COURT FILE NO.: CR-20-392-00

DATE: 2021 05 25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

C. Vanden Broek, for the Crown/ Respondent

• and -

JEVAUN JAMES

L. Johnson, for the Applicant

HEARD: April 7, 8, 9, 2021 via video conference

RULING ON PRETRIAL MOTIONS

André J.

[1] The applicant brings a motion seeking an order to either stay the charges against him because the police officer who arrested him on May 20, 2019 on gun-related charges allegedly violated his sections 7, 8, 9, 10(a) and 10(b) rights under the Canadian Charter of Rights and Freedoms (“The Charter”), or to exclude the evidence obtained on account of the Charter violations. The Crown is also seeking an order declaring that Mr. James’ post arrest statement to the police is voluntary.

SUMMARY OF THE FACTS

[2] On May 20, 2019, a complainant called the Peel Regional Police Force at approximately 6:33 p.m. and advised them that she had seen a black male point a gun at someone else from a black jeep. Five to six black persons, including a black female, got into the jeep at 43 Drake Boulevard in Brampton. The complainant stated that the black male who pointed the gun was wearing a black “du-rag” and a grey jumpsuit.

[3] Cst. Steen McDonald heard the call and drove to the location of 43 Drake Blvd., in Brampton where the incident allegedly occurred. The area is a residential area with the crescent shaped Drake Blvd. having two exits. At 6:42 p.m., he positioned himself at the west exit of the street. Before long, he saw a dark coloured four-door Honda sedan approach his location. The vehicle was on Drake Boulevard. There were three black males inside. The occupants were all wearing hoodies. The rear passenger wore a grey sweater and either a hat or du-rag.

[4] The driver of the car made a right turn onto Balmoral Drive. Cst. McDonald followed the car because he believed that the car had been involved in the alleged incident. The rear passenger was wearing a grey sweater and potentially a black “du-rag”. Constable McDonald later testified that “all I saw was a hat line”.

[5] He followed the car to a plaza where it parked in front of a grocery store. The occupants exited the car. Cst. McDonald testified that he then “conducted a traffic stop”. As he exited his marked police cruiser, he told the males to put their hands on their vehicle and commanded them not to move. He advised them they were under arrest for weapons dangerous as soon as he asked them to put their hands up. The males complied with the order.

[6] The officer approached the vehicle and moved the males to the rear of the vehicle. He did a pat down search of the males. While doing so, other officers arrived at the scene. Constable McDonald did not find anything on the males during his pat down search of them. He then searched the vehicle for anything related to the incident but found nothing.

[7] Cst. McDonald decided to do a second search of Mr. James because he was wearing multiple layers of clothing which the officer thought could easily conceal an object. Mr. James was wearing a sweater, baggy pants and gym shorts underneath. While patting down the waist area, Cst. McDonald felt the handle of a firearm. He then handcuffed Mr. James behind his back. He placed the gun on the trunk of his cruiser and placed Mr. James in the rear of the cruiser.

[8] At 6:45 p.m., Cst. McDonald arrested Mr. James for possession of a concealed firearm. At 7:07 p.m. he read Mr. James his rights to counsel, caution and secondary caution and advised him of Legal Aid. Mr. James replied that he understood what the officer read to him. Cst. McDonald then left the scene and drove to 21 Division and arrived there at 7:24 p.m.

[9] He left a voicemail with duty counsel at 7:38 p.m. Duty counsel called back at 7:47 p.m.

[10] The officer acted as a “scribe” when Mr. James gave a videotaped statement that evening. There were no threats, promises or inducements made to Mr. James.

[11] The officer drew a sketch of Drake Blvd. The sketch showed that there are two crescent-shaped streets linked to Drake Blvd. Cst. McDonald also testified that the du-rag worn by Mr. James appeared black while being worn but was in fact light brown in colour.

POSITION OF THE PARTIES

Position of the Applicant

[12] Ms. Johnson submits the following:

a. Cst. McDonald’s decision to arrest Mr. James was motivated by racial profiling;

b. Cst. McDonald violated Mr. James s. 10(a) Charter rights by not reading him his rights promptly after arresting him; and not fully explaining the differences between speaking to his own lawyer and speaking to duty counsel;

c. The statement given by Mr. James was not voluntary because the interviewing officer made a number of third party threats to Mr. James, and repeatedly undermined the advice which duty counsel gave to him regarding his right to remain silent.

Position of the Crown

[13] Ms. Vanden Broek submits the following:

a. Cst. McDonald acted lawfully in detaining and then arresting the occupants of the car based on the information he had received about the incident. Accordingly, racial profiling played no role in Mr. James’ arrest. There were “objectively discernible facts related to a specific incident, which justified Mr. James’ arrest”. The Crown relies on the case of R. v. Clayton, 2007 SCC 32, [2007] 2 R.C.S. 725 for the proposition that the detention and arrest of Mr. James was lawful.

b. Cst. McDonald did not breach Mr. James’ s. 10(b) Charter rights. He gave cogent reasons for the delay between the time of arrest at 6:45 p.m. and the time when the rights were given at 7:07 p.m. These included the fact that the officer had three accused to deal with, received instructions from the supervisor and was required to “safety” the firearm before taking it to 21 Division;

c. The statement was voluntary given that there were no threats, promises or inducements made to Mr. James by any police officer who interacted with him.

ANALYSIS

[14] This motion raises the following issues:

a. Did Cst. McDonald racially profile Mr. James?

b. Did Cst. McDonald violate Mr. James’ s. 10(a) Charter rights?

c. Did Cst. McDonald violate Mr. James’ s. 10(b) Charter rights?

d. Was Mr. James’ police statement voluntary?

A. Did Cst. McDonald racially profile Mr. James?

The Law

[15] In R. v. Richards, 1999 CanLII 1602 (ON CA), [1999] O.J. No. 1420, at para. 24, the Court of Appeal noted that:

Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.

[16] Racial profiling may be the result of overt, subconscious or institutional racial bias: R. v. Brown, 2003 CanLII 52142 (ON CA), [2003] O.J. No. 1251, at para. 8. Racial profiling can rarely be proven using direct evidence; it must be inferred from the circumstances of the police action: see Peart v. Peel Regional Police Services Board, 2006 CanLII 37566 (ON CA), [2006] O.J. No. 4457, at para. 95.

[17] Racial profiling is improper even if it was only one of other factors in a decision to detain or arrest a detainee: Brown v. Durham Regional Police Force, 1998 CanLII 7198 (ON CA), [1998] O.J. No. 5274; Richards; R. v. Dudhi, 2019 ONCA 665, at paras. 62-63. The Court of Appeal noted in Dudhi that:

Where race or racial stereotypes are used in any degree in subject selection or subject treatment, there will be no reasonable suspicion or reasonable grounds. The decision will amount to racial profiling.

[18] Similarly, the Supreme Court of Canada noted in R v. Le, 2019 SCC 34, 375 C.C.C. (3d) 431 at para 76 that racial profiling occurs when race or racial stereotypes are used, consciously or unconsciously, and to any degree, in the selection or treatment of a subject. See also R v Sitladeen, 2021 ONCA 303, at para. 50.

Analysis

[19] Cst. McDonald responded to a police complaint about a male black pointing a gun at a person at 43 Drake Boulevard. The male had a black “du-rag and a grey jumpsuit”. This male, along with four or five others, got into a black jeep. A dark car was associated with the jeep.

[20] Cst. McDonald went to the area and parked at one end of Drake Blvd. A dark coloured Honda sedan approached on Drake Blvd. All three male occupants were black. The back passenger wore either a hat or a du-rag. The officer could only see what he described as a “hat line”. He followed the vehicle to a nearby plaza and almost immediately after the males exited the car, placed them under arrest for weapons dangerous.

[21] It is clear that the generic description of the gun-toting male applied to thousands of black males in the City of Brampton. I can take judicial notice of the fact that the wearing of a du-rag is quite ubiquitous among youth of all nationalities and ethnicities. Similarly, the description of a dark car is so broad that it would apply to a significant number of vehicles in the city including a large number driven by black males. Additionally, the area where the incident allegedly occurred is a residential area with many townhouses and some detached residences, according to Constable McDonald. Furthermore, the sketch drawn by the officer of the area shows that two streets end on Drake Boulevard, thereby suggesting that a dark sedan driving along the street could have come from not only 43 Drake Boulevard but also from a residence on either of the two streets attached to Drake Boulevard.

[22] I agree that Cst. McDonald had an obligation as a police officer to investigate the males in the car for the following reasons. First, they matched the general description given by the 911 caller. Second, they occupied a dark car which was associated with the black jeep reported by the caller. Third, the vehicle was on Drake Blvd. where the incident allegedly occurred. Fourth, the vehicle was seen on Drake Blvd. a mere nine minutes after the 911 call. Fifth, one of the occupants wore a grey sweater and what appeared to have been a du-rag. The clothing of this male did not fully match the description given by the 911 caller but it generally matched the description. In my respectful view, the constellation of these factors gave rise to a reasonable suspicion that the three occupants of the vehicle were involved in the incident reported by the 911 caller.

[23] Ms. Johnson submits that racial profiling played a role in the detention and arrest of Mr. James given that his clothing, colour of his du-rag and the car in which he travelled did not match the description given by the 911 caller. However, requiring the police to stop only those vehicles matching the description given described by the 911 caller, “imposes an unrealistic burden on the police and one which is inconsistent with their duty to quickly respond to serious allegations of crimes in a timely manner”: see R. v. Clayton, [2007] 2 S.C.R. at para. 37.

[24] Second, this is not a case as in Brown, where a police officer as in Brown, stopped a black motorist driving an expensive car, or a traffic stop as in R v. Barth 2021 BCSC 418. As the Supreme Court of Canada noted in Clayton, at para. 47, “had the caller described individuals who were white, the police would not have had reasonable grounds for the continued detention on non-white occupants. In my view, the vehicle was followed because it generally matched the dark car which the 911 caller described, its occupants were black, one appeared to have a du-rag and grey item of clothing and the vehicle was seen on the street in proximity to where the incident was reported to have taken place.

[25] That said, in my view, racial profiling played a role in the arrest of Mr. James, even if a minimal one. He was not in a black jeep, as the 911 caller reported. He was not wearing a grey jumpsuit neither was he wearing a black du-rag. He did not act in any suspicious manner neither did he say anything that could have raised a suspicion he was involved in the alleged incident. On the contrary, he was cooperative with the police. He was arrested because he was a young black male in a dark vehicle wearing black jeans and a grey hoodie which did not match the description given of the gun-toting black male. The general description of the male matches an unknown number of black males in the neighbourhood where the incident allegedly occurred. To that extent, the officer racially profiled Mr. James.

[26] I am also concerned that to some degree, the officer tailored his evidence to justify why he arrested the three males and placed them under arrest. He testified in chief that they all were wearing hoodies. As a racialized person who has lived in Peel Region for more than three decades, I am aware that there is a perception that young black males wearing hoodies at night in motor vehicles are generally up to no good.

[27] I make this point because under cross-examination, Ms. Johnson put to the officer that he testified at the preliminary hearing in this matter on August 17, 2020 that he did not know what the driver was wearing on his head. He also could not recall what the front passenger in the car was wearing on his head. Yet approximately nine months following the preliminary hearing, he recalled that they were wearing hoodies.

[28] Second, the officer testified at the preliminary hearing that when the vehicle parked in front of the Circle K parking lot, “I threw my lights on.” The significance of this testimony is that by putting on his lights, the officer would have been able to see that the colour of the du-rag worn by Mr. James and his black jeans did not match the description given by the 911 colour. That would have called into question whether the officer had requests reasonable and probably grounds to immediately arrest Mr. James for weapons dangerous as he exited the car.

[29] Constable McDonald however, contradicted his earlier testimony at the preliminary hearing. He testified that “my recollection today is I didn’t throw my lights.” He stated that his lights were turned off when the car’s occupants were getting out of the car.

[30] The Crown relies on the Supreme Court of Canada’s decision in Clayton for the contention that Constable McDonald did not racially profile Mr. James. In that case, a 911 call at 1:22 a.m. indicated that four of approximately ten black males in a parking lot in front of a strip club were openly displaying handguns. The caller identified four vehicles. Police officers immediately attended the scene and set up surveillance posts around the club’s parking lot which had two exits. A car with two black males drove towards the rear exit. The police stopped the vehicle within five minutes of the 911 call. The car was not one identified by the 911 call. On stopping the car, two police officers observed that the occupants were black males. One officer asked the driver to get out of the car due to officer safety. The driver protested but got out of the car. When questioned by the police the passenger avoided making eye contact and gave evasive answers. He wore gloves although the weather was not “glove weather”. The passenger complied with a request to exit the car but blocked the officer’s visual access to the inside of the car. When the officer sought to direct the passenger to the back of the car, he shoved the officer and ran away. Upon being caught, officers found a loaded, prohibited handgun in his pocket while the driver was also found to have a loaded prohibited handgun under his jacket. Only then were they arrested and charged with firearms offences.

[31] Durno J. convicted both accused and found nothing wrong with the officers’ decision to stop all vehicles coming from the parking lot. On appeal, Doherty J.A., for a unanimous court, held that the roadblock was unlawful because it was not tailored to only stop the four vehicles identified in the 911 call. He then held that the detention of the two and ensuing searches violated s. 9 and s. 8 of the Charter respectively.

[32] On appeal, the Supreme Court of Canada demurred. The majority found that the police acted lawfully in stopping the vehicle based on their reasonable belief there were handguns in a public place which posed a genuine risk to public safety. Abella J. for the majority, also found that the police were further justified in continuing the detention and conducting a protective search of the two males. She noted at paras. 32 and 33:

32 In my view, both the initial and the continuing detentions of Clayton and Farmer’s car were justified based on the information the police had, the nature of the offence, and the timing and location of the detention.

33 The police set up the initial stop in response to a 911 call identifying the presence of about ten “black guys”, four of them with guns. The police described what they were doing as setting up perimeter surveillance posts to secure the confined geographical area where the offence they were investigating had reportedly taken place. The police had reasonable grounds to believe that there were several handguns in a public place. This represented a serious offence, accompanied by a genuine risk of serious bodily harm to the public. The police were entitled to take reasonable measures to investigate the offence without waiting for the harm to materialize and had reasonable grounds for believing that stopping cars emerging from this parking lot would be an effective way to apprehend the perpetrators of the serious crime being investigated.

[33] The Crown submits that the same reasoning applies in this case. The police had good reason to believe that there was a handgun in a public place. They set up at both exits of Drake Blvd. Cst. McDonald saw a car with three black males on Drake Blvd., followed it, immediately arrested the three occupants and then conducted a search incident to their arrest.

[34] However, in some important respects, the facts in Clayton are distinguishable from the case at bar. The Supreme Court of Canada at paras. 44-46, held that the following facts “gave rise to a reasonable suspicion” that the occupants of the Jaguar could be in possession of the handguns in the 911 call”:

a. The police knew that some of the people leaving the parking lot would have guns;

b. They knew that the suspects were black males;

c. They discovered, after stopping the Jaguar, that the two occupants matched the race of the suspects mentioned in the 911 call;

d. That Clayton was wearing leather gloves despite being a passenger and despite the weather not being glove weather, and that he was giving strange and evasive answers to an officer’s questions;

e. That it took three requests to get Farmer out of the car;

f. That the Jaguar was the first vehicle to leave the parking lot within minutes of when the crime was reported and it avoided leaving by the front exit, where officers were arriving and instead headed towards the rear exit.

[35] This constellation of circumstances, in my view, are absent in this case. Other than seeing a dark car and three black males, one of whom wore a brown du-rag and grey sweater, rather than a grey jumpsuit, and the geographical location and temporal connection of the accused to the scene of the incident, there is nothing more which gave rise to reasonable and probable grounds to arrest all three. Unlike the facts in Clayton, the car could have come from any of the residences on the two streets that ended on Drake Boulevard. None of the occupants of the car, unlike Mr. Clayton and Mr. Farmer, acted in a manner which gave rise to a reasonable suspicion that one of them could be in possession of the handgun reported in the 911 call. None of them said anything that could have raised a reasonable suspicion that they were involved in the alleged incident.

[36] Even if Cst. McDonald had a reasonable suspicion that one of the three males was in possession of a firearm, that did not amount to reasonable and probable grounds to arrest any of the males. In R. v. Storrey, [1990] 1 S.C.R. 244, at p. 250, Cory J. noted the following:

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. This is to say, 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.

[37] In R. v. Canary, 2018 ONCA 304, at paras. 21-23, Fairburn J.A. noted that:

[21] To fulfill the objective requirement, the officer’s belief must be objectively reasonable in the circumstances known to the officer at the time of arrest: R. v. Storrey, [supra]; R. v. Bush, 2010 ONCA 554, at para. 38; Saciragic, [2017 ONCA 91] at para. 16. The objective inquiry asks whether “a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable[1] grounds existed to make the arrest”: Storrey, at pp. 250-51.

[22] When considering whether an officer’s subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47. Determining whether sufficient grounds exist to justify an exercise of police powers is not a “scientific or metaphysical exercise”, but one that calls for the application of “[c]ommon sense, flexibility, and practical everyday experience”: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73.

[23] The reasonable grounds standard does not require the establishment of a prima facie case or proof beyond a reasonable doubt. The test is met where, based on all of the circumstances known to the officer, “credibly-based probability” replaces suspicion: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166; Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 167; R. v. Dhillon, 2016 ONCA 308, 335 C.C.C. (3d) 144, at para. 25; R. v Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 33.

Application of the Law to the Facts

[38] Regarding the arrest, Cst. McDonald testified as follows:

Ms. Vandenbroek: Q. Go ahead. What happens?

A. Oh, so, as I get out of the vehicle, I advise them to put their – all their hands up, and they were getting out of the vehicle as I was getting out of the vehicle. They were cooperative. They complied. They put their hands on the vehicle. I approached the vehicle, then as they moved I kind of moved them to the rear of the trunk of the car. It’s just easier to manage with three parties that are under arrest and I am the only person there at that time, and at that point, with all of their hands on the car, I quickly did a pat-down search on the three parties that were under arrest.

Q. Now, you didn’t mention an arrest.

A. Sorry, when I – when I made the traffic stop, I placed them under arrest for weapons dangerous.

Q. At what point?

A. At the point, as soon as I advised them to put their hands up, they are already under arrest.

Q. Okay. What happens then?

A. So, I placed the three parties under arrest, they were contained to the rear of the trunk, conducted a pat-down search on the three parties and as I was conducting the pat-down search, further officers started to show up on the scene.

[39] Even if Cst. McDonald’s detention of Mr. James and the two occupants of the vehicle was lawful as an investigative detention, did he have the requisite reasonable and probable grounds to arrest Mr. James?

[40] In my view he did not. He may have subjectively believed that he had reasonable and probable grounds to do so. However, those grounds are not justifiable on an objective basis. The men did not act nervously. None tried to flee. They did not say anything suspicious to the officer. The officer did not observe any telltale signs that Mr. James was carrying a firearm. There were no utterances to that effect. Mr. James did not attempt to discard anything prior to or post arrest. After he stepped out of the car, Cst. McDonald could see that he was not wearing a grey jumpsuit or a black du-rag. In these circumstances, Cst. McDonald’s decision to arrest Mr. James cannot be justified on objective grounds. To that extent, I find that his arrest of Mr. James was unlawful.

B. Did Cst. McDonald violate Mr. James’ s. 8 Charter rights?

[41] In my view, he did. As long as the arrest of Mr. James was unlawful, the subsequent searches of Mr. James were unlawful. The fact that the search could have been lawful if Mr. James had been detained for investigative purposes does not “cure” the fact that the searches of Mr. James were unlawful: Hunter v. Southam. While the second search could not be described as a strip search as Ms. Johnson submits, it was clearly more intrusive than the initial pat down search.

C. Did Cst. McDonald violate Mr. James’ s. 10(a) Charter rights?

[42] Cst. McDonald arrested Mr. James at 6:45 p.m. and read him his rights to counsel at 7:07 p.m. He testified that during this period he was required to supervise other officers, safety the firearm and attend to other duties associated with his investigation. However, the officer’s testimony regarding what transpired between 6:45 p.m. and 7:07 p.m. does not explain why, following his arrest of Mr. James, he delayed twenty-two minutes before reading him his rights to counsel. Cst. Rebecca Micallef testified that by the time of the arrest more officers had arrived at the scene and were taking direction from a supervisor. The accused had been arrested and handcuffed and the firearm secured. Cst. McDonald testified that he put out a call at 6:54 p.m. and reported that the gun was a real gun. There is simply no evidence to suggest that turned his mind to complying with s. 10(a) of the Charter immediately following Mr. James’ arrest. In my view, Cst. McDonald violated Mr. James’ s. 10(a) Charter rights by failing to promptly read him his rights to counsel following the arrest.

D. Did the officers violate Mr. James’ s. 10(b) Charter rights?

[43] In R. v. Willier, 2012 SCC 37, at para. 33, the Supreme Court of Canada noted that if a detainee requests to speak to a specific counsel, the police must take reasonable steps to contact counsel and refrain from questioning the detainee until the opportunity was provided.

[44] Ms. Johnson submits that given that Mr. James was young and unsophisticated, Cst. McDonald should have made efforts to ascertain the name of Mr. James’ lawyer rather than “foist duty counsel on him”.

[45] Cst. McDonald had no recollection of Mr. James giving him the name of a lawyer. Cst. Saurabh Ralh, a cells officer who interacted with Mr. James at 21 Division, testified that he called a lawyer who turned out to be duty counsel at 7:38 p.m. and that if Mr. James had the name of a lawyer he would have tried to obtain his or her number. Cst. Ryan Haggert took a video statement from Mr. James and read him his rights to counsel at least three times during the interview. Mr. James never asked to speak to his own counsel. Mr. James advised that he was satisfied with the advice he received from duty counsel. At one point during the interview, Cst. Haggert asked Mr. James, “who is your lawyer?” Mr. James replied, “I don’t know”.

[46] In my view, Cst. McDonald and Cst. Haggert fully advised Mr. James of his rights to counsel. Mr. James did not give the officers the name of a lawyer and indicated, when asked about the name of his lawyer, that he did not know. He was also content with the advice received from duty counsel. For these reasons, I am content that the officers fulfilled their legal obligation to fully advise Mr. James of his rights to counsel.

[47] Ms. Johnson also submits that the interviewing officer undermined the advice given to Mr. James by duty counsel and therefore violated his s. 10(b) rights. For example, in response to being told by Mr. James that duty counsel advised him to remain silent, Cst. Haggert told him: “You either need to explain to me why … or you need to take account.”

[48] On another occasion, Cst. Haggert told Mr. James, “They can’t make your decision for you”. The officer also told Mr. James: “Sitting and saying nothing is not a good idea”.

[49] He further told Mr. James, “Like you can’t just sit there and say nothing.”

[50] In my view, these utterances by Cst. Haggert did not undermine Mr. James’ rights to counsel. The officer was not required to stop questioning Mr. James after he asserted his right to remain silent: R. v. Singh, 2007 SCC 48, at para. 53.

[51] This is unlike the case in R. v. Othman, [2018] O.J. No. 6751, where the interviewing officer suggested to the accused that he would not be believed if he refused to speak during the police interview. The officer stopped short of telling Mr. James that it would be better for him for court purposes, if he gave a statement to the police.

E. Was Mr. James’ statement voluntary?

[52] It is conceded that there is no evidence that any officer who dealt with Mr. James threatened, coerced, or induced him to give a statement. Neither is there evidence that Cst. Haggert denied any request to him from Mr. James. Rather, Ms. Johnson submits that third party threats to Mr. James, made by Cst. Haggert, vitiated the voluntariness of Mr. James’ statement to the officer.

[53] For example, during the interview, the officer told Mr. Haggert: “[Y]ou might have an opportunity to spare your friends and not take them down with you.”

[54] On another occasion, Cst. Haggert stated:

These two individuals now are gonna have firearms charges. They’re gonna have to have their parents bail them out of prison. They’re gonna have to pay for lawyers. They’re gonna have to be dragged through the judicial process, courts, trials. Ultimately, maybe even convictions. What I want to know from you, Jevaun, is if that is justified?

[55] At another point during the interview the officers said, “If you wanna take your friends down too that’s, that’s cool”.

[56] Furthermore, the officer stated that Mr. James’ two friends would see his statement where he refused to take responsibility for his actions and added: “And if I were them, I would be pissed, really pissed.”

[57] The officer also suggested to Mr. James that taking responsibility for his actions “would be something an honourable person does”.

[58] Cst. Haggert’s appeal to Mr. James’ sense of honour and to “spare his friends” is not improper. The same cannot be said however, for his comment that if Mr. James refused to take responsibility for the gun found in his possession, his friends “would be pissed, really pissed”. In my view, this is a caution or warning to Mr. James that the other two occupants in the car could harm him if he did not take responsibility for the gun.

[59] A number of cases have held that threats involving third parties may constitute an inducement that vitiates the voluntariness of a statement: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 51-52; R. v. Spencer, 2007 SCC 11, 2007 S.C.C. 11, at paras. 13 and 35; R. v. M.(M.S.), 2014 ONCA 441, at para. 9. Whether or not it does so may depend on a finding whether the detainee’s will was overborne by the threats or inducements. In R. v. Oickle, the Supreme Court of Canada noted at para. 57 that efforts to convince an accused to confess, only becomes improper when, along with other factors, it raises a reasonable doubt about whether the accused’s will was overborne.

[60] In this case, Mr. James told Cst. Haggert that he had the gun for his own safety. Despite repeated requests, he gave no further information about the circumstances surrounding his possession of it. This suggests that the veiled threat from the officer concerning the two other occupants of the vehicle insufficient to raise a reasonable doubt about whether Mr. James’ will was overborne.

[61] Based on the above, I find that Mr. James’ statement to Cst. Haggert was voluntary.

EXCLUSION OF EVIDENCE

[62] Having found Mr. James’ arrest to be illegal and the two searches of him, unlawful, I must consider whether the gun should be excluded. In that regard, I must apply the tripartite test set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, namely:

a) the seriousness of the Charter-infringing conduct,

b) the impact on the accused; and

c) the effect of exclusion on the administration of justice.

Seriousness of the Charter-infringing Conduct

[63] Cst. McDonald arrested Mr. James without the requisite reasonable and probable grounds to do so. The fact that he could have detained him for investigative purposes and do a pat down search for safety concerns does not minimize the seriousness of the conduct. The legal test for a lawful arrest has been established for decades and one which the officer who had been a Peel Police officer for a little short of five years at the time of the arrest, should have been very familiar with. Similarly, Cst. McDonald violated Mr. James’ s.10(a) Charter rights by failing to promptly advise him of his rights to counsel following the arrest. These factors favour exclusion of the evidence.

Impact on the Accused

[64] The unlawful arrest of Mr. James led to the two unlawful searches of Mr. James, the second of which resulted in the location of the gun tucked in his waist. I am mindful that the gun could have been discovered by searches incidental to the lawful investigative detention of Mr. James. This detention would have been justified because of the description of the males reported by the caller, the general similarity of Mr. James’ clothing to that given by the called, the proximity to the scene of the reported crime and the temporal connection between the 911 call and the time when Cst. McDonald first saw the car. But the unlawful arrest of Mr. James resulted in a violation of his liberty and the repeated search of his person.

[65] In my view, this factor favours exclusion of the evidence found on Mr. James.

Impact on the Administration of Justice

[66] The evidence sought to be excluded is a gun. Having resided in Peel Region for upwards of three decades, I can take judicial notice of the fact that the region has been battling the scourge of gun violence for many years. Many families have suffered the deleterious effects of such violence which has taken a number of lives and robbed families of relatives. Like other stakeholders in the community, the criminal justice system has to play its role in reducing the proliferation of illegal firearms in the community.

[67] In recognition of this reality, Brown J. noted in a dissenting opinion in R. v. Omar, 2018 ONCA 975, [2018] O.J. No. 6346, which was adopted by the Supreme Court of Canada in R. v. Omar, 2019 SCC 32, [2019] S.C.J. No. 32, that courts should not “fail to give some recognition to the distinctive feature of illegal handguns – which are used to kill people or threaten them with physical harm, nothing else and instead, to treat them as fungible with any other piece of evidence risks distorting the Charter’s s. 24(2) analysis by wrenching it out of the real-world context in which it must operate”. Similarly, Nordheimer J.A. also noted in a dissenting opinion in R. v. James, 2019 ONCA 288, at para. 88, which was adopted on appeal by the Supreme Court of Canada (2019 SCC 52) that, “the pull of the third factor towards admissibility is particularly strong when the evidence is reliable and critical to the Crown’s case”. Finally, in R. v. Reid, [2019] O.J. No. 288 (Ont. C.A.), the Ontario Court of Appeal noted the following in upholding a lower court’s decision not to exclude a firearm under s. 24(2) of the Charter: “[B]oth the community in question and the reputation of the administration of justice would be harmed were this court to rule that firearm evidence inadmissible”.

[68] Additionally, the gun is real evidence and is very important to the Crown’s case.

[69] That said, as noted by De Sa J. in R v. Sappleton, 2021 ONSC 430 at para. 76, “to permit the third branch [of Grant] to be used as a means to routinely excuse Charter violations would inevitably undermine the significance of Charter rights altogether”.

[70] Similarly, the Supreme Court of Canada noted in Grant at para. 84 that, “The short-term public clamour for a conviction in a particular case must not deafen the s.24(2) judge to the longer-term reputation of the administration of justice”.

[71] The Charter breaches in this case are quite serous. Mr. James was unlawfully arrested. He was searched unlawfully on two occasions, with the second search being more intrusive than the first. Racial profiling played a role in the decision to arrest Mr. James. I am also concerned that the officer may have tailored part of his testimony to justify his arrest of Mr. James and relied on racial stereotypes in doing so.

[72] For these reasons, Mr. James’ arrest should not be condoned by this court. The reputation of the administration of justice would be harmed, in my view, if the evidence is not excluded.

CONCLUSION

[73] The firearm evidence is excluded. Mr. James’ statement to the police is voluntary.

[74] Mr. James is remanded, out of custody, to July 23rd, 2021, 10:00 TBST.

__________________________

André J.

Released: May 25, 2021