Court File and Parties

COURT FILE NO.: CR-23-90000515-0000 DATE: 20240502 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. DWAYNE VERNAL

BEFORE: MOLLOY J.

COUNSEL: R. Urion, for the Defendant/Applicant Laura Precup-Pop, for the Crown/Respondent

HEARD: May 2, 2024

Endorsement

Application under ss. 8, 9 and 24(2) of the Charter

Introduction

[1] Dwayne Vernal was arrested at Dundas Square in Toronto on June 11, 2022. The officers who made the arrest advised him that he was under arrest for assault with a weapon, assault, and making threats in connection with an incident the previous day. He was searched as an incident to arrest. On his person, police found 26.92 grams of methamphetamine, 6.78 grams of fentanyl, and a digital scale. He was then also charged with two counts of possession of those drugs for the purpose of trafficking. His trial on the drug charges is scheduled to commence in this court on June 10, 2024.

[2] Mr. Vernal challenges the lawfulness of his arrest and submits that the substances seized should be excluded from the evidence at trial.

The Evidence

[3] On June 10, 2022 officers in the Toronto Police Force (“TPS”) Rapid Response Unit received a call from dispatch with respect to a man with a knife at the Tim Horton’s near Dundas Square, at the corner of Dundas and Victoria Streets. Officers Pickett and Murphy responded to the call and met with the complainant inside the Tim Horton’s. Both officers testified before me on this application. Both were equipped with body-worn cameras. Their interactions with the complainant were recorded.

[4] The complainant described being approached by a stranger who repeatedly asked him “where are you from?” and also stated more than once, “this is my area.” At one point during this interaction the stranger pulled up his top and displayed a silver knife tucked into his jeans. The stranger told the complainant “if you come outside I will do something bad too you.” The complainant showed both officers two pictures on his phone that he had taken of this man as he stood outside the Tim Horton’s looking in. Officer Murphy recorded those images on his own phone and emailed them to 51 Division for circulation. The complainant indicated where he had last seen the man who assaulted him, which Officer Pickett testified was in front of 277 Victoria Street, a nearby supervised safe injection site.

[5] Meanwhile, Officer Pickett took a detailed statement from the complainant while taking extensive notes, which was also audio and video recorded on his body camera. Officer Murphy, with the assistance of Tim Horton’s staff, reviewed the cafe’s video surveillance camera footage, downloaded the relevant film clip, and also took still photos of the suspect from that footage.

[6] By then, additional officers had arrived. They searched the surrounding area but did not find the suspect.

[7] Both officers testified that they believed the complainant’s version of the events. He was clearly upset and shaken by the incident. He showed the officers the red mark on his face where the stranger hit him. He was emotional and fearful. I agree that this is apparent from the body-cam video. The footage from the surveillance camera is of a good quality, with clear images showing the suspect’s face and clothing, both front and back. The photographs taken by the complainant on his phone are clearly of the same man shown interacting with him on the Tim Horton’s video.

[8] The next day, both officers were on patrol together again. They testified that as they were approaching Dundas Square both of them saw a man they believed to be the suspect of the assault from the day before. He was standing in the same general area on Victoria Street where the suspect had last been seen the day before. He was wearing the same clothing as described by the complainant and seen on the Tim Horton’s video from the day before. Both officers believed him to be the person who had assaulted the complainant the day before. They therefore approached him and placed him under arrest for assault, assault with a weapon, and making threats.

[9] The person arrested is the accused, Dwayne Vernal. He was cuffed to the rear and searched. He had two plastic packages containing what appeared to be drugs on his person, along with a digital scale. He was advised that he was also being charged with possession for the purposes of trafficking in relation to those items.

The Test

[10] The Crown takes the position that this was an arrest, not merely a detention, and acknowledges that the higher standard with respect to having grounds for arrest must be met. This was a warrantless arrest, so the Crown bears the burden of demonstrating that it was reasonable. The officers advised Mr. Vernal that he was being arrested for assault with a weapon, assault, and making threats. Those are indictable offences. Therefore the officers had lawful authority to make an arrest without a warrant, provided the test for the required grounds is met.

[11] The grounds for arrest in these circumstances is conveniently summarized by the Supreme Court of Canada in R. v. Beaver, 2022 SCC 54 as follows (at para. 72):

The essential legal principles governing a warrantless arrest are settled:

1. A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint (R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Latimer, [1997] 1 S.C.R. 217, at para. 26; R. v. Tim, 2022 SCC 12, at para. 24).
2. In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 17). Subjective grounds for arrest are often established through the police officer’s testimony (see, for example, Storrey, at p. 251; Latimer, at para. 27; Tim, at para. 38). This requires the trial judge to evaluate the officer’s credibility, a finding that attracts particular deference on appeal (R. v. G.F., 2021 SCC 20, at para. 81; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 4).
3. The arresting officer’s subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer (Storrey, at pp. 250-51; Latimer, at para. 26; Tim, at para. 24).
4. Evidence based on the arresting officer’s training and experience should not be uncritically accepted, but neither should it be approached with “undue scepticism” (R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 64-65). Although the analysis is conducted from the perspective of a reasonable person “standing in the shoes of the [arresting] officer”, deference is not necessarily owed to their view of the circumstances because of their training or experience (R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45 and 47; MacKenzie, at para. 63). The arresting officer’s grounds for arrest must be more than a “hunc[h] or intuition” (Chehil, at para. 47).
5. In evaluating the objective grounds to arrest, courts must recognize that, “[o]ften, 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” (R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), at p. 750, per Doherty J.A.). Courts must also remember that “[d]etermining whether sufficient grounds exist to justify an exercise of police powers is not a ‘scientific or metaphysical exercise’, but one that calls for the application of ‘[c]ommon sense, flexibility, and practical everyday experience’” (R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 22, per Fairburn J.A. (as she then was), citing MacKenzie, at para. 73).
6. “Reasonable and probable grounds” is a higher standard than “reasonable suspicion”. Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime (Chehil, at para. 27; R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166). At the same time, police do not require a prima facie case for conviction before making an arrest (Storrey, at p. 251; Shepherd, at para. 23; Tim, at para. 24). Nor do the police need to establish that the offence was committed on a balance of probabilities (Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; see also R. v. Henareh, 2017 BCCA 7, at para. 39; R. v. Loewen, 2010 ABCA 255, 490 A.R. 72, at para. 18). Instead, the reasonable and probable grounds standard requires “a reasonable belief that an individual is connected to the offence” (MacKenzie, at para. 74 (emphasis deleted); Debot, at p. 1166). A reasonable belief exists when “there is an objective basis for the belief which is based on compelling and credible information” (Mugesera, at para. 114; see also R. v. Al Askari, 2021 ABCA 204, 28 Alta. L.R. (7th) 129, at para. 25; R. v. Omeasoo, 2019 MBCA 43, [2019] 6 W.W.R. 280, at para. 30; R. v. Summers, 2019 NLCA 11, 4 C.A.N.L.R. 156, at para. 21). The police are also not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest (Chehil, at para. 34; Shepherd, at para. 23; R. v. Ha, 2018 ABCA 233, 71 Alta. L.R. (6th) 46, at para. 34; R. v. MacCannell, 2014 BCCA 254, 359 B.C.A.C. 1, at paras. 44-45; R. v. Rezansoff, 2014 SKCA 80, 442 Sask. R. 1, at para. 28; E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (3rd ed. (loose-leaf)), at § 5:40).
7. The police cannot rely on evidence discovered after the arrest to justify the subjective or objective grounds for arrest (R. v. Biron, [1976] 2 S.C.R. 56, at p. 72; R. v. Brayton, 2021 ABCA 316, 33 Alta. L.R. (7th) 241, at para. 43; Ha, at paras. 20-23; R. v. Montgomery, 2009 BCCA 41, 265 B.C.A.C. 284, at para. 27; Ewaschuk, at § 5:40).
8. When a police officer orders another officer to make an arrest, the police officer who directed the arrest must have had reasonable and probable grounds. It is immaterial whether the officer who makes the arrest personally had reasonable and probable grounds (Debot, at pp. 1166-67).

Analysis

[12] Both officers decided to arrest the accused. Both believed him to be the man who had assaulted the complainant at the Tim Horton’s the day before, based on the description provided by the complainant and the images they had seen. They both noted that this man was wearing exactly the same clothing as the suspect from the previous day’s assault and was in the same area as the suspect had last been seen.

[13] The defence concedes that the officers subjectively believed that Mr. Vernal was the man who had assaulted the complainant at Tim Horton’s the day before. The defence also concedes that if the arrest was lawful, the search as an incident to that arrest was also lawful. The central issue, therefore, is whether there were objective grounds to support the arrest.

[14] Having viewed the Tim Horton’s video and the photographs taken of the suspect outside Tim Horton’s there is no question that this is the same man. Counsel for Mr. Vernal argued that the photographs are not clear because they are taken through a window and the suspect’s face is partially obscured by lettering on the window. Those two points are true. However, the window does not obscure the image at all and the lettering only does so to a small degree. There are two photographs and, combining the two, all facial features and the distinctive nature of the hoodie are clearly visible. When this is combined with the still photos and video from the surveillance camera, an extremely detailed image of the suspect is available.

[15] Mr. Vernal was wearing exactly the same clothing as the suspect in the assault from the day before: a black Adidas hoodie with white strings and a distinctive pattern of four logos down the left side; black running shoes with three white stripes; and blue jeans. He was also wearing the same size, colour, and style of backpack with a distinctive round emblem on its face. Taken individually, these may be relatively commonplace items. However, the combined effect of every single item of clothing being identical to the images of the suspect is powerful.

[16] When arrested, Mr. Vernal was standing in front of the very same spot where he was last seen the previous day. One of the things he had said to the complainant in his angry and threatening confrontation was “this is my area.” I agree with counsel’s submission that these words could mean a lot of things. However, they are a relevant factor to take into account when looking at the whole constellation of surrounding circumstances as noted by the Supreme Court in Beaver at para. 72 (3).

[17] The facial features, facial hair, hair length and style, approximate age, and build of the suspect are also a direct match with Mr. Vernal.

[18] Based on the totality of the evidence available to the officers at the time, the test for an objective belief in reasonable and probable grounds to arrest is easily met, and indeed far exceeded in this case.

Conclusion

[19] This was a lawful arrest. There were both subjective and objective reasonable and probable grounds to arrest Mr. Vernal for the assault with a weapon and other charges from the previous day. The search incident to that arrest is conceded to be lawful and the evidence was lawfully seized. It is admissible at trial. The application is dismissed.

Molloy J. Date: May 2, 2024