satisfied that Sergeant Ceballo had, from the outset, every intention of searching the Mazda for the presence of a firearm. As will be discussed in further depth below, unimpeded by any concern for lawful authority to search Thompson's vehicle, he intended to work backward from the results of his search of the vehicle. If a firearm was not located, then "no harm, no foul, go on your way". If a firearm was seized, then the sergeant would get to the detainee's constitutional rights. This, of course, highlights the very real concern of what actually goes on in the low visibility theatre of investigative detentions.

125 Adrian Thompson had a constitutional right to be informed immediately on detention of the reason for the state's interference with his liberty. Leaving apart his own unique history as a black citizen in Peel Region, Mr. Thompson was entitled, as a detainee in the public location in which he found himself detained, to learn, in a timely way, the jeopardy in which he had been placed. Then, and only then, could he make a fully informed decision respecting speaking to the police. Indeed, he had a right not to surrender to unlawful detention - an assessment which could only be made in the context of knowing the asserted reason of the police for his detention.

[85] Constable Valin knew from the outset that he wanted access to the contents of Mr. Mengesha’ fanny pack to look for other drugs, to then access his pockets and that if he found nothing illegal therein, he would not charge the defendant for his possession of a marihuana joint. Instead of Constable Valin stating that as the reason for the detention, he ignored his duty and the defendant’s s. 10(a) right.

[86] The prosecution acknowledges that the defendant’s s. 10(b) Charter right to be informed of his rights to consult with counsel was breached by Constable Valin’s prohibited attempt to search the fanny pack prior to arrest.

[87] Based on the above analysis, the Court finds that the defendant’s s. 10(a) Charter right was breached in this officer’s failure to promptly advise the defendant that he was detained and the reason for that.

Breach of Defendant’s s. 10 (b) Charter Rights

[88] The defendant argues that the s. 10(b) Charter obligation and his right to be informed promptly by the police of his right to retain and instruct counsel did not occur throughout the period of his detention.

[89] The prosecution acknowledges that the police breached the informational component of Mr. Mengesha’s s. 10(b) Charter rights:

a. During the period of his detention namely between the start of that detention at 19:43 hours, to the time he was declared under arrest at 19:46 hours and until he was advised of that s. 10(b) right at 19:53 hours following his apprehension and being placed in handcuff; and

b. As to the duty of police to not question or attempt to elicit incriminating evidence until the detainee had had a reasonable opportunity to reach a lawyer, or waive that right, by Constable Valin’s requests that the defendant show him the contents of his fanny pack.

[90] The s. 10(b) Charter right:

a. Arises immediately upon detention or arrest;

b. The duty to immediately advise the person detained of that right includes to facilitate the requested access to a lawyer at the first reasonable available opportunity; and

c. Until the defendant’s request to access counsel, as Mr. Mengesha stated he wished to do, police are to refrain from taking further investigative steps to elicit evidence: R. v. Taylor, 2014 SCC 50, paras 24 - 26, and Thompson, paras 134, 140 and 142.

[91] The right to silence in s. 7 and the right to counsel under s. 10(b) of the Charter operate together to “ensure that a suspect is able to make a choice to speak to the police investigators that is both free and informed”: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25 and Thompson, at para. 133. Such communication occurred in Mr. Mengesha, upon direction, providing his identification card and in showing the empty smaller compartment of the fanny pack to Constable Valin

[92] The defendant’s ss. 10(b) and 7 Charter rights in this case were thereby breached during the period of his detention prior to his arrest.

Scope of s. 24(2) and Linkage of Evidence to Charter Breach

[93] None of the Evidence sought to be excluded in this application was disclosed or found during the above breaches of Mr. Mengesha’s Charter rights. That raises the issue whether those Charter breaches during the defendant’s detention pre-arrest, may form the basis to exclude the Evidence found following his arrest for possession of marihuana.

[94] An application to exclude evidence pursuant to s. 24(2) of the Charter, involves “evidence obtained in a manner which infringed or denied rights or freedoms guaranteed” by the Charter. The jurisdiction to determine inadmissibility under s. 24(2) therefore is as to evidence obtained in the breach of a Charter right or freedom.

[95] The above principle arises from the wording of s. 24 of the Charter which states:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.[Emphasis added]

[96] The Supreme Court of Canada confirms this linkage of the evidence being obtained by a breach of a Charter right or freedom in Grant.

[97] The Supreme Court in Grant as to this linkage between the evidence being obtained in a manner that infringed or denied rights in the Charter breach and the Court’s resulting s. 24(2) jurisdiction, states:

a. Section 24(2) “ … seeks to ensure that evidence obtained through that (Charter) breach does not do further damage to the repute of he justice system”, para 69;

b. the authorities suggest “that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice ….: para 71; and

c. the need of the court for a more serious breach of the Charter to disassociate itself from Charter violation misconduct by “excluding evidence linked to that conduct” …, para 72; and

d. evidence obtained through inadvertent or minor violations …”, as compared to “…evidence obtained through a wilful or reckless disregards of Charter rights …”, para 74. [Emphasis added]

[98] The Supreme Court in Grant indicates that on a s. 24 application, a court must first determine whether the evidence sought to be excluded was obtained in a manner that violated the suspect’s Charter rights, and stated:

130 Here the admissibility of Mr. Grant's incriminatory statements is not in issue, the statements having no independent evidentiary value. The only issue is the admission or exclusion of the gun. This falls to be determined in accordance with the inquiries described earlier.

131 At the outset, it is necessary to consider whether the gun was "obtained in a manner" that violated Mr. Grant's Charter rights: see R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, and R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463. As explained above, we have concluded that Mr. Grant's rights under ss. 9 and 10(b) of the Charter were breached. The discovery of the gun was both temporally and causally connected to these infringements. It follows that the gun was obtained as a result of a Charter breach.(emphasis added)

132 Because the gun was discovered as a result of statements taken in breach of the Charter, it is derivative evidence. The question, as always, is whether its admission would bring the administration of justice into disrepute. To answer this question, it is necessary to consider the concerns that underlie the s. 24(2) analysis, as discussed above, in "all the circumstances" of the case, including the arbitrary detention and the breach of the right to counsel.[Emphasis added]

[99] The Supreme Court in R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34, stated:

[21] Breaches of the Charter established, the question is whether the evidence thereby obtained should be excluded under s. 24(2) of the Charter.

[22] As to the seriousness of the Charter-infringing State conduct, “At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence.” [Emphasis added]

[100] The Court in Thompson described this first issue as a threshold determination and stated:

Governing Principles

190 The overarching guidance for a determination as to whether unconstitutionally obtained evidence ought to be admitted or excluded at trial may be summarized as follows:

(1)assuming standing exists to personally assert a violation of a constitutional right, whether it can be said in all the circumstances that evidence "was obtained in a manner" that infringed

a Charter right requires a threshold determination of a sufficient nexus, whether a causal connection or unseverable temporal connection, between the breach and the state's acquisition of the evidence in question: Grant, at para. 131; R. v. Strachan, [1988] 2 S.C.R. 223, at paras. 40, 45-7; R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 44; R. v. Lauriente, 2010 BCCA 72, at paras. 35-54

(6) in the end, in deciding whether admission of the unconstitutionally obtained evidence would bring the administration of justice into disrepute, in the sense of the effect of admission on the overall repute of the justice system viewed in the long term, the court must then, though not in any precise mathematical way, balance the assessments under each of the three avenues of inquiry: Grant, at paras. 85-6; Côté, at para. 48. [Emphasis added]

[101] The Charter breaches relied upon to this point in the evidence all occurred during the period of detention of Mr. Mengesha prior to his arrest. During that period of detention, none of the Evidence sought to be excluded was known to or obtained by the police.

[102] The Evidence sought to be excluded under s. 24(2) of the Charter was revealed to and obtained by police after Mr. Mengesha was arrested.

[103] The Evidence was not linked to, revealed or obtained through, during or as a result of the prior period of detention during which the Charter breaches occurred.

[104] Constable Valin’s Charter prohibited attempts during the pre-arrest period of detention to access the defendant’s fanny pack were unsuccessful, beyond being shown that the smaller compartment of the pack contained nothing. That officer’s intention to thereafter search the defendant’s pockets and person, which contained the drugs, the money and the knife, did not occur until after the defendant was arrested.

[105] The Court is troubled by the breaches of Mr. Mengesha’s Charter rights during the period of his detention prior to his arrest. The Evidence sought to be excluded under s. 24 of the Charter however:

a. Was not obtained during or as a result of his detention prior to arrest; and

b. Was obtained by the police search of his pockets, his person and a satchel that looked identical to one previously across his chest which Constable McLean found several minutes after the arrest of the defendant.

[106] There is no linkage between the Evidence coming to the knowledge and into the possession of these officers and the Charter breaches during the prior period of detention when these Charter breaches occurred.

[107] There is no evidence obtained as a result of the breach of the defendant’s Charter rights during his period of detention prior to being arrested, to be assessed and balanced pursuant to the three factors in Grant, at para. 71, in order to decide whether to exclude evidence obtained through a breach of Charter rights.

[108] Section 24(2) does not authorize a court to exclude evidence legally obtained because an unrelated breach of the suspect’s Charter rights occurred.

[109] There is therefore no basis to exclude the Evidence pursuant to s. 24(2) for these pre-arrest Charter breaches.

[110] The evidence of such Charter breaches will remain relevant in the s. 24 Charter analysis if the Court determines the defendant’s Charter rights were breached upon or following his arrest which led to police obtaining the Evidence.

Lawfulness of Arrest for Marihuana Possession

[111] The issues upon arrest are:

a. Whether the defendant’s Charter rights were breached upon or following his arrest;

b. If so, whether those breaches led to the discovery and seizure of the Evidence; and

c. If so, whether such evidence should be excluded pursuant to s. 24(2) of the Charter.

[112] The defence submits that:

a. Police did not have reasonable and probable grounds to arrest Mr. Mengesha;

b. That his subsequent detention after arrest was arbitrary;

c. That the warrantless search of his person after such unlawful arrest therefore was unreasonable; and

d. That the Evidence found by police following such unlawful arrest, during the subsequent arbitrary detention of and the subsequent unreasonable search of the defendant that followed should therefore be excluded under s. 24 of the Charter.

[113] The defence relies upon s. 9 of the Charter, namely the right to not be arbitrarily detained or imprisoned.

[114] In support of its position that police lacked reasonable and probable grounds to arrest Mr. Mengesha for possession of marihuana, that the arrest of the accused was therefore unlawful and that his then detention was arbitrary, the defence submits that at the time the police advised the defendant that he was under arrest, the officers lacked sufficient grounds to believe that he was in possession of a prohibited drug substance as:

a. No joint was located by police to test as to its contents and there is therefore no evidence as to its contents;

b. Mr. Mengesha was seen putting a “smoke” to his mouth, but there is no evidence as to what was in the 'smoke';

c. The testimony of the officers that they smelt burning maihuana, only speaks to the past presence of marihuana, and not the current presence thereof;

d. The officers required reasonable and probable grounds to believe that the accused was in possession in order to arrest.

e. The smell of burnt marihuana alone is not sufficient to arrest for possession of marihuana: Thompson, at para 166;

f. With no way of proving what the substance was, because it has been consumed or no longer existed, the officers therefore lacked reasonable and probable grounds to arrest Mr. Mengesha for possession of marihuana.

[115] The prosecution submits the arrest of Mr. Mengesha was lawful pursuant to s. 495 of the Code, that he was not arbitrarily detained upon or after his arrest and that there was no breach of s. 9 Charter right to not be arbitrarily detained upon his arrest.

[116] The Supreme Court in R. v. Biron, 1975 CanLII 13 (SCC), [1976] 2 S.C.R. 56, determined that reasonable and probable grounds is only applicable when an officer did not see the offence being committed under the now s. 495(1)(a), however that reasonable and probable grounds was not relevant to s. 495 (1)(b) arrest without warrant on an occasion where the officer finds the accused committing an indictable offence.

[117] The Supreme Court in Biron stated:

18 Paragraph (a) of s. 450(1) (now s. 495(1)) permits a peace officer to arrest without a warrant:

(a) a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence,

19 This paragraph, limited in its application to indictable offences, deals with the situation in which an offence has already been committed or is expected to be committed. The peace officer is not present at its commission. He may have to rely upon information received from others. The paragraph therefore enables him to act on his belief, if based on reasonable and probable grounds.

20 Paragraph (b) applies in relation to any criminal offence and it deals with the situation in which the peace officer himself finds an offence being committed. His power to arrest is based upon his own observation. Because it is based on his own discovery of an offence actually being committed there is no reason to refer to a belief based upon reasonable and probable grounds.

21, If the reasoning in the Pritchard case is sound, the validity of an arrest under s. 450(1)(b) can only be determined after the trial of the person arrested and after the determination of any subsequent appeals. My view is that the validity of an arrest under this paragraph must be determined in relation to the circumstances which were apparent to the peace officer at the time the arrest was made..[Emphasis added]

[118] The defence argument as to the lack of reasonable grounds therefore is not applicable as these three officers believed they observed the defendant commit the marihuana offence, as per s. 495(1)(b) of the Code. The issue is whether what the officers saw and smelt proves that defendant was then smoking marihuana.

[119] The defence, based on the following case law, correctly submits that the presence of marihuana odour alone was insufficient to arrest the defendant for its possession and use of that drug.

[120] The officers in this case however testified that they witnessed the defendant smoking a substance which, based on its smell and their street experience as officers involving that drug and its use, they identified as marihuana given the smell thereof emitting from what the defendant was then smoking and holding.

[121] The court in Thompson stated:

166 As a general rule, the smell of burnt marihuana detected by a police officer with expertise in identifying that scent, standing alone, cannot reasonably found grounds for arrest or a search relating to finding a person committing the offence of possession of marihuana: see R. v. Boyd, 2013 BCCA 19(odour alone); R. v. Janvier (2007), 2007 SKCA 147, 227 C.C.C. (3d) 294 (Sask. C.A.) (odour alone); R. v. S.T.P., 2009 NSCA 86, at paras. 15-29 (odour, unusual reaction of vehicle occupants, vehicle plate check connected to "trafficking cannabis"); Polashek, at paras. 12-16 (smell of marihuana not distinguished as burnt or unburnt, false statement of driver, location where drug seizures common; potential in other cases for police expertise regarding present possession of marihuana). The smell of fresh marihuana on the other hand may itself provide grounds for the search of a vehicle: R. v. Madore, 2012 BCCA 160, at paras. 9, 37 (leave to appeal refused, [2012] S.C.C.A. No. 384); R. v. Harding, 2010 ABCA 180, at para. 29. (emphasis added)

[122] The Court of Appeal in R. v. Polashek, 1999 CanLII 3714 (ON CA), 118 O.A.C. 312, confirms the above general rule that the smell of burnt marihuana alone cannot reasonably form grounds for arrest for possession of that drug. As to that conclusion, that Court stated:

13 I agree, in part, with the appellant's position. Had Constable Ross based his arrest of the appellant solely on the presence of the odour I would have held that there were not reasonable and probable grounds to make the arrest. Given Constable Ross' admission that he could not from the odour alone determine whether the marijuana had been smoked recently or even if he was detecting the smell of smoked marijuana, the presence of odour alone did not provide reasonable grounds to believe that the occupant was committing an offence. The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory and thus largely incapable of objective verification. A smell will often leave no trace. As Doherty J.A. observed in R. v. Simpson at p. 202 "subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation."

14 On the other hand, I would not go so far as was urged by the appellant that the presence of the smell of marijuana can never provide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was made will determine the matter. It may be that some officers through experience or training can convince the trial judge that they possesses sufficient expertise that their opinion of present possession can be relied upon. Even in this case, the Crown adduced sufficient evidence from which the trial judge could reasonably conclude that Constable Ross accurately detected the odour of marijuana rather than some other substance.

15 However, Constable Ross did not make his arrest solely on the basis of the odour of marijuana. He testified that a combination of circumstances gave him the grounds to make the arrest. He testified as follows: ….. (emphasis added)

[123] The court in Potashek then cites from the officer’s testimony who stated that:

a. There was a strong odour of marihuana coming from the accused’s vehicle,

b. The officer told that accused that he smelt marihuana, to which the accused replied that the officer was mistaken;

c. This vehicle stop occurred in an area of the GTA where drugs use was fairly prominent; and

d. The officer had been involved in the seizure of drugs in that area some 40-50 times.

[124] The court in Polashek stated:

19 Further, I am not satisfied that, based on this record, the finding of reasonable grounds is unreasonable. I recognize that this is a close case. There was no cloud of smoke attending the smell. The officer did not observe any object in plain view in the car that would support the present possession of marijuana. The evidence does not disclose the extent of the officer's experience in making arrests for marijuana offences although there is an indication of his participation in many such arrests. However, in R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 at 750 (C.A.), Doherty J.A. held that the test for finding reasonable grounds for arrest is not as exacting as it might be in other situations where reasonable grounds are required, such as in considering the validity of a search warrant:

Mr. Harris' reliance on the search warrant cases is misplaced. Both a justice and an arresting officer must assess the reasonableness of the information available to them before acting. It does not follow, however, that information which would not meet the reasonableness standard on an application for a search warrant will also fail to meet that standard in the context of an arrest. In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. 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. [Emphasis added.]

20 As Cory J. pointed out in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 at 250-51 the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. "On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest."

21 In the circumstances, I would not interfere with the trial judge's conclusion that the officer had the requisite grounds for an arrest. …… [Emphasis added]

[125] The belief of the three bike officers that a person could not be charged based solely upon the smell of marihuana, and as argued by the defence, was accurate as indicated above in Polashek and Thompson.

[126] The prosecution submits however that these officers had more than the smell of marihuana upon the arrest of Mr. Mengesha as:

a. They had seen Mr. Mengesha smoking what appeared to be a small smoke or joint;

b. There was a noticeable smell of burnt marihuana present when they stopped at this group, as Mr. Mengesha motioned to place the smoke behind him and then, as directed, placed it on top of the retaining wall; and

c. Mr. Mengesha was the only one of the four males seen smoking.

[127] The three officers did not testify that they had had any training regarding marihuana, however Constables Valin had lengthy street experience in dealing with that drug and Constables Galipeau and Defazio each testified they smelt burning marihuana as they arrived at this group and upon the smoke being placed on top of the retaining wall.

[128] Although Constable Valin exaggerated as to when he could first smell burning marihuana on this occasion, he testified that:

a. He smelt burning marihuana as the officers approached this group;

b. He saw Mr. Mengesha put a smoke to his mouth as the officers approached the group; and

c. He saw Mr. Mengesha put what he was smoking behind him as the officers approached.

[129] The evidence of Constable Galipeau and Constable Defazio corroborates the testimony of Constable Valin that:

a. There was a strong marihuana odour in the presence of these four males which continued, if not increased, as Mr. Mengesha placed the smoke or joint on top of the retaining wall;

b. Mr. Mengesha was the only one of the four seen smoking, as he put the smoke to his mouth and exhaled smoke;

c. The small joint he held was in white unmarked paper without a filter; and

d. Mr. Mengesha put the joint in his hand behind him as the officers approached.

[130] Regardless of the immanent legalization of marihuana possession for personal use, the use and possession thereof remined a criminal offence on June 29, 2018.

[131] These officers accordingly had more than the smell of burnt marihuana. They had more evidence than the arresting officer had in Polashek, which that court determined was sufficient to form sufficient reasonable and probable grounds to arrest.

[132] The corroborating evidence of the three officers as to what they observed the accused was holding and smoking and his reaction of placing that hand with the cigarette object behind him as they approached, are in addition and not limited to the smell of burnt marihuana. That combined evidence of the three officers, constituted reasonable and probable grounds to arrest Mr. Mengesha for possession of marihuana. Notwithstanding the immanent enactment of the Canabis Act, the arrest of Mr. Mengesha for possession of that drug was not unlawful.

[133] The detention upon the lawful arrest of Mr. Mengesha therefore was not arbitrary and in contravention of his s. 9 Charter rights.

Whether Warrantless Search Following Arrest Was Incident Thereto, Reasonable and Lawful

[134] The defence argued that:

a. As the police did not have reasonable and probable grounds to arrest Mr. Mengesha, that the subsequent warrantless search of his person after his arrest therefore was unreasonable;

b. The police assert that the fanny pack was in the possession the Applicant. The police searched the fanny pack after the unlawful arrest of the Applicant, therefore the seizure of the fanny pack and anything found in it is the fruit an unlawful arrest and should also be excluded.

[135] Constable Valin testified that following his arrest and physical detention of Mr. Mengesha, he as incident to that arrest, searched the pockets of the accused and found:

a. $395 in the accused’s right pant pocket;

b. Two or three small plastic bags in his left pant pocket which were not examined as to any contents, however he believed these plastic bags were consistent with drug packaging; and

c. A four-inch folded knife in Mr. Mengesha’s waist band.

[136] Constable Galipeau’s testimony as to the $395 is different from the testimony of Constable Valin. Constable Galipeau testified that he saw the money fall out of Mr. Mengesha’s pant pocket onto the ground during the arrest of the defendant and that he as a result stepped on the money as he assisted to place the defendant in handcuffs.

[137] Despite this contradiction, the evidence of both officers is that the $395 came from the defendant’s pant pocket.

[138] Mr. Mengesha no longer had the fanny pack upon his arrest. Constable Valin had not seen how it had departed from the defendant or where it was. Constable Delfazio had seen how the fanny pack had left the defendant, where it landed and testified as to those facts.

[139] As to the authority of police to search the defendant following his arrest, the court in Thompson stated:

160 It is open to the Crown to show that a warrantless search was reasonable as a valid search incident to arrest by leading evidence to justify the search on that basis: R. v. Calderon (2004), 2004 CanLII 7569 (ON CA), 188 C.C.C. (3d) 481 (Ont. C.A.), at pp. 507-8. "If the arrest is unlawful, the search is also unlawful": R. v. Mohamad (2004), 2004 CanLII 9378 (ON CA), 69 O.R. (3d) 481 (C.A.), at para. 28. A search incident to arrest is an established exception to the general rule that warrantless searches are prima facie unreasonable: R. v. Golden (2001), 2001 SCC 83, 159 C.C.C. (3d) 449 (S.C.C.), at p. 488. The authority for a search incident to arrest does not arise as a result of a reduced expectation of privacy of the arrested individual, but rather from "a need for the law enforcement authorities to gain control of things or information which outweighs the individual's interest in privacy": R. v. Caslake (1998), 1998 CanLII 838 (SCC), 121 C.C.C. (3d) 97 (S.C.C.), at p. 107. [Emphasis added]

[140] The Court’s determination that the arrest of Mr. Mengesha for possession of marihuana was lawful results in the subsequent search of Mr. Mengesha following and incidental to that arrest as to whether he had any other drugs lawful in the circumstances in this case: Thompson, at paras. 160 to 165.

[141] Police were not required to delay the search of the defendant upon his arrest in order to permit him to exercise his s. 10(b) Charter right to consult with counsel right: Polashek, at para. 27.

[142] Based on the above authorities and the corroborating evidence of the three officers:

a. Constable Valin’s arrest of the defendant for the then continuing offence of possession of marihuana on that date was lawful; and

b. Upon that lawful arrest of the defendant for such marihuana possession, the officer was entitled to conduct a reasonable search of the defendant, during which the Evidence was discovered during the search of the defendant’s pockets and, subject to the Court’s determination below, inside the fanny pack .

Whether Accused had Possession of the Fanny Pack and Firearm Located by Constable McLean After the Arrest

[143] Exhibit 2 contains two photographs of a waist or fanny pack that Constable McLean located on a grass area beyond the bushes above and to the east of the retaining wall where Mr. Mengesha had been sitting. The exterior of that pack is black and white square pattern, similar to a checker or chess board design. The pack had an orange interior and a zipper on the top and a second zipper along one side of the pack.

[144] Constable Valin in his testimony:

a. described the fanny pack initially worn by the suspect as a checkered fanny pack worn across his chest, over his shoulder and attached at his waist;

b. stated Constable McLean after arriving on scene located a satchel which visually appeared to be the same as the one worn by Mr. Mengesha; and

c. upon being shown the picture of the pack found by Constable McLean, exhibit 2, p. 1 (a), stated the satchel in that picture appeared identical to the one worn by Mr. Mengesha and the one that Constable McLean had found in the grass area to the east of the bushes behind the defendant.

[145] Constable Galipeau testified that:

a. Mr. Mengesha initially had a satchel across his shoulder which had a black and white checkered squares design on its exterior with an orange interior lining;

a. The design and colour of the satchel was “specific”, or distinctive;

b. When he heard Constable Valin tell Mr. Mengesha that he was under arrest, he saw the suspect’s hand inside the smaller side pocket of the pack showing Constable Valin that there was nothing in that side pocket;

c. He did not see the departure of the satchel or where it went; and

d. He noted no one else in the immediate area between the time of the arrest of Mr. Mengesha and Constable McLean bringing the fanny pack to them;

e. The fanny pack Constable McLean brought back moments later and where he reported he found it was close by, had the same black and white checkered squares exterior, the same orange interior lining , had only been off of the suspect for several brief minutes and matched exactly the satchel Mr. Mengesha had had across his chest.

[146] Constable Defazio testified:

a. That the satchel initially over the defendant’s shoulder was black and white;

b. Upon hearing a commotion, he saw Mr. Mengesha raise both arms and the black and white satchel then went high in the air landing in the bushes behind Mr. Mengesha and was then out of sight;

c. He asked Constable McLean to go and look for a fanny pack, to which Constable McLean asked if it was black and white;

d. He believed Constable Mclean returned with the same satchel Mr. Mengesha had had over his shoulder as it had the same black and white pattern and Constable McLean’s reported location where he found it coincided with the general area where he had seen it land;

e. He estimated the satchel was out of sight until Constable McLean returned with it for between ten to twelve minutes; and

f. The officers did not search the bush or grass area for any other satchel.

[147] Constable McLean testified that:

a. He arrived and parked his vehicle shortly at 19:56 hours, walked across the street towards the canal and the area where the four males and the three other officers were located;

b. As he walked across the street towards the canal, he saw a black and white checkered satchel laying on the grass and noted there was no one in that immediate area

c. He left the satchel on the grass and continued towards the officers and the four males;

d. He said yes when Constable Defazio asked him if he had seen a black and white bag and thereupon retrieved the satchel he had seen at 20:02 hours;

e. The satchel had one large compartment, the zipper of which was closed, and one small compartment, the zipper of which was open;

f. He opened the satchel ’s large compartment which contained a loaded handgun and he showed the satchel and the gun in it to Constables Defagio and Valin; and

g. He took custody of Mr. Mengesha at 20:10 hours, gave him a secondary warning and then transported him to the police station where he was provided with his right to communicate with counsel.

[148] The Court concludes on a criminal standard that the fanny pack that had been over the chest of Mr. Mengesha prior to his arrest, which was seen rising into the air above him and landing in the area of the adjacent bushes, is the same fanny pack that Constable McLean retrieved several minutes later; based upon:

a. The same very particular and identical colour and design of its exterior;

b. Combined with the same identical interior colour;

c. The shortness of time, ten to twelve minutes, the fanny pack was not visible to the three bike officers;

d. The absence of seeing other people in the area of grass between the scrubs and the more easterly roadway during that ten to twelve-minute time period;

e. The proximity between the location of arrest and where the fanny pack was found by Constable McLean; and

f. The extreme unlikelihood that during that ten to twelve-minute time period, a stranger would have:

• seen the fanny pack on the grass which Constable McLean later retrieved;

• opened and placed a loaded handgun in that fanny pack;

• then closed the zippered compartment containing the gun; and

• then walked away leaving the satchel containing the firearm on the grass, a short distance from where the three uniformed officers, the defendant and the three other males were standing.

Conclusion on s. 24 Charter Application

[149] The breaches of the defendant’s Charter rights during his pre-arrest detention as determined are not related to and did not result in the police learning about and obtaining any of the Evidence sought to be excluded on this application. Such breaches, being unrelated to the Evidence, do not permit the exclusion of the Evidence under s. 24 of the Charter.

[150] The arrest of Mr. Mengesha for marihuana possession, which continued to be unlawful on June 29, 2018, and the defendant’s resulting detention were lawful.

[151] The search incident to the arrest of the defendant was lawful and was not conducted in a prohibited manner.

[152] The officers complied and communicated to the defendant his s. 10(b) Charter rights shortly after his arrest for possession of marihuana and was provided with the opportunity to exercise that right shortly thereafter at the police station.

[153] Mr. Mengesha’s Charter rights were not breached upon or following his arrest.

[154] The defendant’s s. 24 Charter application for all of the above reasons accordingly is dismissed.

Whether Prosecution Has Proven Charges on Criminal Standard

[155] Having dismissed the Charter application, the defence acknowledges that the prosecution has proven the essential elements of and that Mr. Mengesha should therefore be found guilty of counts numbered 1, 2, 4, 5, 6, 8, 9, 10 and 16. Based on the combined evidence of the three officers as well as the admissions and concessions at trial as contained in exhibit 1, the Court agrees such charges have been proven on a criminal standard.

[156] Given the conviction of the defendant of counts 1 and 2 as to the cocaine and Fentanyl then found on him, the Court finds the defendant guilty of count 18 namely, breach of the term of his recognizance which prohibited his possession of any unlawful drugs as listed in the CDSA.

[157] The Court finds the defendant not guilty of counts 3, 7 and 17 for the following reasons.

Count 3 - $395

[158] As to count 3, the Court is not satisfied beyond a reasonable doubt that the $395 that dropped out of Mr. Mengesha’s pocket was proceeds of crime.

[159] The defendant was not observed conducting any sale or purchase of drugs or receiving or using any of that money in relation to unlawful conduct. He was observed sitting with three other males beside the canal on an early summer evening smoking a marihuana cigarette.

[160] The fact the defendant then had possession of the Fentanyl for trafficking and was then in possession of a handgun is not evidence than any of this $395 was drug proceeds. No drug related transactions were observed.

[161] It was not uncommon, particularly pre-Covid-19 as in this case, for people to occasionally withdraw and have similar or sums of money on their person for ongoing everyday expenses.

[162] This charge that this money, or part of it, was proceeds of crime is speculation and amounts to no more than that such money or part of it could be proceeds of crime, with no direct evidence to support that charge.

[163] Given the lack of other evidence, the $395 is too small an amount to conclude on a criminal standard that it, or part of it, was proceeds of crime.

[164] The expert’s report in evidence does not on a criminal standard convince me to the contrary.

[165] Count 3 therefore is dismissed.

Counts 7 and 17 – Folding Knife

[166] As to count 7 and 17, being the charges that the defendant as to the folding knife found on his waist band, carried a concealed weapon contrary to s. 90(2) of the Code, and thereby breached the terms of his recognizance to not possess weapons as defined in the Code, I am not satisfied on a criminal standard as to the essential elements of those charges.

[167] A weapon as defined in s. 2 of the Code is:

weapon means anything used, designed to be used or intended for use

(a) in causing death or injury to any person, or

(b)for the purpose of threatening or intimidating any person.

[168] The photograph of the four-inch folding knife in evidence indicates it appears to be, or is very similar to, a utility or work knife, commonly used in garden, garage or housework and as commonly found in the glove compartment or trunk of one’s vehicle.

[169] There is no evidence as to the defendant’s use or intended use of this knife.

[170] The fact Mr. Mengesha has been convicted of possession of Fentanyl to traffic does not prove that he then had this knife on his possession to be used as a weapon. The knife may have been used to cut up drugs.

[171] Mr. Mengesha at the time was in possession of a loaded handgun which meets the above s. 2 weapon definition and purposes. He did not need this folding utility knife for such s. 2 purposes.

[172] The knife was found on the defendant’s waist band. He at the time was wearing shorts and a T-shirt. The evidence as to any concealment thereof is lacking.

[173] The expert’s report in evidence does not satisfy me on a criminal standard that this folding knife was a s. 2 weapon, namely used, designed or intended for use to cause injury, death, to threaten or intimidate.

[174] Count 7 for these reasons has not been proven on a criminal standard and is therefore dismissed.

[175] Given the dismissal of count 7, count 17 is therefore dismissed.

Justice P. Kane

Released: March 11, 2021

COURT FILE NO.: G-5363

DATE: 2021/03/11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

AMANUEL KEBEDE MENGESHA

Accused

REASONS FOR JUDGMENT

Justice P. Kane

Released: March 11, 2021