Background

[1] On October 26, 2019, the Toronto Police Service received a 911 call (the “911 Call”) that an individual had been seen brandishing a firearm in a retail plaza at 3234 Weston Road in the northwest part of the city. Several officers who were conducting another investigation nearby immediately responded to the 911 Call. These officers were led by Det. Jeffery Correia and included Det. Juan Carlos Valencia. They testified that gun violence and possession of unlawful firearms was a major problem in that area of the city, and that such reports were given very high priority.

[2] The officers were provided with details of the man with the gun, including that he was described as having a dark complexion, medium build, 5’6”, in his 30s, had dreadlocks and was wearing a blue jacket. It was reported that he had entered the “Island Variety” store and had an argument with the proprietor before lifting up his jacket to show his gun tucked into his waistband, stating “you are lucky you didn’t get robbed.” The suspect was reported to have then left the variety store and was seen near a barber shop in the same plaza.

[3] Officers Correia, Valencia and others were there within minutes. Both Det. Correia and Det. Valencia were in plainclothes and drove unmarked cars. As Det. Correia testified, this gave the police the advantage of being able to review the scene without the suspect being aware of a police presence. There is video surveillance of their arrival on the scene and the events that followed.

[4] Upon arriving at the plaza, Det Correia parked in front of the Caribbean Island Food Market, which he took to be the store referred to in the 911 Call. He observed a man with dreadlocks matching, somewhat, the description of the suspect nearby, standing next to a car in front of a barber shop to the left of the Caribbean Island Food Market. Det. Correia did not see anyone else with dreadlocks or otherwise matching the description provided in the 911 Call, and formed the view that the man he saw was the suspect with a gun.

[5] As he arrived at the plaza, Det. Correia observed the suspect standing at the rear driver-side door of a white Mercedes sedan speaking to another man who was wearing a satchel, but who did not match the description provided in the 911 Call.

[6] As the video showed, the two men stood close together, shoulder to shoulder and spoke for about seven seconds. It is unclear what, if anything, they were doing, and Det. Correia’s view was obstructed such that he could not see what was going on. The other man briefly walked away from the car for a few seconds and then turned around and returned to the car. The two men spoke again for about five seconds, following which the suspect got into the rear seat of the car with the door open, and the other man walked away and stood in front of the barber shop close to the rear end of the white Mercedes. He was with a young boy and other people were on the sidewalk close by.

[7] During this brief time Det. Valencia also arrived and parked on the other side of the barber shop, close to the white Mercedes. He also observed the suspect and the other man interacting. Other officers in marked and unmarked cars can be seen arriving in the parking lot on the video. Det. Correia then left his car and approached the open rear door of the white Mercedes with his gun drawn, shouting “police” and “don’t move.” He pulled the suspect out of the back seat of the car and placed him under arrest on the ground of the parking lot, handcuffing him with assistance from another officer, Steven McNeill. During the arrest of the suspect, Det. Correia advised him of the reason for his arrest – possession of a firearm – and informed him of his right to counsel.

[8] Det. Valencia approached the Mercedes from the other side with his gun drawn, and once he saw that the suspect, who was shocked but did not resist, had been restrained by Det. Correia and Officer McNeill, Det. Valencia turned his attention to the other man standing in front of the barber shop who was watching the events unfolding with the young boy, who it was learned was his son, clinging to his leg.

[9] Det. Valencia told the other man he was being placed under investigative detention for possession of a firearm. Det. Valencia was also immediately supported by another officer, Sgt. Reid, and the other man did not resist. Det. Valencia said he also appeared to be shocked by the events. Almost immediately after that, however, Det. Correia looked up from where he had handcuffed the suspect and ordered Det. Valencia to place the other man under arrest, which was immediately done by Det. Valencia who placed him under arrest and he was handcuffed by Sgt. Reid.

[10] Following the arrests, the suspect, who was identified as Philip Edwards, was subjected to a pat-down search and no firearm was found. The other man, who was identified as David Griffith, the applicant in this case, was also given a pat-down search and no firearm was found. However, Det. Valencia also patted the satchel carried by Griffith and said he felt something “hard” in it which was “pretty alarming.” He then unzipped the satchel and immediately saw a plastic bag with what he suspected was cocaine. He also found a jar containing what looked like marijuana which was the hard object he said he thought might have been a gun. He also found a cellphone, grinder, approximately $3,000 in cash, and what he believed to be more cocaine. Det. Valencia then informed Griffith that he was under arrest for possession of a controlled substance. At that time he was also informed of his right to counsel. Det. Valencia testified that the entire interaction with Griffith, from initial detention at gunpoint to being placed under arrest and informed of his right to counsel took about a minute.

[11] Despite deploying police around the plaza, no firearm was found. The white Mercedes, which was owned by Griffith, was seized and, after a warrant was obtained, was searched later that day. A digital scale and baggies containing cocaine and fentanyl were found in the car, among other things.

[12] Griffith was then charged with two counts of possession of controlled substances for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, and one count of possessing the proceeds of crime, not exceeding $5,000, contrary to s. 355(b) of the Criminal Code. Edwards was released without any charges laid against him.

[13] At his trial before me sitting as a judge alone, Griffith pleaded not guilty. A number of admissions were made by the accused such that the sole issue on the trial was whether the arrest and search of the accused and his car were lawful. Griffith submits that a number of his rights under the Canadian Charter of Rights and Freedoms were infringed. Specifically, he argues that his rights under sections 8, 9, and 10(b) of the Charter were violated, and that the evidence obtained should be excluded pursuant to s. 24(2) of the Charter.

Analysis

Detention and arrest

[14] It is not disputed that the police had grounds to arrest Edwards, and to search him following his arrest. It is well-established that police can rely on information provided in 911 Calls and act on that information without further independent investigation when there are public safety concerns. As Doherty J.A. stated in R. v. Clayton, 2005 CanLII 16569 (ON CA) at paras. 58-59:

In considering whether the police were entitled to rely on the information provided to them, it is significant that this information came by way of a 911 call. The 911 emergency system exists so that individuals can bring emergency situations to the attention of the police. The system assumes that the police will react in a timely fashion to the information provided by the 911 caller. A 911 system would hardly be effective if the police were expected to investigate the information provided and obtain independent confirmation of the information before acting on it.

In this case, the police had information that a 911 caller was describing ongoing criminal activity to the police dispatcher. The caller provided significant detail concerning that activity. The police were on the scene within minutes of the call. They could not ignore the information. I think it was reasonable for them to accept the accuracy of the information conveyed by the 911 caller. That information provided reasonable grounds to believe that individuals in the parking area of the club were committing serious crimes and reasonable grounds to believe that the perpetrators of those crimes would leave the parking area via one of the exits.

[15] Similar circumstances existed here. The 911 Call provided “significant detail” about the suspect, the gun and the location. Although the officers were aware that the intersection where the plaza is located has a history of false reports about individuals alleged to be in possession of guns – known as “swattings” – the description of the suspect and his activity in the plaza lent credence to the allegations. Edwards was seen in the vicinity of the stores described in the 911 Call, and sufficiently matched the description of the suspect to justify his arrest. No one else was seen by the officers who matched the description of the suspect. As in R. v. Carelse-Brown, 2016 ONCA 943 at para. 46, “not only were [the police] justified in acting on that information, they would have been derelict in their duty had they not acted on it.”

[16] The defence also does not take issue with the initial action of Det. Valencia in placing Griffith under investigative detention. As stated by the Court of Appeal in R. v. McGuffie, 2016 ONCA 365 at para. 35:

An individual may be detained for investigative purposes if the police are acting in the exercise of their duty and the detention is justified as reasonably necessary in the totality of the circumstances: R. v. Mann, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 2004 SCC 52, at para. 34; R. v. MacKenzie, [2013] 3 S.C.R. 250, [2013] S.C.J. No. 50, 2013 SCC 50, at para. 35. As explained in Mann:

The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference[.]

[17] The common law concept of “investigative detention”, and its limits, stems from the Supreme Court’s decision in Mann decided in 2004. The Court reviewed the concept, and how it is different from arrest, in R. v. MacKenzie, 2013 SCC 50. Moldaver J., for the majority in MacKenzie, stated at para. 35 that “Mann held that the police are entitled to detain a person for investigative purposes where they have reasonable grounds to suspect that the individual is connected to particular criminal activity and that such a detention is reasonably necessary in the circumstances (para. 45).”

[18] At para. 38 of MacKenzie, Moldaver J. distinguished the basis for a detention and the basis for an arrest as follows:

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. [emphasis in original]

[19] The nature of the detention affects the powers the police may exercise. An officer may conduct a “pat-down” search after placing someone in investigative detention, but only if the officer believes, “on reasonable grounds this his or her own safety, or the safety of others, is at risk…. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition”: Mann at para. 40. Further, the search must be limited to what is necessary for safety, it does not give the officers carte blanche to search more intrusively for anything that might be evidence of a crime. In contrast, upon arrest, an individual may be subject to a more extensive search for evidence.

[20] I agree that the police had grounds to place Griffith under investigative detention but, in my view, the police did not have grounds to arrest Griffith.

[21] Griffith was not the suspect described in the 911 Call. His only connection to the suspect was that for a matter of seconds he was seen talking to the suspect by the police as they pulled into the plaza. Det. Valencia, who had seen Griffith and Edward interact, did not intend to arrest Griffith. Det. Correia, while he might have been present at the plaza for a few seconds more than Det. Valencia, could not see what, if anything, Edwards and Griffith were doing next to the car other than talking.

[22] Det. Correia testified that he believed they were doing something with their hands in the vehicle. He said he was worried that if Edwards had a firearm he might have passed it off to Griffith or concealed it in the car. Det. Correia said it is his experience that if police are coming, those with firearms may take steps to pass them to someone else, or to discard them. However, he conceded in cross-examination that he had no knowledge that Edwards was aware of the arrival of police, or that he had any basis to think that Edwards thought police were coming to the plaza; indeed, Det. Correia and Det. Valencia arrived in unmarked cars and Det. Correia described Edwards as “shocked” when he was arrested. Further, there is no evidence that Griffith was attempting to flee or conceal anything, or obstruct the police, at the time of the incident. He was simply standing in front of the barber shop, with his young son, when Det. Valencia told him he was detained, with which there was immediate compliance, and Det. Valencia then put his gun away.

[23] Despite seeing that Det. Valencia had placed Griffith under investigative detention and that the situation was calm, Det. Correia nevertheless ordered the arrest of Griffith for possession of a firearm because, as he put it in his direct examination, he was “potentially in possession of a firearm.” Det. Correia’s evidence was that having observed Edwards and Griffith talking briefly next to the car, he believed they were “connected to something” and he arrested Griffith so that he could “investigate further.” When pressed, Det. Correia said the “something” was a “firearm.” Although Det. Correia said that what he observed of Edwards and Griffith standing by the car might have been a drug deal, he agreed that Griffith’s arrest was for possession of a firearm.

[24] That Griffith was “potentially in possession of a firearm” and that Griffith and Edwards were “connected to something” might be more than a “hunch”, but it is certainly no more than suspicion. Det. Correia was dealing with possibilities, not probabilities. This is not reasonable grounds to believe Griffith had a firearm but, at most, reasonable grounds to suspect he did.

[25] In reaching this conclusion I have considered the point, emphasized by the Crown, that Det. Correia is a very experienced police officer, who has investigated many firearms offences. As Moldaver J. noted in MacKenzie at para. 62-64:

Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. That is their job. They do it every day. And because of that, “a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police.” [citation omitted] Sights, sounds, movement, body language, patterns of behaviour, and the like are part of an officer’s stock in trade and courts should consider this when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold.

[26] Justice Moldaver also cautioned at para. 65 that “it is equally vital that the police be allowed to carry out their duties without undue scepticism or the requirement that their every move be placed under a scanning electron microscope.”

[27] However, these comments about training, experience and the need to avoid “undue skepticism” were made in the context of the role of the police in placing someone under investigative detention, where an immediate concern about public safety exists and an individual’s liberty and privacy are impaired in a limited way for a limited purpose. Arrest is different, as it gives the police broader investigative powers, and has a more serious impact on the rights of individuals.

[28] Accordingly, I conclude that the arrest of Griffith was unlawful and that his detention, insofar as it constituted an arrest, was arbitrary and a breach of s. 9 of the Charter.

Lawfulness of search

[29] The fact that the search followed the arrest as an incident of the arrest, also makes the search unreasonable. Having overstepped their powers by arresting Griffith, the search was not authorized by the arrest. However, had the police limited their restraint of Griffith to an investigative detention, they would have acted lawfully in giving Griffith, and his satchel, the pat-down search to ensure he did not have a firearm. Indeed, the evidence was that Det. Valencia did only give Griffith a pat-down search looking for a weapon. As I will discuss in my analysis of s. 24(2) of the Charter, this has some bearing on whether the evidence obtained should be excluded.

Right to counsel

[30] The failure to inform Griffith of his right to counsel prior to or during the search is a breach of s. 10(b) of the Charter which requires that a person be given his rights “without delay”. This was done with Edwards, who was advised of his rights by Det. Correia immediately upon his apprehension, but was not done with Griffith until after the search and after he was placed under arrest on drug charges.

[31] In R. v Suberu, 2009 SCC 33 at para. 2, the Supreme Court clearly stated “the police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention.” This did not happen here.

Section 24(2) – Should the evidence be excluded?

[32] In light of my conclusion that the police violated sections 8, 9 and 10 of the Charter, the evidence seized and now sought to be relied on by the Crown was “obtained in a manner” that infringed Griffith’s rights. Section 24(2) of the Charter requires that “the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

[33] In R. v. Grant, 2009 SCC 32 at para. 67, the Supreme Court stated that the purpose of s. 24(2) is “to maintain the good repute of the administration of justice.” To meet that purpose the Court emphasized that one must take a broad view of the administration of justice and ask “whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.” (para. 68) One should not focus on the public’s reaction to a particular case, but at the impact exclusion of evidence would have on the “overall repute of the justice system.” The focus is on “systemic concerns.”

[34] The Supreme Court set out three factors to assess and balance in applying s. 24(2): “(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.” (Grant, para. 71)

Seriousness of the breaches

[35] Although I have found that three sections of the Charter were breached, the number of breaches is not the issue, but rather whether they were serious such that they favour exclusion of evidence.

[36] In this case, I find the breaches were not serious.

[37] First, it must be borne in mind that the police were responding to an urgent and potentially very dangerous situation. Firearms are a serious problem and pose a grave threat to the safety of the public, and to the police who must investigate their possession and use. As Doherty J.A. observed in R. v. Golub, 1997 CanLII 6316 (ON CA) at para. 18:

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.

[38] In this case, the direction to arrest Griffith by Det. Correia, while unjustified, was an action taken in good faith by an officer acting in the heat of the moment in a dangerous situation. In my view, therefore, the breach of s. 9 of the Charter was not serious and does not favour exclusion.

[39] Turning to the search, it was technically unauthorized because it followed an unlawful arrest; however, a pat-down search was permissible had Griffith remained in investigative detention. Counsel for Griffith argues that by arresting him the police were able to do a more intrusive search including a search of the satchel, and that this makes the Charter breaches more serious.

[40] However, the evidence was that Det. Valencia only did a pat-down search of Griffith looking for a weapon. As part of the pat-down search, Det. Valencia was entitled to “pat-down” the satchel worn by Griffith, which is what he did. Det. Valencia testified that before he opened the satchel, he felt something “hard” in it which alarmed him as it might have been a gun. Only then did he open the satchel and find the cocaine and glass jar with marijuana. In my view, therefore, the manner of the search was reasonable having regard to the potentially dangerous situation. But for Det. Correia’s order to place Griffith under arrest, it would have been an entirely lawful search. This minimizes the seriousness of the breach and in these circumstances the breach of s. 8 also does not favour exclusion.

[41] Given the very short lapse in time between Griffith’s arrest and compliance with s. 10(b) of the Charter, I also find this breach not to be serious. Again, the dangerousness of the situation and its volatility must be kept in mind. Det. Valencia was involved in an emergency call about a firearm. Griffith was standing in a strip plaza with other people around him. He had a child with him. There was a lot of commotion. Det. Valencia told Griffith he was under detention for possession of a firearm, and then told him he was under arrest for that offence. He was immediately handcuffed, given a pat-down search, drugs were found, and he was then told he was under arrest for possession of controlled substances. At that point, all within about a minute of Det. Valencia approaching him, Griffith was advised of his right to counsel.

[42] Counsel for Griffith argues that Det. Valencia’s explanation that his failure to inform Griffith of his right to counsel immediately was due to the dangerous situation was disingenuous and suggests bad faith, pointing to the fact that Det. Correia immediately informed Edwards of his rights. I do not draw such a conclusion. Det. Valencia was indeed in a dangerous and volatile situation and his explanation is quite reasonable. To the extent Griffith was not informed of his rights under s. 10(b) of the Charter “without delay”, I find the breach to be minor and understandable, was not in bad faith, and was not serious such that it would favour exclusion of evidence.

Impact of the breaches

[43] In the circumstances of this case, I also conclude that the impact of the Charter breaches does not favour exclusion of the evidence.

[44] As discussed, Griffith had already been placed under investigative detention before he was told he was under arrest. The difference between being under arrest likely had no meaning to him, and had little practical impact. He may not have been handcuffed if he had remained under detention, but this is not clear from the evidence. Handcuffing in order to search someone for a firearm may not be unreasonable in such volatile settings. I note that in McGuffie the accused was also handcuffed before being patted down when in investigative detention while the police sought a handgun (para. 42).

[45] Furthermore, as I have noted, Griffith was only subjected to a pat-down search for a firearm. As Griffith was carrying a satchel which might have contained a firearm, Det. Valencia quite properly felt the satchel as part of his pat-down search and, upon feeling something hard in it which might have been a firearm, he opened it. I do not accept, therefore, that Det. Valencia exceeded powers available to him under “investigative detention” such that the finding of the drugs would not have occurred but for placing him under arrest. As I have concluded earlier, the manner of the search was not unreasonable.

[46] Further, in these circumstances, admitting the evidence would not “send the message that individual rights count for little.” Griffith’s privacy rights were not significantly compromised as the police had the power to do what they did absent an arrest. In this sense the evidence was “independently discoverable” and the impact is reduced: see Grant at para. 125.

[47] Similarly, the minor breach of s. 10(b) due to the urgency of the situation and the speed at which events unfolded, had little impact on Griffith’s Charter-protected interests. The evidence sought to be excluded was not obtained by reason of the violation of s. 10(b) of the Charter.

[48] Accordingly, the second part of the Grant test does not favour exclusion.

Society’s interest in deciding the case on its merits

[49] The third prong of the Grant test also favours admission of the evidence. As the Supreme Court stated in Grant at para. 79:

Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law”: R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20.

[50] Exclusion of the relevant and reliable evidence obtained in this case would in my view undermine the truth-seeking function of the justice system and “bring the administration of justice into disrepute.” Exclusion of the evidence will gut the prosecution of Griffith.

Conclusion on s. 24(2)

[51] All three factors in Grant favour the Crown and the admission of the evidence. While Charter violations must be discouraged, having regard to the circumstances of this case in which I have found the breaches not to be serious and which occurred in a very short period of time in a volatile situation, and the limited impact they had on the accused, together with the reliability of the evidence obtained, I am satisfied that admission of the evidence would not bring the administration of justice into disrepute. In particular, in this case admitting this evidence does not give rise to systemic concerns that would have a long-term impact on the reputation of the administration of justice: R. v. Rover, 2018 ONCA 745 at paras. 36-37.

Conclusion

[52] The application to exclude evidence is dismissed.

Paul B. Schabas J.

Released: June 22, 2022

COURT FILE NO.: CR-21-90000374

DATE: 20220622

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DAVID GRIFFITH

REASONS FOR JUDGMENT

Schabas J.

Released: June 22, 2022

R. v. Griffith, 2022 ONSC 3558

Case Summary

Background

Analysis

Detention and arrest

Lawfulness of search

Right to counsel

Section 24(2) – Should the evidence be excluded?

Seriousness of the breaches

Impact of the breaches

Society’s interest in deciding the case on its merits

Conclusion on s. 24(2)

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legal Tests 2

Legislation 2