COURT FILE NO.: 22-4-197 22-4-198 DATE: 20231004

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – RASHAWN CHAMBERS and JAHWAYNE GENESIS SMART Applicants

COUNSEL: Patrick Clement and Arian Khader, for the Respondent Gary Grill, for the Applicant, Rashawn Chambers Richard Posner, for the Applicant, Jahwayne Smart

HEARD: May 15, 23, 25, 26, 29, 31, June 2; July 4, 5 and August 9, 2023

B. P. O’MARRA J.

RULINGS ON APPLICATIONS TO EXCLUDE EVIDENCE PURSUANT TO THE CHARTER

NOTICE: Pursuant to s. 648 of the Criminal Code there is an order that there be no publication or transmission by any means of these rulings or the evidence and submissions related thereto until the jury is sequestered, or the trial is concluded, or until such further order of this court.

OVERVIEW

[1] The applicants are jointly charged with first degree murder and five counts of attempted murder. The deceased is a 12-year-old boy who was struck by a stray bullet.

[2] In the afternoon of November 7, 2020, a car was parked in the outdoor parking lot of an apartment building in Toronto. There were five occupants of that vehicle, three men and two women.

[3] Another car drove into that parking lot and backed into a parking space. Two men exited that car and began shooting at the first car. The first car managed to flee the parking lot. The two shooters chased that car on foot and kept shooting. Forensic evidence gathered later by police indicated that approximately 36 shots were fired by the two shooters. The three male occupants of the first car were wounded but survived. Tragically, a 12-year-old boy was struck in the neck by a stray bullet and later died.

[4] The investigation by Toronto Police Service (“TPS”) began that afternoon.

[5] In the afternoon of November 9, 2020, the two applicants were arrested as they exited the Canadian Tire store at Bay Street and Dundas Street in Toronto. Numerous officers were involved in the arrests as both applicants were forcibly taken to the ground and handcuffed behind their backs. Each of them was found to be in possession of a loaded handgun. Both of those firearms were later linked forensically to the shootings on November 7, 2020.

[6] Both applicants were transported to a police station in a prisoner van.

[7] Both applicants brought a series of pretrial applications to contest the admissibility of certain evidence based on alleged breaches of the Charter. These applications relate to the following:

1. Warrantless searches by the police at various locations that led to the applicants being viewed as suspects.
2. Challenges to the grounds to arrest each applicant.
3. Allegations of excessive force and brutality related to the arrest and transport of each applicant to the police station.

[8] The investigation by TPS included the gathering of the following evidence without prior judicial authorization:

• Access to and review of records held by Enterprise Car Rental (“Enterprise”) related to a particular Durango motor vehicle, including records of who rented it in the material time period as well as GPS live tracking on the Durango on the date that led to the arrest of both applicants.
• Review and seizure of surveillance video of an underground parking garage jointly shared by condominiums at 576 Front Street and 27 Bathurst Street in Toronto.
• Review and seizure of surveillance video of interior areas of the condominium building at 27 Bathurst Street as well as tenant fob records related to a particular unit.

[9] On May 23, 2023, I ruled that neither applicant had standing to challenge the search and seizure of these items based on s. 8 of the Charter.

[10] On August 9, 2023, I ruled that TPS had lawful grounds to arrest both applicants. I also ruled that the force used in the arrest and the circumstances of their transport to the station did not breach their rights under the Charter.

THE CHRONOLOGY

[11] The applicants presented a joint factum with a very helpful summary of the events. I have excerpted several portions of that supplemented with information from the Respondent’s factum.

[12] On November 7, 2020, Jonathan Adamski and four other persons were sitting inside Adamski’s Honda Accord parked in the rear parking lot at 25 Stong Court. At around 2:21 p.m., another Honda Accord – a newer model in silver with five spoke rim tires – entered the lot and parked behind Adamski’s Accord.

[13] Two individuals exited the silver Honda and approached Adamski’s vehicle while a third individual remained in the driver’s seat. Adamski started driving away from the two individuals before they were able to reach his vehicle. At this point, the two individuals started shooting at Adamski’s Accord. Adamski drove quickly to escape from the shooters. The two shooters tried to chase after the fleeing Accord on foot and continued discharging their firearms at it. As multiple rounds were being fired, a stray bullet hit Dante Adreatta, a 12-year-old boy who was walking with his mother on the west side of Jane Street, heading northbound towards Stong Court.

[14] The shooters fled 25 Stong Court in the silver Honda and headed northbound on Jane Street. Adamski eventually pulled his vehicle over at 415 Driftwood Avenue, roughly 1 km away from 25 Stong Court. Adamski and two others sustained gunshot wounds from the shooting. Dante succumbed to his injuries four days later.

[15] The Central Shooting Response Team (“CSRT”) of the Guns and Gangs Task Force at TPS attended 25 Stong Court. At the direction of the Forensics Identification Unit (“FIU”), officers on scene collected 36 cartridge casings. The officers began collecting surveillance footage of the area to gather information about the shooting and possible suspects.

[16] By viewing the surveillance footage connected to 25 Stong Court, the officers developed “a good overall understanding of what happened”, including the circumstances surrounding the shooting, suspect descriptions and vehicle descriptions. In addition, the police obtained a dashcam video installed inside a witness’s vehicle which had been parked closer to the front entrance of 25 Stong Court at the time of the shooting. The dashcam captured portions of the shooting, including a view of the shooters emerging from the silver Honda shortly before the shooting started, and Adamski’s Accord trying to escape from the shooting as the two shooters chased after it. Subsequently, the shooters’ silver Honda was seen fleeing the scene of the shooting, heading northbound on Jane Street. The Stong Court surveillance and dashcam video generated physical descriptions of the suspects involved in the shooting.

[17] The police also reviewed street surveillance videos in the vicinity of the shooting. A review of surveillance at the intersection of Jane Street and Shoreham Drive just north of the scene of the shooting showed a silver Honda with the same five spoke rims run through a red light at around 2:19 p.m. The speeding car narrowly missed hitting a pedestrian who was crossing on a green light. The police concluded this was the same silver Honda involved in the shooting.

[18] On November 8, 2020, York Regional Police (“YRP”) informed TPS that they located a silver Honda with five spoke rims matching the suspect vehicle’s description at 11 Creditstone Road in Vaughan, roughly 4 km north of where the shooting occurred. YRP officers sealed the silver Honda and TPS called for a departmental tow. The registered owner of the silver Honda had reported the car stolen on October 13, 2020. A fingerprint on the car was later matched to Rashawn Chambers.

[19] TPS collected surveillance videos from the vicinity of 11 Creditstone Road. A total of 32 video clips from 11 different cameras were reviewed. These videos allowed the police to track the movements of the silver Honda on November 7th shortly before and after the shooting. At around 1:55 p.m., a Dodge Durango and the silver Honda arrived at the intersection of Creditstone Road and Peelar Road. The occupants of the Durango got into the silver Honda and drove off, leaving the Durango on Peelar Road. The silver Honda drove down to Stong Court shortly before the time of the shooting and sometime thereafter drove back to the area of Creditstone Road and Peelar Road. Some of the occupants of the silver Honda got back into the Durango, and both vehicles drove toward 11 Creditstone Road. The Durango and Honda disappeared off camera view, after which only the Durango was seen driving away from 11 Creditstone Road. TPS concluded that the silver Honda associated with the Durango was the same one captured on the Stong Court surveillance, dashcam video, and the traffic cameras.

[20] The police concluded that two individuals were in the Durango and one person drove the silver Honda when the two vehicles first arrived at the intersection of Creditstone Road and Peelar Road. The surveillance videos then showed all three individuals sitting inside the Durango for some time before switching to the silver Honda to proceed in the direction of Stong Court. As this switch was taking place, the video obtained from 33A Peelar Road revealed an unobstructed view of the three individuals, from which police were able to ascertain their physical descriptions. The descriptions of two of the individuals matched those of the two shooters from the Stong Court surveillance and dashcam video.

[21] The first individual, exiting the Durango from the front passenger side, was seen wearing a “black sweater with the hood pulled up, black pants and bright white shoes”. The second individual exited the driver’s side in “all black clothing” – a black jacket, black pants and black shoes. The third individual exited from the rear driver’s side in “a black sweater with the hood up” and white writing inscribed on the back, green pants, white shoes, and white gloves.

[22] The police focused on the Durango, suspecting it was a specific model with a distinct grey colour, based on the vehicle’s physical features as they appeared on the 33A Peelar surveillance. The CSRT had a hunch that the suspect Durango might be a rental based on previous experience and requested from Enterprise a list of Dodge Durangos which had been rented out around the time of the shooting. This request, without prior judicial authorization, was made on the evening of November 8, 2020. The CSRT received the corresponding information on the following morning.

[23] The Enterprise records revealed approximately 155 Durangos rented out on the day of the shooting. The CSRT narrowed this list down to 55 vehicles matching the model, colour, and distinct features of the suspect Durango gleaned from the 33A Peelar Road surveillance footage. The CSRT cross-referenced this list with the Toronto parking enforcement data to “narrow down a needle in a haystack”. A review of the data indicated that two similar Durangos had been ticketed within days before and after the shooting: a Durango bearing a license plate CRAN 930 was ticketed on November 5 and 6, 2020 at 576 Front Street; and another with a license plate CPYW 138 on November 8, 2020 near 77 Kensington Avenue. The CSRT obtained information about the renters, including the name, date of birth and residential address. The record showed O’Neil Brown as the renter of CRAN 930.

[24] On the morning of November 9, 2020, CSRT officers attended 576 Front Street to obtain surveillance footage of the underground parking garage where CRAN 930 had been ticketed in the days leading up to the shooting. This was either to rule out CRAN 930 as the suspect vehicle or confirm the suspicion that it may be related to the shooting at 25 Stong Court.

[25] A review of the surveillance videos from the parking garage dated November 6, 2020 revealed three individuals emerging from the Durango, in the same clothes worn by the suspects in the Stong Court surveillance, dashcam video and 33A Peelar surveillance. Other surveillance videos showed these three individuals getting into the Durango.

[26] Upon learning that 576 Front Street shares the underground parking garage with 27 Bathurst, CSRT officers attended 27 Bathurst to obtain video surveillance for that building. They did not seek prior judicial authorization before doing so. Following their request of building management/security, the officers gained access to the video surveillance. A review of the video surveillance from 27 Bathurst revealed three individuals matching the suspects’ descriptions entering the building using a key fob. The CSRT officers also gained key fob/tenant data from building management/security which corresponded with the suspects’ entry to the building (without prior judicial authorization). This data linked the suspects to Unit 504. The owner of Unit 504 had leased it to Elisha Connolly for one year from October 2020. She was out of town in the first week of November 2020. Neither the owner or lessee knew either applicant or consented to either of them being in Unit 504.

[27] The evidence on these applications related to the arrest and transport of both applicants is contained in records filed by all parties and the viva voce evidence of three police officers. Neither applicant testified nor filed affidavits signed by themselves.

[28] A summary of the evidence of Officers Rogers, Jaswall and Storey is as follows:

Detective Storey’s Testimony

Detective Storey participated in the arrest of the accused on November 9th, 2020 and used his taser on Mr. Chambers.

Storey had received a limited briefing on the suspects in the case, including descriptions and pictures, the fact that the suspects had used an automatic firearm in the November 7th shooting, and the number and ages of the victims. He assumed the suspects were still armed because they hadn’t been arrested and they likely feared a retaliatory shooting. He considered the upcoming arrest to be high-risk.

When Storey pulled up in front of the Canadian Tire, the arrest was already underway. He described it as a fight where no one was gaining the upper hand. He heard a lot of yelling, including the word “gun,” which officers are trained to yell when they see a gun, not when they seize it.

He did not wish to jump on either suspect because in his experience that could disrupt another officer’s maneuvers or “throw off the whole dynamic”. He did not use pepper spray because of the chance of disabling another officer or harming a bystander. He did not use his baton, since the scene was chaotic and he feared he might hit another officer or strike at a suspect’s vital area by mistake. Therefore, he used his taser.

Storey testified that there are two ways to use a taser: full deployment, which fires darts that make contact with the target and create an electrical circuit, and drive-stun, in which an arc of electricity is released directly from the taser cartridges, but no darts are fired. The shock effect of a drive-stun is isolated and intended only to cause pain; unlike a full deployment, it does not run a current between two points on a target’s body in order to paralyze them. A full deployment typically leaves puncture marks, while a drive-stun might leave a bit of a burn mark but nothing more, in Storey’s experience.

Storey first approached Smart and quickly decided to use his taser. Storey testified that he pushed his taser up against Mr. Smart’s upper body over his clothing and depressed the trigger for a drive-stun. Smart was on his back struggling with multiple officers, and his shirt rolled up to reveal a gun in the front-centre of his waistband. Still holding the taser to Smart with one hand, Storey removed the gun with his other hand and held it behind him. At that point Smart stopped resisting and was handcuffed.

Initially, Storey testified that he had made the decision to drive-stun Smart, but did not actually do so, because at that moment he saw Smart’s gun and removed it, at which point Smart stopped resisting. However, on cross-examination, Storey testified that he thought he had deployed the taser at the time, and only learned later that according to the taser’s internal log, it had not actually deployed.

With Smart’s gun still in his left hand, Storey then quickly moved over to the ongoing scuffle with Chambers. Chambers’ gun had been removed from his body and was on the ground near the scuffle. Storey stated that he was still concerned about Chambers gaining access to that gun but admitted that he made no attempt to move it, instead stepping right over the gun as he approached Chambers.

Officer Tavares had Chambers’ right hand behind his back and handcuffed. Chambers’ other hand was uncuffed and four officers were attempting to finish handcuffing him. Storey acknowledged that according to video of the arrest, Chambers was not struggling on his right side at this time. However, he was still struggling on the other side, and so he still presented a threat.

Storey saw an opening in the scuffle and used the drive-stun function on Smart, but did not achieve full contact. He saw another opening and drive-stunned him again, this time making full contact. Both drive-stuns were over his clothing. At that point the officers were able to gain control of Mr. Chambers and handcuff him.

Storey testified that after being handcuffed, neither suspect had any visible injuries.

During cross-examination, Storey approached Chambers in the prisoner’s dock. Chambers lifted his shift to show Storey the burn marks on the back right side of his body. Storey confirmed that Chambers’ burns were located in the same area that he had deployed his taser. Storey also measured the distances between the four electrodes on the taser, which were 46mm diagonally across and 19mm vertically.

Detective Constable Jaswall’s Testimony

Jaswall participated in the arrest of Mr. Smart, punching him once in the side.

Going into the arrest, Jaswall knew that the shooters had used an automatic and a semiautomatic firearm. He believed that they were likely armed on that day because of the brazen nature of the shooting and because they may have been anticipating a retaliatory shooting from the surviving victims or their associates. He testified that the accused presented an extremely high risk to public safety and that a failed arrest would be catastrophic. Jaswall believed that speed and surprise were crucial to a successful arrest.

The suspects entered the Canadian Tire at Bay and Dundas at 16:43 on November 9th. Jaswall, who was in plainclothes, observed Chambers and Smart purchasing an item at the self-checkout and then exited the store. At this point, Detective Tavares advised Jaswall and the three other officers outside the store that Chambers and Smart were arrestable. Jaswall admitted that they did not have a detailed plan for how they would effect the arrest. The only thing established in advance was who would target Chambers and who would target Smart. Jaswall also noted that the intersection was heavily populated at the time.

Chambers exited the store first, with Smart behind him. Officer Jugpall attempted to tackle Smart, jumping on top of him. Officer Jugpall ended up on the ground with Smart in an elevated position over him. Jaswall then punched Smart with as much force as he could in the left side of the ribs. He testified that he was surprised by Jugpall’s tackle and Smart’s movements, and was concerned for Officer Jugpall’s safety. His punch was also intended as a “distractionary strike” in case Smart was trying to grab his firearm.

After punching Smart, Jaswall jumped onto his back, grabbing him under the armpits and wrapping his legs around him. Jaswall told Smart to stop resisting and get to the ground. Smart resisted frantically with his arms and tried to shake Jaswall off to break free, but eventually they fell to the left. Several officers surrounded them. Smart’s gun was seized. At that point, Officer Jugpall handcuffed Smart and Jaswall was able to get up.

By this point over a dozen officers were present. Smart was briefly searched and told of the charges against him, and then he was placed in a wagon with Chambers. Jaswall testified that the accused were handcuffed to the rear because of the continued risk of weapons. Jaswall initially testified to the cuffs being double locked, meaning there was no risk of them tightening or loosening with movement. However, he later acknowledged he did not cuff them and could not say whether the cuffs were double or single locked. The latter would allow them to tighten with movement. Jaswall testified that the officers wanted to get the handcuffs on quickly and acknowledged that they may not have had time to carefully calibrate how tight they were.

The wagon departed at 5:22 pm, with Jaswall following in a separate car. The wagon arrived at 31 Division at 6:34 pm. There was no stop to open the compartment where the accused were located, which Jaswall said was likely due to Smart’s resisting arrest and the seriousness of the crimes with which they were charged. At some point Smart was cuffed to the front, as this is how Jaswall saw him emerge from the wagon at 31 Division.

The accused sat in the wagon for a further 45 minutes, with Smart exiting the wagon for booking at 7:18 pm. Jaswall testified that some form of screening typically needs to be completed, but he could not explain the delay.

After exiting, Smart was asked if he had any injuries and he complained about his wrists. Jaswall recalled the booking officer observing Smart’s hands being injured in some way due to the handcuffs. However, Jaswall testified that he did not notice anything of concern on Smart’s wrists.

After Smart was strip searched and had spoken to his lawyer, Chambers exited the wagon. He complained to Jaswall twice about pain in his hands or wrists. Again, Jaswall testified that he observed there was nothing “of concern” regarding Chambers’ wrists. At one point an officer, who Jaswall tentatively identified from an audio recording as Detective Constable Shufman, told Chambers that he was required to identify himself as he begged to have his handcuffs removed.

Jaswall stated that neither Chambers nor Smart requested medical attention, and neither had difficulty removing their clothing for the strip search that was conducted. Jaswall said he did not notice Chambers’ injuries from the taser or his bloodshot eyes during the search.

Detective Constable Rogers’ Testimony

Rogers was the lead investigator who made the call to arrest the two accused.

The shooting occurred on the afternoon of November 7th, 2020 at 25 Stong Court. Security camera footage from that address (the “Stong Video”) as well as other security cameras along Jane Street showed the two shooters and one driver fleeing north in a four-door Honda Accord. On November 8th, the Accord was located near Peelar Road. Security camera footage from this location on the afternoon of the shooting (the “Peelar Video”) showed three individuals matching the shooters and driver exiting the Accord and getting into a Dodge Durango.

The Peelar Video was of better quality than the Stong Video. Rogers noted down the following description of two suspects based on the Peelar Video:

• Suspect 1, taller: black sweater or jacket with hood up, white writing across upper back, white stripe between pants and sweater believed to be a shirt, green pants, white shoes, white gloves.
• Suspect 2, shorter: Black male, black jacket, sweater with hood up, black pants, white shoes, putting on dark black gloves.

Rogers acknowledged that he could not determine the suspects’ exact height from the Peelar Video. He could, however, determine that one was taller than the other, and that both were within the range of 5’6” to 6’2”.

On November 8th, officers on Rogers’ team contacted Enterprise, a car rental company that was known to rent out Durangos. Using the Peelar Video, officers identified the particular model of Durango and learned from Enterprise that there were 55 such Durangos out on rental on November 7th.

Officers checked those 55 license plates against parking enforcement records and found two matches. One of those matches was for a Durango parked at 575 Front Street on November 5th and 6th. Officers reviewed security camera footage from November 6th and 7th at 575 Front Street and nearby 27 Bathurst Street (the “Bathurst and Front Videos”) and identified two individuals matching the shooters from the Peelar Video. Rogers testified that he did not personally view the Bathurst and Front Videos prior to making the call to arrest, but had no reason to doubt his officers’ identification.

On November 9th, Enterprise agreed to activate the GPS tracker on the Durango. Officers on Rogers’ team located the Durango at Edward Street, near Bay and Dundas. Officer Rasmussen observed two individuals exiting the vehicle, and transmitted the following description to Rogers:

• Driver (Smart): male, Black, 5’10”, thin-medium build, black pants, black hooded sweater with white logo on front, orange logo on the back, black and orange hat.
• Passenger (Chambers): male, Black, 5’7”, thin, black pants, black hooded sweater, white shoes, black baseball hat.

Officer Rogers then called for the arrest of Chambers and Smart. He provided two main grounds for making this call: the fact that Chambers and Smart were in the same Durango in which the shooters were observed on November 6th and 7th, and the fact that the descriptions provided by Rasmussen matched the suspects in the Peelar Video.

With regards to the Durango, Rogers admitted that police had no evidence capable of proving that the chain of possession between November 7th and 9th was continuous. Rogers simply inferred that the people using the car on the 7th were the same people using it two days later. He stated that he believed the shooters would continue using the Durango because they had switched to it from the Accord on the 7th and it was not directly associated with the shooting. Rogers acknowledged, however, that the car was rented by another individual, and that there were three people observed in the Durango on the day of the shooting.

With regards to the descriptions, Rogers was questioned about four elements: height, build, complexion, and clothing. Rogers testified that Rasmussen’s description matched his impression of the shooters’ heights from the Peelar Video. He insisted that height was a factor but acknowledged that he could not have ascertained exact heights from the Peelar Video, only estimates. Rogers described the two shooters as having a thin build, but only Chambers was described as thin by Rasmussen, Smart having a thin to medium build. Like the shooters, Chamber and Smart were Black. Similarity in clothing was an “important” part of Rogers’ decision to call for arrest. He admitted that none of Smart’s clothing matched the taller shooter’s, except that they were both wearing hooded sweaters. Rogers testified that although the exact clothing was different, the style of clothing was similar. However, he acknowledged that it was a common style. Chambers wore black pants and white shoes, which matched the shorter shooter, and a similar but not identical sweater.

THE WARRANTLESS SEARCHES AND S. 8 OF THE CHARTER

[29] Counsel for both applicants submitted that they do not accept as binding on them that either or both applicant did not have some interest in the Durango vehicle or Unit 504 as a basis for an expectation of privacy. The applicants submit that the Crown could or should have called some viva voce evidence to dispute their claim to at least some degree of a possessory interest in the Durango and Unit 504.

[30] There was evidence filed by the respondent that the lawful possessors of the Durango and Unit 504 did not know or agree that either applicant could possess either the Durango or Unit 504.

[31] The applicants could have testified but declined to do so. They had no obligation to do so. However, the absence of any such evidence has implications in light of the onus on these applicants.

[32] The right to challenge a search and seizure under s. 8 of the Charter is based on a reasonable expectation of privacy related to an object or location where it is found: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 10; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 220.

[33] The burden of establishing standing on an alleged violation of s. 8 of the Charter rests on the claimant on a balance of probabilities: R. v. Pugliese (1992), 8 O.R. (3d) 259 (C.A.), at p. 6.

[34] In Marakah at para. 11, the court referred to the following inquiries on the issue of standing for the purposes of s. 8 of the Charter:

1. What was the subject matter of the alleged search?
2. Did the claimant have a direct interest in the subject matter?
3. Did the claimant have a subjective expectation of privacy in the subject matter?
4. If so, was the claimant’s subjective expectation of privacy objectively reasonable?

[35] In R. v. Edwards, 1996 SCC 255, [1996] 1 S.C.R. 128, at para. 45, the court referred to a list of factors in determining whether a subjective expectation of privacy is objectively reasonable as follows:

1. presence at the time of the search;
2. possession or control of the property or place searched;
3. ownership of the property or place;
4. historical use of the property or item;
5. the ability to regulate access, including the right to admit or exclude others from the place;
6. the existence of a subjective expectation of privacy;
7. the objective reasonableness of the expectation.

[36] In R. v. Van Duong, 2018 ONCA 115, at paras. 6 and 7, the court dealt with a case where the accused obtained possession of a residence by means of a fraud. They used the residence for cooking methamphetamine. They had the physical ability to admit and exclude others from the residence. However, they had no legal right to do so. They may have desired privacy. However, they did not have a subjective expectation of privacy in the sense of entitlement to be left undisturbed.

[37] In R. v. Merelles, 2016 ONCA 647, at paras. 2, 3, 14, 21, 22, the accused had a key to a garage of his girlfriend’s home. He stored items there with consent. There was no evidence of historical use or other connection before the date of the search by police. The trial judge was not prepared to draw an inference of a subjective expectation of privacy. The Court of Appeal agreed that the appellant was “no more than a privileged guest” and that he did not have a subjective expectation of privacy.

[38] In R v. Yu, 2019 ONCA 942, 151 O.R. (3d) 244, at paras. 65, 80, 85, 92, the court indicated the following:

• There is no reasonable expectation of privacy in a public parking garage adjacent to a condominium building.
• The level of expectation of privacy in some access controlled areas, such as an elevator lobby, is low.
• The condominium board, and by extension property management, is entrusted with the security of the building. They can consent to entry by the police into common areas of the building.

[39] There is no reasonable expectation of privacy in the parking garages of multi-unit buildings and management can consent to police entry, given the number of residents and non-residents who use these common areas and given the lack of control exercised by individual unit holders: R. v. Khiar, 2021 ONSC 4677, at para. 93.

[40] There is no reasonable expectation of privacy in fob data, the fact that someone attends a particular floor of a condominium or apartment and which unit he or she is associated to: R. v. Saciragic, 2017 ONCA 9, at para. 34.

[41] In R. v. Dosanjh, 2022 ONCA 689, 163 O.R. (3d) 401, the appellant used a fake name to rent a vehicle. He had no colour of right over the vehicle and could neither lawfully use the car nor exclude others from it. The vehicle was equipped with a system that automatically tracked and logged the vehicle’s movement. The tracking data is a less intrusive means of surveillance than electronic audio or video surveillance. The appellant was a trespasser in the vehicle when it stored and collected data. His fraudulent access to the vehicle and lack of colour of right informed whether he could objectively expect privacy in the data generated. Trespassing is relevant to the objective reasonableness analysis in the sense that it renders the connection between the person and the subject matter of the search tenuous.

[42] The parking lot shared by the condominiums at 576 Front Street and 27 Bathurst Street was a public parking lot. Anyone could enter the lot unimpeded and pay for parking. There are large signs at the entrance announcing, “public parking”. In any event, the applicants were neither owners nor lessees of a unit in either condominium. Their current claim, without evidence, of a desire for privacy at that location does not equate in law to a reasonable expectation of privacy. They have no standing to challenge the review and seizure of video surveillance at the underground parking area. The police routinely entered that area to enforce parking by-laws and issue parking tickets. The Durango in question received parking tickets dated November 5 and 6, 2020. Parking at the lot required the driver to enter the vehicle’s plate number in the ticket dispensing machine. This would record their arrival time for the police who routinely monitored the parking lot for infractions.

[43] The condominium management at both 576 Front Street and 27 Bathurst Street consented to police obtaining access to and seizing surveillance video at both buildings. They were lawfully qualified to provide that consent.

[44] In some cases the Crown relies on evidence of lawful access and control of an item or premises to prove control and knowledge of items seized by the police. In the case before me that is not the position of the Crown. The fact that the applicants had access to and control of the Durango and Unit 504 does not, without more, bestow them standing to challenge the searches. The only evidence presented is that neither applicant had lawful possession and control of, or at least permission to possess and control, the Durango or Unit 504.

[45] Neither Applicant had standing to challenge the warrantless searches conducted at Enterprise and the condominium buildings at 576 Front Street and 27 Bathurst Street and the adjacent public parking lot. On that basis the applications pursuant to s. 8 of the Charter are dismissed.

GROUNDS TO ARREST

[46] Section 495 of the Criminal Code, R.S.C., 1985, c. C-46 permits a peace officer to arrest without warrant a person who, on reasonable grounds, he believes has committed or is about to commit an indictable offence. The officer must subjectively have reasonable and probable grounds on which to base an arrest. Those grounds must also be justified on an objective basis. The police are not required to establish a prima facie case for conviction before making an arrest: R. v. Storrey, 1990 SCC 125, [1990] 1 S.C.R. 241, at 249-250.

[47] Information that would not meet the reasonableness standard on an application for a search warrant may still meet that standard in the context of an arrest: R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at para. 18.

[48] In R. v. Hanson, [2009] O.J. No. 4152 (S.C.), at para. 58, Justice Garton noted that in the objective assessment the various items of information should not be viewed in isolation:

The totality of the circumstances relied upon by the arresting officer will form the basis for the objective assessment. It would constitute an error in law to assess each fact or observation in isolation. An objective assessment will include the dynamics within which the police officer acted, as well as his or her experience. Because a trained officer is entitled to draw inferences and make deductions drawing on experience, a reviewing court must take these factors into account. [Citations omitted.]

[49] The totality of the circumstances relied upon by the arresting officer will form the basis of the objective assessment: R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50, at para. 4.

[50] Officers may form the grounds to arrest based on information from other sources, including other officers, as well as their own observations. Officers on an investigative team are not silos restricted to act only on what they personally observe or information they receive: R. v. Debot, 1989 SCC 13.

[51] Reasonable grounds for an arrest fall within the realm of probability, not possibility: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 38.

[52] The video surveillance at the scene of the shooting on November 7, 2020 and at other locations before and after that date is very important but has limitations. Neither applicant can be identified solely by looking at the video surveillance.

[53] The appearance of the two shooters on the video at that scene matches the general description of the two men seen in the videos at other locations. There were discrepancies in the clothing worn by one or the other in some of the videos. Clothing is obviously something that can be easily changed from day to day or in the course of the day.

[54] The critical connection of the two shooters to the arrest of both applicants relates to the two motor vehicles prominently seen in videos before and after the shooting. The silver Honda that transported the two shooters to and from that scene is seen on video before and after the shooting in connection with a Durango. It was reasonable for the police to believe, both subjectively and objectively, that the Durango observed shortly after the shooting was used to transport the shooters away after they got out of the silver Honda. Surveillance video at the condominium and public parking lot at 576 Front Street and 27 Bathurst Street shows two men who matched the general description of the two shooters being in and out of the Durango. It was reasonable for the police to believe, subjectively and objectively, that the two men in the Durango on November 9, 2020 were the same two men at the shooting and the subsequent transfer to the Durango on November 7, 2020.

[55] Based on the evidence and information presented on these applications I am satisfied that the police had reasonable grounds to arrest the two occupants of the Durango on November 9, 2020. The grounds for those arrests were Charter compliant.

[56] Loaded handguns that were later forensically linked to the shooting were recovered from each applicant in the course of the dynamic takedowns. Since I have found that the arrests were lawful, the recovery of both firearms was incident to those arrests. Whether the handguns were actually removed from each applicant by police, or whether either or both handguns fell out during the struggle, they were lawfully seized and detained as very cogent evidence against each applicant.

THE ARREST AND TRANSPORT OF BOTH APPLICANTS FROM THE SCENE IN CUSTODY

[57] Both applicants claim that the police used excessive force, even brutality, in the course of arresting them and transporting them from the scene. They allege breaches of their Charter rights and seek exclusion of significant evidence as remedies.

[58] Neither applicant testified. They were not obligated to do so. However, the onus rests on them to prove the alleged breaches of their respective rights under the Charter.

[59] The court had the benefit of a very good record of the arrests and the transports to the station. Virtually the entirety of those events was captured on surveillance videos. In addition there was the viva voce evidence of three police officers who were significantly involved in the arrests.

[60] There is no doubt that the arrests were carried out in a very physical and overwhelming manner by police, who significantly outnumbered the two applicants. It was a dynamic take down.

[61] I am also satisfied that both applicants were in physical and emotional pain and distress during the long ride to the police station and the time at the station before the handcuffs were removed. It was the tight handcuffs behind their backs that caused this pain and distress.

[62] For the reasons that follow I am not satisfied that the Charter rights of either applicant were breached by the actions or lack of care by any of the police officers involved in the arrests and transports to the station.

[63] The issues of excessive force or inattention by police in the course of arrests and detention has been the subject of considerable judicial comment.

[64] A breach of s. 7 of the Charter is made out where there has been a substantial interference with the physical and psychological integrity of the accused while under arrest and detention: R. v. Nasogaluak, 2010 SCC 6 at para. 38.

[65] Intentional abuse is not the only way a breach of s. 7 of the Charter can be found. Omissions or a failure to act may also support such a finding. Examples would include the following:

• Leaving a prisoner in a cell for an unacceptably long time.
• Gross negligence resulting in injury by an officer transporting a prisoner: R. v. Dickie, 2014 ONSC 1576 at paras. 21, 22.

[66] For obvious and valid reasons the police will use a different approach when a subject is suspected to be armed and dangerous than in a case involving outstanding traffic tickets: R. v. Genest, 1989 SCC 109 at p. 89.

[67] Excessive force may give rise to a breach of s. 7 of the Charter if it substantially interferes with the security of the person. The police are entitled to use force to make an arrest as long as it is proportional, reasonable and necessary in the circumstances: R. v. Pan, 2012 ONCA 581, at paras. 45, 47.

[68] A review of force used by police in the context of an arrest requires an assessment of the reasonableness of a forcible arrest in all the circumstances: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at paras. 74-76.

[69] A reviewing court must guard against a tendency to over-reliance on reflective hindsight. For example, if something bad happens the measures were inadequate. If nothing happens the measures were excessive. A critical contextual circumstance for many arrests is the dynamic and fluid nature of an apprehension with the need for rapid, on the spot decisions by police. A certain amount of latitude is permitted to the police who are under a duty to act and must often react to difficult and exigent circumstances: Asante-Mensah, at para. 73.

[70] Police officers put their lives and safety at risk in order to preserve and protect the lives of others in potentially dangerous situations: R. v. MacDonald, 2014 SCC 3 at para. 64.

[71] It may be, that in a given case, inconsistencies between the evidence of the officers related to use of force are the result of the intensity, stress and danger of the unfolding events: R. v. Boston, 2013 ONCA 498, at para. 13.

[72] The officers’ belief about the level of force required must be objectively reasonable: Nasogaluak at para. 34.

[73] Police actions in arrest situations should not be judged against a standard of perfection. The measure of force to be used in an arrest and detention cannot be expected to be exactitude: R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.); R. v. Mulligan (2000), 142 C.C.C. (3d) 14 (Ont. C.A.) at para. 41.

[74] Since a range of reasonable force exists in a given set of circumstances, a description of what police might have done differently “may well run afoul of the discretionary allowance for police action”: R. v. MacKay, 2012 ONCA 671, 112 O.R. (3d) 561, at para. 128.

[75] Judicial review of the border between excessive and acceptable force looks to the reasonable officer in similar circumstances of those faced by the subject officers. The factors to be considered include the knowledge, training and experience of the officers: R. v. DaCosta, 2015 ONSC 1586, at para. 105.

[76] In Golub, at p. 10, the court addressed the issue of the police in potentially dangerous situations to effect an arrest:

In my opinion, one cannot ask the police to place themselves in potentially dangerous situations in order to effect an arrest without, at the same time, acknowledging their authority to take reasonable steps to protect themselves from the dangers to which they are exposed. If the police cannot act to protect themselves and others when making an arrest, they will not make arrests where any danger exists and law enforcement will be significantly compromised. The frustration of the effective enforcement of the criminal law is the hallmark of the exceptional circumstances identified in Feeney.

[77] In R. v. Hussey-Rodrigues, 2022 ONSC 1569, at paras. 175 and 176, the court referred to the need to consider all circumstances in such situations:

Detentions and arrests are often dynamic and fluid in nature. This case is a clear example of a fast-paced, dynamic detention which took place over the course of a few minutes. The Supreme Court of Canada has recognized on numerous occasions in the importance of examining the totality of the evidence though the lens of an officer with training and experience, and to resist reflective hindsight. [Citations omitted.]

176 Given that police are not measured to a standard of perfection, they need not demonstrate that the approach taken was the “correct” one, only that it was based on reasonable grounds, in the totality of the circumstances. Even where the response taken results in significant force used or significant injuries, if the force used was justified in the circumstances, it is not excessive. [Citations omitted.]

[78] The specific plans for the location, time and nature of the takedowns in this case were formulated very shortly before the arrests. The two applicants were observed and followed as they got out of the Durango in downtown Toronto and walked into the Canadian Tire store. Several plain clothes officers waited outside the main exit of the store. The plan was to overwhelm both applicants as they left the store with the element of surprise and overwhelming numbers. Both applicants would be grabbed, put onto the ground and cuffed to the rear. The video clearly shows this is what happened. The only weapon used by the police in the course of the takedown was a taser by Officer Storrey.

[79] After both applicants had been restrained and secured they were each placed into a separate compartment of a prisoner wagon for transport to the station. There is a complete video of each applicant during the long ride to the station. Neither applicant appeared to have sustained any injury in the course of the takedown other than an alleged injury related to the taser. I will address that allegation later in these reasons.

[80] An assessment of the force used in the arrests must be viewed in the context of the shooting incident two days prior. The two suspects had opened fire with automatic or semi-automatic handguns in a residential area in daytime. At least 36 shots were sprayed at the fleeing car of the adult victims. A child walking nearby with his mother was struck. The police reasonably viewed the two suspects as potentially armed and reckless as to the use of their firearms.

[81] The fact that both applicants were in possession of loaded handguns cannot be considered to boot-strap the grounds for arrest. However, the fact that both applicants carried loaded handguns is a valid consideration as to the degree of force used in the arrests. The police were proven correct in their reasonable belief that both applicants were armed and dangerous.

[82] These arrests occurred in daylight near a busy intersection in Canada’s largest city. The police were properly concerned and committed to getting complete physical control of both applicants to avoid a potential shoot out.

[83] In cross examination and in submissions, counsel for the applicants suggested that the time and location chosen for the arrests created more potential danger to police, applicants and members of the public than was necessary. They also suggested that more force, even to the extent of brutality, was used by the police than was necessary. In my view those suggestions engage the kind of second guessing of police conduct that courts have discouraged. In my view the police used reasonable and justified force in arresting both applicants.

[84] The applicant Mr. Chambers alleges that he still bears a scar or mark on his back inflicted by the use of the taser in the course of the arrest. Counsel tendered photographs of these alleged wounds. The marks are quite small and indistinct. Mr. Chambers did not testify and there was no medical evidence presented. There is no doubt that a taser was used in the course of the arrest. However, based on the meagre evidence presented and the passage of time I cannot determine whether the marks shown in the photographs taken in the summer of 2023 reflect injuries sustained in November 2020.

[85] The videos of the transport of both applicants from the scene of the arrest clearly show that they were in physical and emotional distress related to the tight handcuffs behind their backs. Unfortunately the arrests and transport occurred in the late afternoon. The prisoner wagon proceeded through a typical Toronto rush hour. That took a long time, with the consequent protracted pain and discomfort of the applicants.

[86] Courts cannot countenance the intentional and unjustified infliction of pain and suffering on persons in custody. A Charter violation may also be made out where the police are indifferent or grossly negligent as to the inflection of such pain and suffering on prisoners.

[87] I am not satisfied that the pain suffered by either applicant related to the tight handcuffs was related to any intentional or negligent conduct of the police. The circumstances justified that both applicants be handcuffed. In the course of this dynamic takedown, with active resistance by both applicants, the cuffs were simply too tight. In my view that is more a function of the police wanting to gain complete control of both applicants so that nobody was injured.

[88] For these reasons the applications related to the arrest and transport to the station are dismissed.

[89] I am grateful to all counsel for their helpful written and oral submissions and materials.

B. P. O’Marra Released: October 4, 2023