FACTUAL BACKGROUND AND OVERVIEW

The Crown’s Allegations

[1] The accused, Ian Reid stands charged with possession of a loaded restricted firearm and related offences, which arise out of his arrest by the police on 21 July 2018.

[2] Sometime in July 2018, police received information from two confidential informants that the accused was in possession of a firearm. An investigation led to the issuance of warrants on 20 July 2018 to search the accused’s residence at Unit 310, 3266 Weston Road in the City of Toronto, and a car, a black Ford F-150, that the accused was known to drive.

[3] On 21 July 2018, a team from the Guns and Gangs Task Force were briefed on plans to locate and arrest the accused and execute the search warrants.

[4] Later that day, the accused was observed leaving 3266 Weston Road to enter his car which was situated in the building’s parking lot. The lead officer, Sergeant Liam Wauchope, joined another officer, Detective Constable Fazal Haffejee in approaching the accused who had, by this time, entered his car on the driver’s side. Both officers issued commands telling the accused to exit the vehicle and get on the ground.

[5] A struggle ensued and as the officers took the accused to the ground, one of them discovered a sock containing an object in the accused’s waistband. The sock was removed and was found to contain a Glock handgun and ammunition. The accused was arrested and charged.

The Defence Position

[6] Mr. Reid denies being in possession of the gun and claims that the police showed him the gun when he was arrested but he had no knowledge of it beforehand.

[7] He also argues that his rights under s. 9 of the Charter of Rights and Freedoms were violated as the police had no grounds to arrest him. Moreover, he submits that when arrested, he was assaulted by the police as he lay on the ground. As a result, he asks this court to find a further violation of his s. 7 Charter rights and asks that if convicted his sentenced be reduced pursuant to a remedy under s. 24(1) of the Charter.

[8] Both parties agreed that the Charter applications and trial be heard in a blended fashion with the evidence called on the Charter issues to apply at trial. I will consider, first, whether there was any s. 9 violation, and second, the circumstances surrounding the arrest, including whether the accused was in possession of the firearm at the time of arrest and whether the police used excessive force in performing the arrest.

[9] As will be made clear, I find there was no ss. 7 or 9 violation. I also find that the Crown has proven beyond a reasonable doubt that Mr. Reid had possession of the gun having placed it in his waistband in a sock.

WAS THERE A SECTION 9 VIOLATION?

Legal Principles

[10] Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. The provision serves to protect individual liberty against unlawful state interference: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54.

[11] The accused’s application is based on an assertion the police lacked the grounds required for arrest. Consequently, any search conducted incident to arrest was unlawful and the seized the firearm must be excluded pursuant to s. 24(2) of the Charter.

[12] Section 495(1)(a) of the Criminal Code provides that a peace officer may arrest without warrant “a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence”.

[13] The requirement of reasonable grounds imports two requirements: subjective and objective. In other words, (1) the police must subjectively believe they have reasonable and probable grounds to arrest an accused; and (2) a reasonable person placed in the position of the officer must be able to conclude there were reasonable and probable grounds for the arrest: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 249-251; R. v. Hall (1995), 1995 CanLII 647 (ON CA), 22 O.R. (3d) 289 (C.A.), at pp. 298-299; R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at para. 20, leave to appeal refused, [1997] S.C.C.A. No. 571; R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 36; R. v. Amare, 2014 ONSC 4119, at para. 83; R. v. Saciragic, 2017 ONCA 91, at para. 16.

[14] Proof of reasonable and probable grounds requires more than reasonable suspicion: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 85. However, it does not require proof of the commission of the offence beyond a reasonable doubt or even on a standard of balance of probabilities. It is sufficient that an inference of specific criminal activity is a reasonable inference from the facts known to the police: R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22.

[15] In considering whether the arresting officer objectively possessed reasonable and probable grounds, all the circumstances known by the arresting officer must be considered: Storrey, at pp. 250-251; Golub, at para. 18; Amare, at para. 83. A reviewing court should also appreciate that a trained police officer is entitled to draw inferences and reach conclusions drawing on their years of experience. See R. v. Rajaratnam, 2006 ABCA 333, 214 C.C.C. (3d) 547, at para. 25; R. v. Juan, 2007 BCCA 351, 222 C.C.C. (3d) 289, at paras. 17-20, 27-28; R. v. Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127, at para. 61; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 48; R. v. Biccum, 2012 ABCA 80, 286 C.C.C. (3d) 536, at para. 21.

[16] There is a difference between the standard of reasonable and probable grounds required to obtain a search warrant and that founding an arrest. In Golub, at para. 18, Doherty J.A. wrote:

Both a justice and a 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.

Did the Police Have Reasonable Grounds to Arrest?

[17] As part of the combined Charter/trial evidence, the Crown called the officers involved in the accused’s arrest as well as a transporting officer present for the booking in process at the station.

[18] Wauchope was the lead officer in the operation. He testified that he spoke to the building manager at 3266 Weston Road who provided information regarding the accused and his unit number in the building.

[19] Wauchope also located the parking spot in which the accused parked the car that he was driving - a Ford F150 with the number plate AJ83401.

[20] On 21 July 2018, Wauchope was advised that warrants had been issued permitting the search of Unit 310, 3266 Weston Road and the Ford F-150. At 5:00 p.m. his team began surveillance of the 3266 Weston Road in the parking lot at the rear of the building.

[21] At 6:51 p.m., the accused exited the building going to his car. Although Wauchope was the senior ranking officer, Haffejee was the “road boss” or officer who would initiate the steps to arrest the suspect. He called the takedown as the accused entered his car.

[22] As Haffejee approached the accused, he was wearing a police vest and shouted to the accused that he was a police officer and commanded him to get down on the ground. Haffejee testified that the accused did not respond so he grabbed his jacket and pulled him down as other officers arrived.

[23] Wauchope confirmed the use of police vests and said that when he arrived Haffejee was at the driver’s door. The accused was seated with one leg out of the car. Wauchope advised the accused to get out but he refused to comply so Wauchope kneed him once to the side of the body. The accused fell to the ground and was handcuffed. It was then that another officer, Detective Constable Shaun McKenzie, observed a sock in the accused’s waistband. Upon seizing and searching this item, police found the Glock handgun.

[24] During the course of submissions, the Crown sought to rely on cases such as R. v. Gobire, 2013 ONSC 2921, and instances where police used their investigative detention powers to hold an accused prior to executing a search warrant.

[25] These cases, however, do not assist the Crown: the lead officer Wauchope was clear in his testimony that police were going to 3266 Weston Road not only to search the residence and car but also to arrest the accused.

[26] Counsel for the accused cross-examined officers who had surveilled the accused to confirm they had not seen him commit any criminal activity. However, as Wauchope made clear, his grounds for arrest emanated from the information, provided to the police by confidential informants, that the accused had a firearm.

[27] In submissions, counsel for the accused place emphasis on the fact that many of the arresting officers did not know the contents of the warrant and so could not have formed the necessary reasonable and probable grounds for arrest. I find this argument to be misconceived: Wauchope clearly knew of the information in the Information to Obtain the search warrant (ITO) and he was the senior officer directing the arrest. As explained in R. v. Richards, 2015 ONCA 348, 323 C.C.C. (3d) 490, at para. 33, the officers under his command were entitled to rely on his grounds and direction in effecting the arrest.

[28] As is apparent, the resolution of this issue turns on the information contained in the ITO used to obtain the search warrants, and whether it provided the police with reasonable and probably grounds to arrest the accused.

[29] The Crown provided a redacted version of the ITO to the defence with overlaid summaries of the concealed portions. However, it asked the court to conduct a so-called “Step Six” inquiry to provide the defence with a more detailed summary of the redactions in accordance with the procedure set out in R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305. This procedure would permit this court to rely on the withheld passages in the ITO so long as the accused had an adequate judicial summary describing the paragraphs hidden from view. With the accused’s consent, I conducted an ex parte hearing in camera to determine if any of the redacted portions could be revealed as well as ensuring the defence received as much detail as possible regarding those parts that had to remain protected.

[30] The information in the ITO that provided reasonable and probable grounds emanated from two confidential informants (“CIs”).

[31] The first, CI #1, is a registered informant who had been used on prior occasions and provided accurate information which resulted in a number of charges and convictions being laid. CI #1 told police that a male by the name of “Ratty” was in possession of a handgun. They described Ratty by height, build and age. CI #1 provided police with details of how they knew “Ratty” and when shown a photograph, identified him as the accused.

[32] CI #1 told the police that they had seen the accused at the rear of 81 Clearview Heights in Toronto and that they had first-hand knowledge that the accused was in possession of a black firearm. CI #1 was part of the same community as the accused.

[33] The second confidential source, CI #2, is also a registered informant with a history of providing accurate information. They told police that there had been a barbecue at Clairview Heights with approximately 50 people in attendance. There they saw the accused carrying a black handgun. CI #2 also identified the accused from a photograph and also knew him to go by the name of “Ratty”.

[34] Both confidential informants were part of the same community as the accused and had been remunerated in the past for their information.

[35] The ITO records that the information was provided by the confidential informants within 30 days of the issuance of the warrant. Having seen the exact date, I am satisfied it is of sufficient recency to have been relied upon by the police when forming their grounds for arrest.

[36] Having reviewed the information contained in the warrant, the bulk of which was contained in the unredacted ITO, I am of the view that the police had more than reasonable and probable grounds to arrest the accused. The information placed a gun in the accused’s possession. The police had surveilled the accused and knew him to live at 3266 Weston Road and were also aware of the vehicle that he was driving. The information in the warrant provided a basis, both subjective and objective, that the accused was in possession of a firearm. In the ITO, CI #1 provided information that could lead the police to reasonably believe that the accused had a motive to carry the gun and would be in possession of it when arrested.

[37] As I have already noted, the court in Golub indicated that the test for determining reasonable and probable grounds for arrest was lower than that of obtaining a search warrant.

[38] Here, the police, as part of their duties in seeking the search warrant, ensured the information provided by the CIs satisfied the “3 Cs” test set out in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168. The CI information was detailed and compelling. As sources, both CIs had proven their reliability with a track record for accurate reporting and were therefore credible. Finally, the police corroborated much of the information regarding the accused’s residence and attendance at Clairview Heights through surveillance.

[39] In my view, the police had more than sufficient reasonable and probable grounds to arrest the accused.

[40] Accordingly, the s. 9 application is dismissed.

WAS THE ACCUSED IN POSSESSION OF THE FIREARM?

Police Evidence

[41] Having found no s. 9 Charter breach, I now turn to the allegations themselves and whether the Crown has satisfied beyond a reasonable doubt that Mr. Reid was in possession of the firearm.

[42] Four officers testified to the arrest of the accused: Wauchope, Haffejee, McKenzie, and Detective Constable Scott Taylor. All officers testified to McKenzie finding the firearm on the accused’s person.

[43] McKenzie indicated that when he approached the car, the other three officers were issuing commands for the accused to get on the ground. He saw the accused reach into the truck with his left arm which resulted in force being used to take him to ground. McKenzie assisted in cuffing the accused who sought to keep his hands beneath his body. It was then that he noticed a grey sock in the waistband of the accused’s jeans.

[44] Retrieving the sock, he felt it contained something metallic and believed it to be a gun. Looking inside he found a loaded Glock handgun.

[45] Haffejee testified that when he approached the car, the accused had the door open and was placing a satchel into the vehicle. When he approached the accused and placed him on the ground other officers arrived. Haffejee confirmed that the sock could be seen in the accused’s waistband and that McKenzie retrieved it to discover that it was a gun.

[46] As described, Wauchope approached the car after Haffejee and used force on the accused when he refused to comply with the police demands to get out of the car and onto the ground. Wauchope testified that the accused only began to comply with the police after he had been taken to the ground. Wauchope did not see the firearm on the accused but was told of its discovery after the accused had been arrested.

[47] Detective Constable Taylor was the last of the officers to arrive and saw the accused face down on the ground by the driver’s side door. He assisted handcuffing the accused and was told by McKenzie that he had found a firearm on the accused. He took photos of the gun and ammunition.

The Accused’s Account of the Events

[48] The accused testified that on 21 July 2018 he left his parents’ apartment at 3266 Weston Road to go to his pick-up truck. He had been visiting his parents because his father was seriously ill. He heard footsteps running towards him and turned to see three men without any identifying clothing pointing guns at him. He said that he froze and could not move.

[49] One of the men grabbed him even though he was not resisting. The accused agreed that he was ordered to the ground but told the court that he asked who the men were but received no response. The accused said he was hit in the rib cage more than once. He tried to comply with their demands but continued to be kicked in the rib cage as he was on the ground.

[50] Eventually he was handcuffed and the police began to search his car. It was only then that he saw one of the officers go over to his car and put on a police vest. One of the officers showed him a gun and asked if it belonged to him. He said “No”.

[51] The accused denied ever possessing any firearm or seeing it before it was shown to him by police.

[52] After being transported to the station, Mr. Reid complained of severe pain to his rib cage. He indicated that he wanted to go to hospital and the police called for an ambulance. After being taken to hospital, he was x-rayed and found not to have suffered any broken ribs. He was taken back to the station with a recommendation that he take Advil to treat the pain.

[53] I reject Mr. Reid’s evidence and find that it fails to raise a reasonable doubt.

[54] Mr. Reid insisted that he did not know who the officers were when they ordered him to the ground. However, Wauchope, Haffejee and Taylor all testified that they were wearing police vests. Only McKenzie agreed with the suggestion that he was not wearing a vest because he was conducting surveillance and it would have broken his cover.

[55] It makes little sense for the police, in a situation where they were seeking to arrest an individual suspected of carrying a firearm, not to wear vests to identify themselves when they approached the accused. In this regard, I accept the police evidence that they were suitably identified and the accused had every opportunity to understand that he was being arrested.

[56] I also reject Mr. Reid’s evidence that he was being continuously kicked when on the ground. It is telling that when he arrived at the station, the booking video recorded the accused’s reply to a query from the booking sergeant in relation to any injuries or ailments. The accused replied that his only ailment came being kneed to the side of his body. When cross-examined on this exchange, and the lack of any complaint that he had been continuously kicked by the officers, the accused explained that “kneed” meant the officers had used their legs. I find this answer to be lacking in any credibility. If the accused had actually been kicked in the manner he described, he would have complained to that effect when asked.

[57] Moreover, the alleged assault described by Mr. Reid does not sit well with the other evidence in this case. The booking video shows no sign of him being in significant pain or discomfort. Detective Constable Stafford Simpson, the officer who transported Mr. Reid to the station testified that he did not notice Mr. Reid displaying any difficulties in movement or make any complaints about specific injuries other than Mr. Reid saying that he was having difficulty in breathing.

[58] Finally, when taken to the hospital, the doctors found no evidence of any injuries and simply told Mr. Reid to take some Advil. I find that Mr. Reid was exaggerating any pain that he suffered at the station and that he continues to do so at this trial.

[59] Mr. Reid’s assertion on the booking video that he was “kneed” accords with Wauchope’s account of the arrest and his candid admission of the force he used when trying to force Mr. Reid from the car. That force was understandable in light of Mr. Reid’s failure to comply with police demands and the officer’s reasonable belief that he might be carrying a firearm.

[60] Finally, I accept McKenzie’s account, witnessed by Haffejee, that he found the gun in Mr. Reid’s waistband. Again, I reject Mr. Reid’s assertion that it was somehow planted on him by the officers. Haffejee saw the gun and confirmed McKenzie’s testimony on this point. Neither Wauchope nor Taylor saw McKenzie seize the gun but that does not detract from this version of events. Indeed, if there had been a planned planting of the gun, it is noteworthy that two officers conceded that they were told of the discovery of the firearm after the event - something that weighs against police concoction.

[61] These findings particularly in relation to the allegations of excessive force used by the police explain why I dismiss Mr. Reid’s s. 7 Charter application and why I find him guilty of all charges beyond a reasonable doubt.

S.A.Q. Akhtar J.

Released: 25 June 2021

COURT FILE NO.: CR-19-10000390-0000

DATE: 20210625

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

IAN REID

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

R. v. Reid, 2021 ONSC 4564

Case Summary

FACTUAL BACKGROUND AND OVERVIEW

The Crown’s Allegations

The Defence Position

WAS THERE A SECTION 9 VIOLATION?

Legal Principles

Did the Police Have Reasonable Grounds to Arrest?

WAS THE ACCUSED IN POSSESSION OF THE FIREARM?

Police Evidence

The Accused’s Account of the Events

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 2

Legislation 5