ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TOMMY VAN

Accused

Tom Goddard, for the Crown

Benjamin Moss, for the Accused

HEARD: April 26, 27 and 30, 2021

Allen J.

REASONS FOR JUDGMENT

TEMPORARY SUSPENSION OF THE COURT

[1] This application was heard and decided during the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations effective March 16, 2020. It has been decided that cases involving urgent matters that can be decided on written materials or on consent and not requiring a courtroom would be conducted by teleconference or videoconference.

[2] The parties agreed that this trial and application proceed by videoconference. A registrar and court monitor were present in a courtroom to maintain the court record. The judge, witnesses and counsel attended remotely by videoconference. Materials were delivered and filed with the court by email.

THE CHARGES

[3] The accused, Tommy Van, stands charged with nine possession of firearm and ammunition charges including possession of a concealed firearm, with serial number defaced, for a dangerous purpose with readily available ammunition and is further charged with being without licence or authorization and with careless storage of ammunition for a dangerous purpose.

[4] It is alleged that on September 5, 2018, Mr. Van carried in a satchel a prohibited Glock Model 27 semi-automatic firearm loaded with 40 calibre Smith & Wesson ammunition knowing he was without license or authorization to possess the firearm. There was no bullet in the chamber and the serial number on firearm was defaced.

THE PROCEEDING

[5] On consent this matter proceeded as a combined trial and a voir dire which raised challenges under sections 8, 9 and10 of the Charter of Rights. The burdens of proof on the trial and Charter applications vary. The Crown carries the burden beyond a reasonable doubt on the trial. On the voir dires, the defence has the burden on a balance of probabilities on the s.9 (arbitrary detention) and 10 (right to counsel) applications and the Crown carries the same burden on s.8 (search and seizure).

OVERVIEW OF FACTS

DC Kharbar’s Evidence

[6] On September 5, 2018, 4 officers DC Kharbar, PC Murphy, PC Fenty and Sgt Adams, from the Toronto Police Service, 14 Division, were involved in a firearm investigation in the Parkdale area of Toronto. DC Kharbar, PC Murphy and PC Fenty testified at the trial. PC Murphy and PC Fenty were with the Community Response Unit (the “CRU”) on bike patrol in the area at the time.

[7] DC Kharbar had been a police officer for about 12 years in September 2018. He was the first of the 4 officers to receive the information that initiated the investigation. At some point between the start of his shift at 12:00 p.m. and 5:02 p.m., DC Kharbar received information from PC Hildebrand who is with a unit at police headquarters. DC Kharbar did not know and had no previous dealings with PC Hildebrand.

[8] DC Kharbar had received information he passed over to 14 Division from a confidential source about persons known to be carrying firearms. The information DC Kharbar provided from his memo notes was that:

• several Asian males were at 8 MacDonnell Ave, “right now with guns”.

• all in their early 20s.

• all had black “baby glocks”, a firearm (a smaller weapon than the Glocks carried by the police).

• all dressed all in black.

• 1 chubby.

• 1 in shorts

• 1 with braids and a side bag.

• 1 wearing a Gucci belt.

• the source saw the gun(s)

• a group of Asian males were around the barbershop.

[9] DC Kharbar contacted PC Murphy and requested that the CRU assist with the investigation. He informed PC Murphy that a firearm investigation was underway and sought help from PC Murphy and his partner, who were in uniform on bikes, to determine if the information could be corroborated.

[10] DC Kharbar drove to the area with Sgt Adams in an unmarked police vehicle. They did a drive by going north on MacDonnell Ave. and observed a group of males. Nearby on Queen St. W. was a barbershop and a variety store. DC Kharbar observed:

• 10 males, ages from 15 - 25 years of age, and

• 5 older males in about their 40s.

[11] The younger males were closer to the variety store and the older ones closer to the barbershop. DC Kharbar conceded he observed no activity by the males that would signal any criminality. DC Kharbar took particular note in his memo book of 2 Asian males in their 20s sitting on a concrete planter with the following description:

• one wearing a black t-shirt, dark blue jeans with a beige or brown belt, possibly a Gucci or Louis Vuitton brand, and carrying a satchel across his chest.

• the other male with long braids that hung a few inches below his shoulder.

[12] After those observations DC Kharbar told PC Murphy and PC Fenty to “move in.”

[13] DC Kharbar and Sgt Adams followed another male who was wearing a white t-shirt and black jogging pants into the variety store because the male seemed to have something heavy in his pocket. He arrested, handcuffed and searched that male and discovered he was carrying a large amount of change. He kept that male detained and exited the store.

[14] Importantly, at the preliminary inquiry, and initially under cross-examination at trial, DC Kharbar could not recall precisely what instructions or information he provided to PC Murphy beyond the basic information about a firearm investigation being conducted at the identified location. There is no evidence about PC Murphy telling the CRU to detain and search suspects.

[15] Also important to what instructions DC Kharbar provided the CRU officers is that he stated at the preliminary inquiry and in-chief at trial that he did not recall whether or not he directed them towards any specific individuals. He testified he thought the CRU officers were already on the scene when he and Sgt Adams entered the variety store because he had already asked them to “move in.” At trial for the first time, DC Kharbar expanded his evidence to say he might have even pointed to Mr. Van when he exited the store. That evidence deserves little weight being an after-thought provided as only a possibility.

[16] DC Kharbar’s evidence evolved further in another critical area and that was with respect to whether he recognized any of the persons he encountered at the scene. At trial under-cross-examination, he testified for the first time that he recognized two of the individuals he saw at the scene. He referred in that regard to the male sitting on the concrete planter whom he claimed he recognized when driving by the scene. That person was not detained as he ran away and was never located. He testified for the first time that he recognized him as being a member of an area street gang.

[17] DC Kharbar’s evidence was somewhat ambiguous about recognizing Mr. Van. He first stated at trial that he recognized him during his drive by but on further questioning he indicated he did not recognize him until he was taken into custody.

[18] As DC Kharbar exited the variety store, PC Murphy was searching one of the males up against the wall, later identified as Tommy Van. PC Murphy yelled, “Gun!” DC Kharbar indicated that he did not notice any other males being detained against the wall. Unlike PC Murphy’s evidence, DC Kharbar said he only saw one satchel and did not observe any satchels sitting on a concrete planter.

[19] DC Kharbar ordered all 10 of the males ranging between ages 15 and 25 years to be searched “thoroughly”. DC Kharbar believed one of the males was not Asian, but rather East Indian.

PC Murphy’s Evidence

[20] PC Murphy had been an officer for about 5 years in September 2018. He received a phone call from DC Kharbar at 5:02 p.m., and as noted above, he asked PC Murphy to assist with the investigation. DC Kharbar directed PC Murphy to proceed to Queen St. W. and MacDonnell Ave. to investigate Asian males regarding a firearm. DC Kharbar’s description of the males as told to PC Murphy was scant:

• 3 Asian males, dressed all in black,

• possibly wearing shorts

• possibly carrying small bags containing a firearm.

[21] The instruction was that PC Murphy and PC Fenty were to proceed to the area and detain the males when they came upon them.

[22] PC Murphy was told to stand by for more information. At 5:18 p.m., PC Murphy received a radio call that males were at the barbershop at the Queen St. W. and MacDonnell Ave. location. No further description or instructions were given.

[23] PC Murphy and PC Fenty biked over to the location. PC Murphy observed 2 males he believed matched the description given by DC Kharbar - that they were Asian, wearing an article of black clothing and carrying satchels. PC Murphy said there were a total of 10 - 11 people at the location. He detained three people and they complied when the officer ordered them up against the wall. Two of the males wore satchels. One of the males with a satchel was Mr. Van.

[24] PC Murphy did not inform the males of why they were being detained until they inquired. He told them their detention was in relation to a firearm. He did not give the suspects rights to counsel and caution. He said he did want to interrupt detentions involving firearms by reaching for his memo book and reading from it.

[25] A satchel or satchels was an important factor in identifying which of the Asian males to be concerned about. PC Murphy’s evidence was inconsistent and hence I found it unreliable in this area.

[26] PC Murphy testified he decided to detain and search the suspects for officer safety.

[27] It was PC Murphy’s evidence at trial that he removed two satchels, one from each of two Asian males. He stated that he placed the satchels on a planter in sequential order so he could remember which was taken from whom during the searches. However, on this critical evidence, PC Murphy did not have any notes on either the presence of a second satchel or the fact that he placed them in a sequence on the planter. Further, he could not describe either satchel. And there were no identifying items in either satchel attributable to Mr. Van, such as a piece of identification.

[28] PC Murphy testified that he recovered a black Glock from the satchel which he claimed Mr. Van was carrying. During trial, PC Murphy stated he could not recall what Mr. Van was wearing or what his hair looked like.

PC Fenty’s Evidence

[29] PC Fenty had only been a police officer for about 3 years in September 2018. He was on a 6-month stint with the CRU under the tutelage of PC Murphy on September 5th. All instructions about the investigation went through PC Murphy. PC Fenty testified he received information about the investigation from PC Murphy. He testified he was told there might be some males at the barbershop and one male might have a firearm. He was told if they found a firearm to arrest the suspects. He was given a brief description of the males as follows:

• 3 - 4 males of Asian descent;

• wearing some article of their clothing that was black;

• one wearing shorts; and

• one maybe wearing shorts and possibly have a satchel.

[30] PC Fenty estimated there were more than 4 males standing outside the barbershop. He described the makeup of the males as being Asian, one being Black (he said, “African American”). They were all wearing some item of black clothing. He said 4 males were ordered against the wall. They were cuffed.

[31] PC Fenty dealt with the 2 males on the left. He searched them with officer safety on his mind. He told them they were detained for a firearm investigation and gave them their rights to counsel and caution from his memory. His intention was to read the rights to them verbatim later from his memo book once the situation was under control.

[32] He searched the 2 suspects he was investigating. He described three of the males:

• one wearing black jeans, black and white Jordan Jersey, black Blue Jays baseball cap with white, blue and red logo;

• another wearing a pink, blue and black and white-striped shirt, grey pants, green, pink and blue Nike running shoes; and

• another wearing a white t-shirt, black shorts, Jordan shoes.

[33] PC Fenty was not focussed on what PC Murphy was doing. He heard him yell, “Gun.” He released the persons he had investigated because he was satisfied that they did not need to be detained.

THE LAW

Investigative Detentions under Section 9 of the Charter and Safety Searches under Section 8

[34] Under s. 9, everyone has the right not to be arbitrarily detained or imprisoned. The onus is on the applicant to show in all the circumstances they were unlawfully detained in violation of their constitutional rights.

[35] Common law has evolved establishing limits on when state agents can detain a person. There must be a clear connection between the suspect being detained and the criminal activity under investigation. Police authority extends to the preservation of peace, the prevention of crime and the protection of life and property in the interest of ensuring officer safety and the safety of the public: R. v. Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2 (S.C.C.)].

[36] Important to this power is that a detention under s. 9 should be brief in duration. A police officer may briefly detain for investigative purposes where in the totality of the circumstances the officer has reasonable grounds to suspect a clear connection between the individual to be detained and a recently committed or unfolding criminal offence.

[37] In deciding whether to detain, officers are not to operate on a mere “hunch” or “suspicion” in detaining on an investigative detention: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 (S.C.C.)]. An investigation under this power should be limited to a protective pat-down or frisk of the outside of a person’s clothing. Officers are not authorized under this power to search a suspect’s pockets or person unless during the pat-down they engage an object that feels like a firearm.

[38] A detention must be reasonable. There must be a constellation of discernible facts that give the officer reasonable cause to suspect the detainee is criminally implicated in the activity under investigation: R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.)]. There are subjective and objective components to the assessment of reasonable suspicion. An officer’s subjective belief that a suspect might be involved in a criminal activity must be objectively substantiated. The analysis of objective reasonableness should be done from the perspective of a reasonable person standing in the shoes of the police officer: R. v. MacKenzie, 2013 SCC 50, at para. 63

[39] The reasonableness of the decision to detain under s. 9 must be examined in the context of all the circumstances: R. v. Mann, at paras. 24 and 34.

Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience. A police officer’s grounds for reasonable suspicion cannot be assessed in isolation.

R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 29, (S.C.C.)

[40] The Supreme Court of Canada in R. v. MacKenzie offered this observation:

[R]easonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.

R. v. MacKenzie, at paras. 33 and 35; italics added

[41] The common law distinguishes between an investigative detention under s. 9 and the incidental power to search on arrest under s. 8, in more recent cases called a “safety search”. The standard on an investigative detention is reasonable grounds to suspect and on a search incident to arrest, reasonable grounds to believe. The investigative detention standard is lower than the standard on the power to more invasively search incidental to an arrest.

[42] The police in the case before me conducted a more invasive search than the pat-down allowed on an investigative detention. PC Murphy searched a satchel he says he removed from Mr. Van, searched it and found a loaded firearm. The information he received was that Asian males in the target area were seen with (a) firearm(s) and he explained that he did the search in the interests of safety for the police and the public.

[43] We must look at the appropriateness of the decision to go beyond an investigative detention to the more invasive safety search. The power to search incident to an arrest is set down by statute and common law.

[44] Section 8 of the Charter provides everyone with protection against unreasonable search and protection of individual privacy rights against unreasonable intrusion by the state. The police searched Mr. Van without a warrant. The onus on warrantless searches shifts to the police to establish reasonable grounds to arrest. Section 495 of the Criminal Code provides:

A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or

(b) who, on reasonable grounds, he believes has committed or is about to commit an indictable offence.

[45] Warrantless searches are deemed reasonable if: (a) they are authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265., at p. 278, (S.C.C.)]. The test for a reasonable arrest also has both subjective and objective components. The Supreme Court of Canada in R. v. Storrey explains:

Reasonable grounds have both a subjective and an objective aspect. The arresting officers must subjectively have reasonable and probable grounds on which to base an arrest. Moreover, those grounds must be justifiable from an objective point of view such that a reasonable person placed in the position of the arresting officer can conclude that there were reasonable and probable grounds for the arrest.

R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250 - 51, (S.C.C.)].

[46] R. v. MacKenzie attempts to sort out the linguistic conundrum faced by courts in understanding and applying the different standards for police powers under s. 8 and s. 9. Recognition must be given to the fact that the different standards underly different police powers which require respect for different Charter rights:

Parenthetically, I note that the reference in Mann to “reasonable grounds to detain” has led to some confusion for the bench and bar alike. In the context of detention, “reasonable grounds” means reasonable grounds to suspect that an individual is involved in particular criminal activity, which is synonymous with reasonable suspicion. However, in other contexts, such as an arrest, “reasonable grounds” means reasonable grounds to believe that an individual is or has been involved in a particular offence, which is synonymous with reasonable and probable grounds. The former concept is a matter of possibilities, while the latter is one of probabilities.

R. v. MacKenzie, at paras. 34 and 38

[47] The MacKenzie court equates “reasonable grounds to believe” and “reasonable probable grounds”. As the court observed in R. v. Chehil, judges scrutinizing police action must take heed not to conflate the reasonable suspicion standard under s. 9 with the weightier reasonable and probable grounds standard under s.8 searches: R. v. Chehil, at para. 27.

[48] The relevant time to determine the necessity of a search is at the time of the actual search and seizure with the information an officer has at that time. At that point, it can be determined whether the officer had the requisite subjective and objective grounds. “Intention alone does not attract a finding of unconstitutionality. It is not until that subjective intent is accompanied by actual conduct that it becomes relevant.”: R. v. Clayton 2007 SCC 32, 220 C.C.C. (3d) 449, at paras. 48, (S.C.C.)].

[49] In R. v. MacDonald, the Supreme Court of Canada considered the scope of police search powers in the context of an interaction with an individual at the door of his home. The police received a noise complaint at a home and became involved in a dangerous situation that, in the officer’s view, put their safety and the safety of others at risk. The operation of s. 8 of the Charter was at issue.

[50] Affirming the principles laid down in earlier cases, the Supreme Court addressed the need to draw boundaries on the power of a state agent contemplating making the more invasive safety search:

But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view, the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on “reasonable and specific inferences drawn from the known facts of the situation” (Mann, at para. 41).

R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 41, (S.C.C.)

[51] The majority in MacDonald determined that the officer’s act in pushing the door open constituted a reasonable search in the circumstances as having been authorized by a reasonable law and conducted in a reasonable manner.

[52] The majority opinion however made clear that the power to do safety searches cannot be based on a nebulous concern about risk of danger. That type of search is permitted only in situations where there is objectively verifiable danger to the police or the public. This case departs from the earlier line of cases that held that R. v. Mann stands for the view that safety searches could be conducted on reasonable suspicion: R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52, at para. 40, (S.C.C.).

[53] The minority opinion in MacDonald raised practical questions faced by an officer in circumstances where the officer immediately forms reasonable grounds to believe the suspect has a firearm. Does the officer restrict themselves to the minimal safety pat-down search and go no further? Or does the officer arrest the suspect and, incident to the arrest, move to a more invasive search of the suspect and his belongings, perhaps, foregoing the safety pat-down? Those considerations were raised by the Crown in the case before me.

Indeed, it defies common sense to suggest that an officer confronted with an individual who is reasonably believed to be armed and dangerous would forgo the lawful option of arresting the individual in favour of a mere pat-down search. Notably, a search incident to arrest is far more intrusive than the minimally intrusive search recognized under Mann. A search incident to arrest would include a search of the person but could also include a search of his or her belongings or automobile (see Caslake, at para. 15).

R. v. MacDonald, at para. 80

[54] It is the majority opinion in MacDonald that must rule the day. Safety searches should not be conducted on less than reasonable grounds to believe.

[55] The difficulty in applying the standards in the case before me is that the basis for an investigative detention - that is, a reasonable suspicion of possession of a firearm, and the evidence of criminality expected to be uncovered by a safety search, that is, possession of a firearm - are effectively the same. So, for the officers to further their investigation with the information they had when they arrived on scene, they were on a mission to conduct a safety search for a firearm.

[56] The question for me to determine is whether PC Murphy had sufficient information at the time of the search to justify the lower standard for an investigative detention. And if so, did his information meet the loftier standard for conducting a more invasive search of the satchel and arresting Mr. Van?

ANALYSIS

Whose Reasonable Suspicion or Reasonable Belief is Operative?

[57] In this case, investigative information was passed from a confidential source to a police officer and then between various officers who assumed different roles in relation to the investigation.

[58] DC Kharbar received information from a PC Hildebrand who was stationed at police headquarters. PC Hildebrand was a confidential source handler who had received the information from a confidential source. DC Kharbar passed the information to PC Murphy, who led the investigation at the scene and who was tasked with his partner, PC Fenty, to investigate. PC Murphy passed information to PC Fenty.

[59] R. v. Debot held that even if an officer did not personally have any reasonable and probable grounds, they are entitled to rely on the orders of a superior officer to respond to a claim of arbitrariness. This is providing the superior officer had reasonable grounds to believe that the suspect was committing a crime. The court concluded:

It would be unrealistic and impractical, Martin J. A. stated, to require a police officer to obtain from his or her superior all the information supporting the order to search a person suspected of the commission of a crime especially where the suspect may be fleeing from the scene.

[R. v. Debot, [1989] 2 S.C.R., at p. 1157, (S.C.C.)]

[60] In terms of hierarchy, DC Kharbar testified that detective constables and police constables do not occupy different ranks in the police service. My understanding is that DC Kharbar was a plain clothes constable acting as lead in the investigation, not a superior to PC Murphy and PC Fenty, although PC Fenty had much less experience than DC Kharbar and PC Murphy. So, this is not a case of an order being received from a superior. Outside of rank considerations, the police must necessarily rely on information from other officers.

[61] Courts have addressed circumstances where the information that formed the basis of an arrest for drug possession was received from a confidential source:

Where the information upon which an arrest is based originates in a source outside the police, the totality of the circumstances encompasses factors relevant to either the accuracy of the specific information provided or the reliability of the informant as a 3rd source of information to the police; (R. v. Lewis (1998), 1998 7116 (ON CA), 122 C.C.C. 481 at para. 16). In this case, the allegation relates to possession of drugs. It follows that the totality of circumstances must raise a belief, on reasonable grounds, that the target had committed or was about to commit the offence of possession of drugs for the purpose of trafficking.

R. v. Sarchiz, 2015 ONSC 3544, at para.31, (Ont. S.C.J.)

[62] The totality of the circumstances embraces the evidence PC Murphy received from DC Kharbar and information from PC Murphy’s observations at the scene.

[63] PC Hildebrand, acting as source handler, received information from a confidential source. He passed the information to DC Khabar who passed some of the information to PC Murphy. PC Murphy made certain observations of his own at the scene that informed his decision to search. It was PC Murphy who made the decision that two of the Asian males fit the description. It was he who focussed his attention on Mr. Van and searched his satchel recovering the firearm. DC Kharbar operated undercover and left the scene and thus played little hands on role in the investigation at the scene.

[64] It makes sense that it is PC Murphy’s reasonable grounds to suspect or reasonable grounds to believe that should be operable in the analysis. But it is noted that PC Murphy received limited information from DC Kharbar.

The Debot Framework

[65] The Debot factors are well-known. The standard is reasonable and probable grounds to search: [R. v. Debot, p. 1166]. The three factors offer a tool to measure the credibility and reliability of the informant and their information, the compelling nature of the information and the corroboration of the information. In applying the factors, it is the “totality of the circumstances” that must meet the standard of reasonableness. In the analysis regard must be had to the notion that weaknesses in one factor may, to some extent, be compensated by strengths in the other two: [R. v. Debot, at p. 1168].

[66] It is acknowledged that the standard in assessing information from a confidential informant is higher than that for a s. 9 inquiry and the same or similar to the standard for s. 8 safety searches. However, I do not think the difference renders the three factors completely inapplicable as a framework for assessing the grounds under sections8 and 9 in the context of the facts in this case. It follows that if the reasonable grounds to believe standard is not satisfied then neither will the lower standard of reasonable suspicion be met.

[67] The confidential informant provided the information that launched the investigation which makes the credibility and the reliability of their information critical. In this assessment, the court must be mindful of the privilege that protects the identity of the informant which may affect the quantity of disclosable information: R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281 (S.C.C.)]. This may have been the case with the information available to PC Hildebrand and PC Murphy.

[68] DC Kharbar knew little about PC Hildebrand except that he worked at headquarters possibly in an intelligence or an analysis unit. More importantly, there was nothing known about the source. They were not known to be a tested source. There is nothing provided about the source’s track record as an informant; nothing about the currency of their observations, whether the information provided was fresh or stale. There is an absence of detail on the circumstances under which the source’s observations were made. In other words, for his part PC Murphy did not know the basis of DC Kharbar’s belief that there would be 4 Asian males dressed in black carrying firearms, etc.

[69] The information was at least third-hand by the time it reached PC Murphy. There is no indication whether the information from the informant was first-hand or provided to them by yet another party. I find this would tend to undermine the credibility and reliability of that aspect of the information PC Murphy possessed at the scene.

[70] On the totality of the evidence, I find the credibility and reliability of the information and the informant was such that it fell below reasonable grounds to believe, and by extension, the lesser standard of reasonable suspicion.

[71] Consideration of the compelling nature of the information requires examining the totality of the information supplied by DC Kharbar and the information garnered by PC Murphy at the scene. The grounds upon which the detention was based must be viewed from what PC Murphy knew at the time.

[72] PC Murphy did not have all of the information that DC Kharbar received from PC Hildebrand. PC Murphy was operating with little information about the suspects when he arrived at the scene: 3 Asian males, dressed all in black, possibly wearing shorts and possibly carrying small bags containing a firearm(s).

[73] What PC Murphy observed on scene was a group of about 10 - 11 people. PC Murphy concluded from the skeletal description received from DC Kharbar that Mr. Van fit the description, as did the other three males. He concluded that 2 males more matched the description DC Kharbar gave him, being Asian males, wearing an article of black clothing and carrying satchels. Four persons were detained up against the wall. Two of those males wore satchels. One of the males with a satchel it is alleged was Mr. Van. At trial, PC Murphy did not recall what the detained males, including Mr. Van, were wearing.

[74] PC Fenty’s observations were somewhat different, less precise on numbers: 3 Asian, one being Black (he said, “African American”). They were all wearing some item of black clothing. He took notes of the details of the clothing of 3 of the 4 males detained against the wall: one wearing black jeans, and a black and white Jordan Jersey; another wearing a black Blue Jays baseball cap with a white, blue and red logo; another wearing a pink, blue and black and white-striped shirt, grey pants, green, pink and blue Nike running shoes; and the another wearing a white t-shirt, black shorts and Jordan shoes.

[75] Regarding PC Murphy’s evidence that all 4 detained males fit the description, it actually appears to be that none of the males were dressed in all black clothing. Only 2 had satchels. They were all dressed in a variety of colours of clothing. What the 4 had in common then was that they were young Asian males.

[76] When looking at whether the information was compelling or not, I considered that there was a fair amount of detail provided particularly on the race, range of ages and clothing. This information is only as valuable as the extent to which it is information within the special knowledge of the source, from an insider. The males were congregated in public on the corner of a busy street. The clothing and appearance of the males were therefore open to the broader public.

[77] Regarding the firearm, the source said he saw guns described as black baby Glocks. There is no description of the circumstances surrounding the firearms. The description of the guns amounts to no more than a bald statement, bearing little specificity: [R. v. Debot, at pp. 1168-1169]. There is also the fact that DC Kharbar was not clear in his notes as to whether there was a singular gun or more guns to be investigated. His notes said “gun(s)” and he was not able to explain why he wrote his note that way.

[78] There is also the question of temporality of the information from the source. The closer in time to the arrest that information is provided by the source, the more compelling the information is thought to be. The evidence is not clear. There appeared to be understandable reluctance on DC Kharbar’s part to give the timing of the information from the source, perhaps, given privilege concerns. However, when answering the question on cross-examination as to why the police attended a scene with so few officers to deal with so many potential suspects, DC Kharbar said that things were moving fast, and police acted quickly.

[79] In any case, I do not find the fact of the police acting quickly after they received the information is critical here. What is important is evidence of how short the time was between the source acquiring the information and the detention and search of Mr. Van and when it was that PC Hildebrand gave the information to DC Kharbar. DC Kharbar indicated PC Hildebrand gave him the impression of immediacy of the information, but DC Kharbar was not sure if the source told that to PC Hildebrand.

[80] Greater weight on the compelling nature of the information is required when the credibility and reliability factors are weak. Looking at the information as a whole, I do not find the information PC Murphy had was of a sufficiently compelling nature to meet the standard of reasonable grounds to suspect or reasonable grounds to believe that a crime was being committed, that he would find someone in possession of a firearm.

[81] Given my findings that the information on the credibility and compelling nature factors are not strong, more weight rests on the corroboration factor to reach a standard of reasonableness for the purpose of both the s. 8 and s. 9 inquiries.

[82] The police believed the 10 males on the street somehow fit the description DC Kharbar provided PC Murphy. DC Kharbar directed PC Murphy to detain them and search them “thoroughly”. PC Murphy detained two individuals, one of whom he thought met the description and that was Mr. Van. PC Murphy did not recall what he was wearing. It is not clear that Mr. Van was wearing all black according to PC Fenty’s description of three of the men that were detained.

[83] As well, the source indicated that one of the men would be wearing a Gucci belt. DC Kharbar said one of the men was wearing some type of designer belt, but he was not certain whether it was a Gucci or a Louis Vuitton. In a case that depends on strong corroboration to establish reasonable grounds to believe, the officer only being able to say the belt might be as described by the source is weak corroboration. Be that as it may, what is critical in the analysis is not DC Kharbar’s observations, but what PC Murphy the arresting officer, who formed the grounds, observed.

[84] I find the information garnered by PC Murphy did not sufficiently satisfy the weightier corroboration requirement. The information met neither the reasonable suspicion nor reasonable and probable grounds to believe that a crime was being committed, that Mr. Van would be in possession of firearm.

Comment on Credibility of the Officers

[85] PC Murphy’s evidence evolved at trial.

[86] PC Murphy’s evidence at trial was that he removed a satchel from each of two males who were detained. He said he put the satchels on a planter in sequential order. This was so he could keep track of whom he took the satchels from when he searched. This is critical information. But PC Murphy took no notes about the existence of a second satchel or of putting them in sequence on the planter. He could not describe either satchel. Importantly, there was nothing in the satchel that he alleges he seized from Mr. Van like a driver’s licence that linked the satchel to Mr. Van.

[87] DC Kharbar’s evidence also evolved at trial.

[88] Not until trial did DC Kharbar indicate that he recognized two of the males at the scene. This is important information. It is expected that he would have noted and spoken of this earlier if he did recognize them. He said he recognized a male sitting on the concrete planter whom he claimed he recognized when driving by the scene. Also, for the first time, he said he recognized that male as being in a street gang.

[89] DC Kharbar first said he did not remember pointing out any particular male to the CRU officers. Then at trial his evidence evolved to be that he might have pointed to Mr. Van when he exited the variety store. While evidence of what he might have done bears little weight, the fact that DC Kharbar added that information at trial raises credibility concerns.

[90] I find the credibility issues adversely colour the reliability of the investigation given the critical areas of the evidence in which they emerged.

RIGHT TO COUNSEL, SECTION 10 OF THE CHARTER

[91] Section 10(a) of the Charter provides people with the right on arrest or detention to be informed promptly of the reasons for their detention. Section 10(b) provides for the right to retain and instruct counsel without delay.

[92] The Supreme Court of Canada clarified the immediacy requirement under s. 10(b) holding that it is only subject to concerns for officer or public safety until circumstances are brought under control: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 42, (S.C.C.).

[93] There is no issue in this case as to precisely when the males were detained. The officers arrived on bikes and immediately took physical charge ordering 4 males to face the wall and detaining the others. PC Murphy was in charge of 2 of them, including Mr. Van, and PC Fenty was in charge of the other 2.

[94] The evidence is that PC Murphy did not inform Mr. Van and the other male of the reason for their detention until they asked why they were being detained. It was then that he told them they were detained because of a firearm. Further, he did not give the males their rights to counsel and caution. His reason - he did not want to interrupt detentions in a firearm investigation by using his hand to reach for his memo book to read from it.

[95] PC Fenty approached that matter differently. He promptly informed the two males he had custody of that they were being detained for a firearm investigation. He gave them their rights to counsel and caution from memory. His intention was to read the rights verbatim from his notebook once the situation was under control.

[96] PC Fenty was a relative novice officer compared to his partner who had five years’ experience with the police service. I find PC Fenty operated within the law. PC Murphy on the other hand violated the law when he failed to both inform Mr. Van immediately upon his detention of the reason for his detention and neglected to give his right to counsel and caution.

DISPOSITION ON THE CHARTER APPLICATIONS

[97] I find the evidence does not satisfy the lesser standard of reasonable grounds to suspect required to be met to render an investigative search lawful under s. 9. This of course means that the higher standard of reasonable grounds to believe a crime was being committed has not been satisfied. I find that PC Murphy might well have held an honest belief that he had reasonable and probable grounds to arrest and search Mr. Van. However, on the totality of the evidence, I conclude the objective factors do not support that subjective belief.

[98] In the result, the police violated Mr. Van’s rights under sections 8, 9, 10(a) and 10(b) of the Charter. I therefore exclude the firearm and ammunition as evidence for trial.

ADMISSIBILITY OF EVIDENCE UNDER SECTION 24(2) OF THE CHARTER

[99] The Supreme Court of Canada in R. v. Grant set down inquiries for consideration in determining the effect of exclusion of evidence on the administration of justice: (a) the seriousness of the Charter-infringing state conduct; (b) the impact on the Charter-protected interests of the accused; and (c) society’s interest in an adjudication on the merits: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C).

The First Inquiry

[100] Under consideration are violations of Mr. Van’s rights under sections 8, 9, 10(a) and 10(b) of the Charter.

[101] The seriousness of the breach falls along a spectrum where at on one end are violations that are inadvertent or minor in nature and on the other end, violations that demonstrate a reckless and deliberate disregard of Charter rights: R. v. Grant, at paras. 72 and 74.

[102] I find the cumulative effect of all of the breaches falls on the more serious end of the spectrum. I would not have found this to be the case were I to be dealing solely with the violations under s. 10(a) and 10(b). This is of course not to suggest that breaches of rights to counsel are not to be taken seriously. What I am saying is that the nature of the s.10 violations in this case are not the worst of that class of violations. There is no evidence of any extraordinary delays in providing rights to counsel and access to a lawyer as is the situation too often. I find the s. 10 breaches to be of moderate seriousness occurring as they did in the context of a detention and search conducted without reasonable grounds.

[103] I find the violations under sections 8 and 9, even on their own, to be on the more serious end of the spectrum . . The police saw a large group of young Asian males on a corner of a busy street in Toronto. The CRU officers, acting under the direction of a lead investigator to detain and thoroughly search the males, with scant descriptive details, moved in swiftly on their bikes and detained the group, ordering 4 of them up against the wall with their hands up and detaining the others. This was under circumstances where it seems that all the persons had in common was that they were young Asian males. All were readily detained and searched with no pause to assess their criminality.

[104] Mr. Van was one of two males whom PC Murphy thought fit the rather skeletal description he received from DC Kharbar. What the officers found was not Asian males dressed “in all black” but rather males with an eclectic assortment of clothing colours and styles. Besides being provided the race of the males, an approximate age range, and the description of one male being chubby, no distinguishing physical descriptors were provided. This led me to the conclusion that on the totality of the circumstances the information available to the officers fell short of supporting both reasonable grounds to suspect criminality and by extension the stricter standard of reasonable grounds to believe a crime was being committed.

[105] My conclusions are not based on any belief that the officers were acting in bad faith or with malicious intent in regard to any of the Charter violations. I believe the officers were acting quickly and this resulted in PC Murphy being careless about observing Mr. Van’s rights under circumstances where there was no exigency. I am not oblivious to the fact that firearm investigations can present with serious risks of danger to the police and public. However, in this case the police moved rapidly and took control of a large group of males, detained and invasively searched them, in a situation where all of the detainees were immediately compliant.

[106] Regarding rights to counsel, PC Fenty was able to verbally honour this right from memory. Surely, PC Murphy with his lengthier service could have recited the rights to counsel and caution from his memory and formally perform this duty at a later time.

[107] I find the cumulative effect of the sections 8, 9, 10(a) and 10(b) Charter violations to be serious such that the court should not condone this conduct. The court should dissociate itself from this conduct.

The Second Inquiry

[108] The second inquiry assesses the impact of breaches on the Charter-protected interests of the accused.

[109] Mr. Van was among a group of young Asian males standing on the corner of a busy street in downtown Toronto. He was detained up against a wall and not told why he was detained until an inquiry was made. Mr Van quickly had his satchel taken from him and searched. People, not just women, frequently keep private, personal items in bags and satchels. Such a search is very invasive, more of a violation when done without a proper prior investigation.

[110] In this case, there is a rather troublesome quality to the police attributing the firearm found in one of the satchels to Mr. Van. This is so given the evolution in PC Murphy’s evidence to, for the first time at trial, speaking of two satchels – two satchels, one he said was from Mr. Van which he also said, for the first time, he took care to keep separate from the other. Further, there was no forensic evidence or identification documentation that connected Mr. Van to the satchel which contained the firearm.

[111] The court must dissociate from the intrusion into the private realm Mr. Van’s satchel in the context of rapidly detaining him in public among almost a dozen Asian males with faint grounds to believe a crime was being committed, that Mr. Van had a firearm.

The Third Inquiry

[112] The third inquiry requires the court to look at the seriousness of the offence.

[113] The Supreme Court of Canada in R. v. Harrison asks the application court to balance the implications of excluding evidence of an offence against the effect on the administration of justice if the prosecution of a serious crime is not pursued because evidence that could provide conclusive proof is not admitted.

[114] The weighing in this case requires balancing against the seriousness of the alleged offence, the police violations under sections 8, 9 and 10(a) and (b) of the Charter: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.).

[115] The court is required to perform a fact-based balancing of the three lines of inquiry. The exercise is not simply a quantitative calculus of whether the majority of the factors favour exclusion. The inquiry is as to what effect there will be on the long-term repute of the administration of justice if the evidence is admitted: R. v. Harrison, at para. 36. The admission of the firearm in this case could not be conceived of as operating unfairly in the court’s search for the truth at trial: R. v. Harrison, at paras. 81 and 82. The firearm is clearly critical to the Crown’s case.

[116] The seriousness of the crime is not in doubt. There was a loaded prohibited firearm found in a satchel carried by a person in a busy area of downtown Toronto where adults and children would be present. Pedestrian and vehicular traffic abounds at rush hour on the busy Queen St. W. intersection. And it cannot be ignored that the recovery of the firearm occurred in the context of serious gun violence in Toronto. Somewhat minimizing the seriousness, I considered that the firearm was not in sight or in use and that the connection of the firearm to Mr. Van was not the most compelling.

[117] I must balance the seriousness of the offence against the Charter violations.

[118] Overall, I find the combined effect of the Charter violations to be serious and the impact on Mr. Van to not be insubstantial. When I weigh my findings on the nature of the violations against the serious nature of the crime Mr. Van is accused of, I find in the circumstances admitting the firearm would risk bringing the administration of justice into disrepute.

[119] In the result, I find the balance weighs in favour of excluding the firearm and ammunition.

VERDICT

[120] The firearm and ammunition are excluded as evidence for trial. I find Tommy Van not guilty on counts 1, 2, 3, 4, 5, 6, 7, 8 and 9 on the indictment and acquittals will be registered accordingly.

B.A. Allen J.

Released: June 23, 2021

COURT FILE NO.: CR-10000289-0000

DATE: 20210623

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

TOMMY VAN

Accused

REASONS FOR JUDGMENT

Allen J.

Released: June 23, 2021