COURT FILE NO.: CR-24-90000614 DATE: 20241205
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King – and – Evan Mitchell Defendant
Counsel: Elise Mastrorillo, for the Crown Gabriel Gross-Stein, for the Defendant
HEARD: October 7-10, 2024
REASONS FOR JUDGMENT
NISHIKAWA J.
Overview and Factual Background
[1] In the early morning hours of May 7, 2022, police received a 911 call from a woman who said that she had been assaulted and robbed in the penthouse unit at 15 Iceboat Terrace. She provided a description of the alleged assailants, a group of five men, one of whom was Black, 26-30 years old and wearing a brown sweater. The complainant told police that the men had left the unit and made their way to the street.
[2] Approximately five minutes later, two officers of the Toronto Police Service (TPS) arrived in the area. They observed a vehicle parked on a nearby street with two Black men in the front seat. One officer arrested the passenger, Robert Davis, in connection with the alleged robbery. The other officer detained the Defendant, Evan Mitchell, who was in the driver’s seat of the vehicle.
[3] As a result of Mr. Davis’s arrest, the officers searched the vehicle and located a loaded Glock firearm with a black magazine containing three rounds of ammunition, a black balaclava face mask, pepper spray, and bundles of cash in U.S. dollars.
[4] Both Mr. Mitchell and Mr. Davis were then arrested for possession of a prohibited weapon and given their rights to counsel.
[5] The vehicle was sealed and later towed to 14 Division. Police obtained a search warrant and executed the search warrant later that night. In the trunk of the vehicle, police located 312.67 grams of cocaine, 2.67 grams of fentanyl, and 0.25 grams of MDMA, among other items.
[6] The Defendant is charged with multiple counts of possession for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and firearm related charges under ss. 91(2), 95(1), 92(2), 94(1), 108(1)(b), and 117.01(1) of the Criminal Code, R.S.C. 1985 c. C-46 (the “Code”). He is also charged with possession of proceeds of crime under s. 355(b) of the Code.
[7] The Defendant brings an application under the Canadian Charter of Rights and Freedoms (the “Charter”) to exclude from evidence the items seized from his vehicle. Mr. Mitchell argues that the police lacked reasonable and probable grounds to arrest Mr. Davis and that he (Mr. Mitchell) was unlawfully detained. The Defendant further argues that because Mr. Davis was unlawfully arrested, the search of the vehicle was not a lawful search incident to arrest. The Defendant argues that as a result of the breaches of ss. 8 and 9 of the Charter, all the evidence found in the vehicle should be excluded pursuant to s. 24(2) of the Charter.
[8] On the first day of the hearing, Mr. Mitchell re-elected to be tried by judge-alone. The parties then agreed to have the Charter application and trial proceed before me as a blended proceeding. The defence conceded that if the Charter arguments were unsuccessful, Mr. Mitchell would be found guilty of the substantive charges, with the exception of Count 7, possession for the purposes of trafficking in fentanyl.
Issues
[9] The issues raised in this proceeding are as follows:
(a) Was Mr. Davis arbitrarily arrested in breach of his rights under s. 9 of the Charter? (b) Was Mr. Mitchell unlawfully detained in breach of his rights under s. 9 of the Charter? (c) Was the warrantless search of the vehicle in breach of Mr. Mitchell’s rights under s. 8 of the Charter? (d) If Mr. Davis and/or Mr. Mitchell’s Charter rights were breached, should the evidence seized from the vehicle be excluded under s. 24(2) of the Charter? (e) Has the Crown proven the offence of possession for the purposes of trafficking (fentanyl) beyond a reasonable doubt?
[10] The Crown does not challenge Mr. Mitchell’s standing to bring this application because he had a reasonable expectation of privacy in the vehicle that was searched, which was registered to him.
The Evidence
The Arrest of Mr. Davis
[11] On May 7, 2022, PC Brett Paquette and PC Lewis McVey were on general patrol in the same scout car. PC Paquette was driving. At 5:09 a.m., they received information from dispatch that a female had called 911 screaming and crying. She said that she had been choked and that the assailant took her diamond necklace and shoes. She told police that the incident took place in the penthouse unit at 15 Iceboat Terrace and that no weapons were used. When asked for a description of the assailant, the complainant advised the 911 operator that five men were involved and that one was a Black man between 26-30 years old, wearing a brown sweater.
[12] PC Paquette testified that he received information from dispatch that the five men had left the unit and made their way down the stairs to the street. PC Paquette also heard that the men were in an unknown vehicle on the side of a one-way street. The complainant, who remained on the phone with the 911 operator as the officers asked questions, was unable to identify what type of vehicle the men arrived in or where their vehicle was parked. The call was given the highest priority, otherwise known as a “hot shot”.
[13] PC Paquette attempted to get to 15 Iceboat Terrace via Dan Leckie Way. However, he was unable to get to the address because the street was blocked by construction. He turned around and then proceeded east on Fort York Boulevard and north on another street, Capreol Court, a short street running north-south between Iceboat Terrace and Fort York Boulevard.
[14] PCs Paquette and McVey arrived in the area at approximately 5:12 a.m. When they arrived, they sought more information from dispatch, asking whether they should attend the east or west side of the building, and for further descriptions of the suspects and vehicle. They did not receive further information at that time.
[15] PC Paquette testified that while travelling northbound on Capreol Court, PC McVey advised that he saw two men in a vehicle parked on the side of the street. The vehicle was a silver Audi A7 with the licence plate CFEK 441 (the “Audi”). Mr. Mitchell concedes that he was the registered owner of the Audi.
[16] PC Paquette testified that he then made a U-turn and pulled up beside the vehicle at a slight angle so that they could see into the vehicle. PC Paquette testified that the man in the passenger seat was wearing a brown sweater and that the man in the driver’s seat was wearing a pink sweater. He believed they were both around 30 years old. PC Paquette testified that he was not able to see if anyone was in the back seat of the Audi.
[17] PC McVey testified that as they passed the Audi, he queried the licence plate. After PC Paquette stopped the scout car on an angle, slightly in front of the Audi, he was able to look into the vehicle to see the occupants. PC McVey testified that he saw two Black males in the front seat, who he estimated to be in their late 20s or early 30s. He saw that the passenger was wearing a brown sweater. PC McVey could not see if anyone was sitting in the back seat. PC McVey testified that PC Paquette then reversed the scout car to be positioned side-by-side with the Audi.
[18] At 5:14 a.m., PC Paquette exited the scout car. He testified that he formed the intention to arrest the passenger, Mr. Davis, after he observed him but before he got out of his car. He estimated that it took him approximately five seconds to make the decision. PC Paquette testified that he decided to arrest Mr. Davis because he believed he matched the description of the assailant in that he was a Black man, 26-30 years old, wearing a brown sweater, and he was located near 15 Iceboat Terrace minutes after the incident.
[19] PC Paquette went to the front passenger door of the vehicle, which was open. He told Mr. Davis to put his hands up and he assisted him out of the car. He then handcuffed Mr. Davis. As PC Paquette was putting handcuffs on Mr. Davis, another officer, PC Barbosa arrived on scene. PC Barbosa told Mr. Davis that he was under arrest. PC Paquette told Mr. Davis that he was under arrest for robbery. He then conducted a frisk search but did not locate anything of significance.
[20] At 5:19 a.m., PC Paquette walked Mr. Davis to PC Barbosa’s scout car and placed him in the backseat. He read his rights to counsel and Mr. Davis said that he wanted to call his lawyer. PC Paquette described Mr. Davis as cooperative, but that he smelled strongly of marijuana and was unsteady on his feet. Mr. Davis asked multiple times why he was being arrested.
[21] On cross-examination, PC Paquette was asked about whether he and PC McVey had a conversation about turning the car around to observe the men in the Audi and about arresting Mr. Davis before they got out of their vehicle. PC Paquette did not recall discussing either decision with PC McVey, who was senior to him. PC McVey testified that he and PC Paquette may have discussed turning the car around or arresting the passenger, but he did not recall what either of them said.
[22] PC Paquette admitted that certain circumstances differed from the information that had been relayed by dispatch. First, when he shined his flashlight into the Audi, he saw that there were only two men, and not five men. Second, Capreol Court, where the Audi was parked, was not a one-way street.
[23] On the issue of the colour of Mr. Davis’s sweater, PC Paquette refused to admit that his sweater was beige or tan, as opposed to brown. PC Paquette admitted that he testified at the preliminary inquiry that Mr. Davis was wearing a brown sweater. At trial, he testified that after reviewing the body worn camera recording, he would describe the hoodie that Mr. Davis was wearing as light brown. On cross-examination, PC Paquette admitted that he would have arrested any Black male in the area who appeared to be 26-30 years old and was wearing a brown sweater. He denied that unconscious bias played any role in his arrest of Mr. Davis.
The Detention of Mr. Mitchell
[24] At approximately the same time as PC Paquette, PC McVey exited the scout car and approached the driver side door of the Audi. PC McVey testified that he intended to detain the driver, Mr. Mitchell, in respect of the robbery investigation. The driver side door was also open. PC McVey issued commands to Mr. Mitchell to get out of the car and show his hands. Mr. Mitchell came out of the vehicle and faced away from PC McVey, who then handcuffed him. PC McVey advised Mr. Mitchell that he was being detained in relation to a robbery investigation. He described Mr. Mitchell as relatively cooperative.
[25] At 5:15 a.m., PC McVey conducted a protective pat-down search of Mr. Mitchell. During the course of the pat-down search, he went into Mr. Mitchell’s pockets. He located cards, cash and cigarettes, which he put back in Mr. Mitchell’s pockets. A 5:17 a.m., PC McVey informed Mr. Mitchell of his rights to counsel and placed him in the scout car.
[26] PC McVey testified that he decided to detain Mr. Mitchell in connection with the robbery investigation because Mr. Mitchell was in the company of a male who the matched the description provided by the complainant, he was located in the area within minutes of the radio call in close proximity to the location of the incident, and because until that point, no other pedestrians had been observed. PC McVey also testified that he believed that Mr. Mitchell matched the complainant’s description of the group, which he understood to be a group of five Black men, between 26-30 years of age.
[27] On cross-examination, an audio-recording of the radio call was played, and PC McVey admitted that the description of male, Black, 26-30, wearing a brown sweater pertained to one of the men in the group and not to the entire group. PC McVey further admitted that when dispatch confirmed that the group consisted of five Black men, he did not receive that information because he had already exited the scout car. He testified, however, that at the time, he had understood the description, other than the reference to a brown sweater, to apply to the whole group.
[28] PC McVey also admitted that because he had only detained Mr. Mitchell and had not arrested him, searching his pockets went beyond the scope of his legal authority. PC McVey testified that he had no explanation for exceeding his authority because he had intended all along to detain Mr. Mitchell and he knew that the was only entitled to conduct a pat-down search. PC McVey stated that all he could say was that things happened very quickly and that by the time he completed the search, he realized that he had gone beyond scope. He denied that he was looking for the stolen necklace when he went into Mr. Mitchell’s pockets.
[29] PC McVey was cross-examined about the “aggressive” manner in which Mr. Mitchell was detained and the fact that it looked very much like an arrest. PC McVey testified that the manner of detention depends on the circumstances and available information. In this case, he had received information of a violent offence, although there was no indication that weapons were involved. In addition, at the time, there were two suspects and two officers, giving rise to a risk to officer safety. PC McVey testified that there was a possibility that the other three men were still in the area. PC McVey testified that when he detained Mr. Mitchell, he did not know what, if any, his involvement was, so the “fair thing” to do was to detain him. On the body-worn camera recording, PC McVey can be heard explaining to Mr. Mitchell that he was detained in connection with a robbery investigation and if everything was cleared up, he would be released.
Search of the Vehicle
[30] PC McVey testified that he returned to the Audi to look for evidence of the robbery, specifically, the complainant’s necklace and shoes. PC McVey began searching the vehicle at 5:21 a.m. PCs Paquette and Barbosa were also searching the vehicle. PC Paquette located a black balaclava and documents in the glove box of the Audi. In the backseat, PC Barbosa located a small pepper spray and bundles of cash.
[31] PC McVey testified that he began by searching the driver’s side door and did not locate anything. He then looked under the driver’s seat and observed a firearm wedged between the driver’s seat and the floor of the vehicle. PC McVey testified that he located the gun within one minute of starting the search and did not have to move anything to see it. At 5:22 a.m., he retrieved the firearm, determined that it was real and then proved it safe.
[32] At 5:23 a.m., PC McVey advised Mr. Mitchell that he was under arrest for possession of a firearm in a motor vehicle and gave him his rights to counsel. PC McVey testified that he initially had some difficulty verifying that Mr. Mitchell understood. However, Mr. Mitchell provided his lawyer’s name. PC McVey testified that he looked up the name that Mr. Mitchell gave him on the in-car computer system. This is visible on the body-worn camera recording.
[33] PC McVey then cautioned Mr. Mitchell and took him out of the scout car to search him again. PC McVey testified that because Mr. Mitchell was now under arrest and would be going to the police station, he wanted to remove everything from his pockets. PC McVey waited for back-up to arrive to secure the Audi and then left to take Mr. Mitchell to 14 Division.
[34] PC Barbosa advised Mr. Davis that he was under arrest for possession of a firearm and advised him of his rights to counsel.
The Search Warrant
[35] TPS officers remained on scene with the Audi until 7:27 a.m. when it was towed to 14 Division. Detective Constable Greg Fraracci of the TPS applied for a search warrant for the Audi, which was granted later that evening.
[36] The Information to Obtain the search warrant (“ITO”) included further information obtained from interviewing the complainant, as well as from Versadex and other database checks. [1] The complainant provided a detailed description of the male who assaulted her, as well as an image from her phone. The image appeared to match the booking photo of Mr. Mitchell and his photo on his driver’s licence. The items to be searched for included a silver necklace, documents relating to the ownership of the vehicle, and firearms and ammunition.
[37] The search warrant was executed by TPS officers after 10 p.m. on May 7, 2022. In the Audi, police located vehicle insurance and various other documents in the name of Evan Mitchell. They also located $1,600 in U.S. currency, sorted into five stacks; a balaclava face mask; and a black iPhone. In the trunk of the Audi, they found six balaclava face masks, a mask with a nun face and a false-bottom can. There were two backpacks in the trunk containing the following items:
- 312.67 grams of cocaine (separated into three plastic bags);
- 2.67 grams of fentanyl;
- 0.25 grams of MDMA;
- 282.04 grams of phenacetin/dimethylsulphone (cutting agents);
- 8.64 grams of boric acid;
- An extended magazine clip;
- A digital scale;
- Torn plastic tied in a knot;
- Small plastic ‘dime’ bags; and
- Pill bottles in the name of the Defendant.
Analysis
Was Mr. Davis Arbitrarily Arrested in Breach of His Section 9 Charter Rights?
[38] The Defendant argues that the police lacked reasonable and probable grounds to arrest Mr. Davis because he did not match the description provided by the complainant, which was vague and generic.
[39] The Crown takes the position that the arrest was lawful because, based on the information available to him, PC Paquette had a subjective belief that Mr. Davis had committed an offence and his belief was objectively reasonable.
The Applicable Principles
[40] Section 9 of the Charter states that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” The purpose of s. 9 is to protect the individual from unjustified state interference. Section 9 limits the state’s ability to impose intimidating and coercive pressure on citizens without justification: R. v. Le, 2019 SCC 34, at para. 25.
[41] Section 495(1)(a) of the Criminal Code allows a peace officer to make an arrest without a warrant if they believe, on reasonable grounds, that the person has committed or is about to commit an indictable offence.
[42] In order for an arrest to be lawful, police must have reasonable grounds to believe that an offence is being or has been committed. The reasonable grounds inquiry has both a subjective and objective component. The officer must hold an honest belief that the person committed an offence. At the second step, it must be objectively established that reasonable and probable grounds did in fact exist. This is based on the totality of the circumstances reasonably known to the arresting officer as seen from the perspective of a reasonable person with comparable knowledge, training and experience: R. v. Tim, 2022 SCC 12, at para. 24. “The standard is met at the point where credibly-based probability replaces suspicion. Of course, the totality of the circumstances is to be considered.”: R. v. Dhillon, 2016 ONCA 308, at para. 25; R. v. Beaver, 2022 SCC 54, at para. 72.
[43] “Reasonable and probable grounds” is a higher standard than “reasonable suspicion”. It requires a reasonable belief that an individual is connected to the offence, which exists when there is an objective basis for the belief which is based on compelling and credible information: Beaver, at para. 72.
[44] Where the defendant challenges a warrantless search incident to arrest on the basis that the arrest was unlawful, the Crown carries the burden on both of the overlapping ss. 8 and 9 claims and must prove that the arrest was legal: R. v. Gerson-Foster, 2019 ONCA 405, at para. 75.
Findings
[45] The defence argues that the arrest of Mr. Davis was precipitous and lacking grounds because the police had only a vague and generic description of the perpetrator. In addition, the defence submits that none of the descriptors provided by the complainant matched because: (i) Mr. Davis was wearing a beige hoodie, as opposed to a brown sweater; (ii) there were only two people in the vehicle, as opposed to five; and (iii) the street where the vehicle was parked was not a one-way street.
[46] In my view, assessing the totality of the circumstances, PC Paquette had reasonable and probable grounds to arrest Mr. Davis. He had an honest belief that Mr. Davis committed the robbery and, in the circumstances known to him at the time, the belief was objectively reasonable.
[47] I found PC Paquette to be a credible witness. He testified in a careful and forthright manner. His evidence regarding his observations and belief that he had reasonable grounds was not significantly undermined on cross-examination. Where his testimony was inconsistent with his evidence at the preliminary inquiry, it was on matters of limited relevance, for example, the demographics of the area around Fort York Boulevard. In my view, PC Paquette was being candid when he testified that he could not estimate the percentage of young people living in the area around Iceboat Terrace. Moreover, at the preliminary inquiry, PC Paquette had been asked about the demographics of Fort York and Liberty Village, which is further to the west than 15 Iceboat Terrace.
[48] I accept PC Paquette’s testimony that he believed that Mr. Davis was involved in the robbery because he matched the description provided by the complainant and was in the immediate vicinity of the location of the incident, shortly after the incident took place.
[49] The defence points to PC Paquette’s testimony that he would have arrested any Black male between the ages of 26-30 wearing a brown sweater in the area that night to argue that PC Paquette did not have an honest belief that Mr. Davis was involved in the robbery but, rather, was operating under an unconscious bias. However, a Charter breach is determined not on the basis of what police officers intend to do or think they can do, but on what they actually did at the time the arrest takes place: R. v. Fyfe, 2023 ONCA 715, at para. 54. When PC Paquette made the decision to arrest Mr. Davis, he had the following information:
- A woman called 911 at 5:07 a.m., stating that she had been assaulted and robbed;
- The assault occurred in the penthouse unit at 15 Iceboat Terrace;
- The incident involved five men;
- One of the men was Black, 26-30 years old, and wearing a brown sweater;
- They made their way to street level using the stairs;
- The men were associated with a vehicle; and
- They were on the side of a one-way street.
[50] PC Paquette testified that the Audi was stopped next to 18 Capreol Court, around the corner and approximately 150-200 metres away from 15 Iceboat Terrace. PC Paquette was aware that the 911 call was made to dispatch at 5:07 a.m. and that the five men took the stairs to the main floor, which meant that it would take longer for them to exit the building than if they had taken an elevator. PC Paquette pulled up next to the Audi at 5:14 a.m., just seven minutes after the 911 call had been made and five minutes after the group of men were reported to have left the building.
[51] In addition, while the description provided by the complainant was not very specific, there were very few people on the street in the area at that hour. PC Paquette testified that he did not recall seeing anyone on the street while he was driving to 15 Iceboat Terrace and that at most, there was one or two individuals. PC McVey also testified that he did not see anyone on the street while they were driving to the location. On the body-worn camera footage, a couple of pedestrians are observed walking by at 5:18 and 5:19 a.m., after Mr. Davis was arrested. This does not mean that PC Paquette and PC McVey’s observations were incorrect. Even after that time, only a handful of people are visible on the street.
[52] I agree with the defence that the police and the courts must be alert to the potential effect of unconscious bias or racial profiling, especially where only a vague or general description of a suspect is given. Racial profiling is relevant under s. 9 when determining whether the detention was arbitrary because a detention based on racial profiling is not a detention based on reasonable suspicion: R. v. Le, 2019 SCC 34, at para. 78.
[53] In this case, however, there were very few people out at the time, shortly after 5:00 a.m. on a Saturday morning. Although the description provided by the complainant was not very detailed, within the range of people who were in the area, it was not unreasonable for PC Paquette to believe that Mr. Davis matched the complainant’s description. He was Black, around 26-30 years old and wearing a top that could reasonably be described as a brown sweater. He was in a vehicle that was on the side of the road, very near to where the incident had occurred, minutes after the incident was reported. Timing was a significant factor. The fact that the doors to the car were open supports that Mr. Davis and Mr. Mitchell had left 15 Iceboat Terrace, come down the stairs and just entered the Audi.
[54] In addition, it was not unreasonable to perceive Mr. Davis as wearing a brown sweater. On the body worn camera footage, Mr. Davis’s hoodie appears to be tan or light brown. The colour appears lighter on the booking hall video, where the lighting was very bright. When the officers first approached the Audi, however, it was dark outside, which would cause the colour to appear darker. Had Mr. Davis been wearing an entirely different colour sweater, such as blue or green, it would not have been reasonable to find that he matched the description provided by the complainant. However, Mr. Davis was wearing a shade of brown.
[55] In addition, in my view, the fact that certain circumstances differed from other information provided by the complainant did not substantially undermine the grounds for arresting Mr. Davis. When PCs Paquette and McVey first approached the Audi, they could only see the two men in the front seat. Because the vehicle had heavily tinted windows, they did not know until they exited the scout car and shone their flashlights into the Audi that there was no one in the backseat. The officers did not have to confirm that there were five men in the vehicle before proceeding to arrest Mr. Davis. In any event, as PC Paquette testified, it would not have been unusual for some members of the group to go their separate ways after the commission of an offence.
[56] Further, the fact that the Audi was not on a one-way street as described by the complainant did not undermine the officers’ grounds. The complainant, who was described as screaming and crying when she made the 911 call, could easily have been mistaken when describing the street as a one-way street. Based on the evidence of both officers, none of the nearby streets were one-way streets. Fort York Boulevard runs in both directions, but the lanes are separated by a boulevard. It would be unusual to describe it as a one-way street. The officers were both familiar with the area. It was open to PC Paquette to discount this detail when determining whether there were reasonable and probable grounds to arrest Mr. Davis.
[57] Finally, as noted above, whether the police had reasonable grounds to arrest is based on the totality of the circumstances reasonably known to the arresting officer as seen from the perspective of a reasonable person with comparable knowledge, training and experience. At the time of the arrest, PC Paquette had only been a police officer for two years. Although PC McVey had significantly more experience, both officers testified that PC Paquette made the decision to arrest Mr. Davis. PC McVey did not direct him to do so.
[58] Based on the foregoing, I find that PC Paquette had an honest belief that Mr. Davis had committed the robbery. Based on the totality of the circumstances, his belief was objectively reasonable. The police therefore had reasonable and probable grounds to arrest Mr. Davis.
Was the Detention of the Defendant in Breach of his Section 9 Charter rights?
[59] The Defendant also takes the position that his rights under s. 9 of the Charter were breached when he was unlawfully detained at the roadside, handcuffed, and placed in the rear of a police cruiser as a result of Mr. Davis’s arrest, which they argue was unlawful. The defence further argues that the detention of Mr. Mitchell was a de facto arrest because he was handcuffed, searched and put into the scout car.
[60] As discussed above, I have found above that Mr. Davis’s arrest was lawful. At the hearing, the defence conceded that if Mr. Davis was lawfully arrested, it would be difficult to find that Mr. Mitchell was unlawfully detained. For the reasons given below, I agree.
The Applicable Principles
[61] Police are entitled to detain a person for investigative purposes where they have reasonable grounds to suspect that the individual is connected to a particular criminal activity and that such a detention is reasonably necessary in the circumstances: R. v. Mann, 2004 SCC 52, at para. 45. In the context of detention, “reasonable grounds” is synonymous with reasonable suspicion.
[62] Where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. An investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police: Mann, at para. 45.
Findings
[63] As discussed above, PC Paquette had reasonable and probable grounds to arrest Mr. Davis. As a result, PC McVey had reasonable grounds to suspect that Mr. Mitchell was connected to the robbery. Mr. Mitchell was with Mr. Davis, who had just been arrested in connection with the robbery that had taken place around the corner, less than 10 minutes earlier. The complainant had advised police that five men were involved. It was not unreasonable for PC McVey to suspect that Mr. Mitchell was one of the other four men.
[64] In the context of reasonable and probable grounds for arrest, the Court of Appeal has held that “facts” relied upon by the officer need not be true. Reasonable grounds can be based on an officer’s reasonable belief in certain facts even if it turns out that the belief is mistaken: R. v. Gerson-Foster, 2019 ONCA 405, at para. 79. While PC McVey’s interpretation of the information received from dispatch was mistaken, in that he understood that all five men were Black and between 26-30 years old, this interpretation was not unreasonable, based on a review of the text of the ICAD transmissions, as follows:
5:10:27: SAYS IT WAS 5 MLS THAT ROBBED HER 5:10:55: M/B…26-30S…WRG BROWN SWEATER
[65] Moreover, it was reasonably necessary to detain Mr. Mitchell. The complainant reported that the perpetrator choked her. While there was no report of any weapons, police were justified in exercising caution. There were also still three individuals outstanding.
[66] While the defence argued that Mr. Mitchell’s detention was a de facto arrest, this argument was made in the context of a s. 24(2) analysis predicated on the unlawful arrest of Mr. Davis and, consequently, the unlawful search of Mr. Mitchell’s vehicle. The defence conceded that a breach of Mr. Mitchell’s s. 9 rights alone would not lead to the exclusion of evidence. In any event, Mr. Mitchell was only briefly detained until the firearm was located in the vehicle and he was arrested and given his rights to counsel. Mr. Mitchell was detained and put in the scout car at 5:15 a.m. The firearm was located at 5:21 a.m. and Mr. Mitchell was arrested and informed of his right to counsel at 5:23 a.m.
[67] In arresting Mr. Davis and detaining Mr. Mitchell, the officers were reasonably diligent in complying with their obligations under the Charter, while investigating a violent offence that had been given the highest priority. They sought more detailed descriptions of the perpetrators and vehicle their way to the location of the incident but no further information was forthcoming at the time. The individual who was believed to match the description, Mr. Davis, was arrested, but the other individual, Mr. Mitchell, was only detained because there were insufficient grounds to arrest him at the time. On the body-worn camera recordings, both Mr. Davis and Mr. Mitchell asked multiple times why they had been arrested or detained. The officers explained the reason and informed both of their rights to counsel at the earliest opportunity.
Was the Warrantless Search of the Vehicle in Breach of the Defendant’s Section 8 Charter Rights?
[68] The Defendant submits that the police breached his rights under s. 8 of the Charter when they searched his vehicle incident to Mr. Davis’s arrest.
[69] The Crown submits that the search of the vehicle was a lawful search incident to arrest.
The Applicable Principles
[70] Section 8 of the Charter states that “everyone has the right against unlawful search and seizure.” The purpose of s. 8 is to "protect individuals from unjustified state intrusions upon their privacy" which requires preventing unjustified searches before they happen through pre-authorization: Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at p. 160.
[71] A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278.
[72] In respect of s. 8 of the Charter, once the Defendant establishes that the search was without a warrant, the onus shifts to the Crown to demonstrate that the search was reasonable and justified in the circumstances. A warrantless search is presumptively unreasonable. As such, the Crown must rebut the presumption by showing that the search was a valid search incident to arrest, which requires that:
(i) the individual has been lawfully arrested; (ii) the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose connected to the arrest; and (iii) the search is conducted reasonably.
R. v. Stairs, 2022 SCC 11, at para. 35.
[73] The case law has identified three valid law enforcement purposes: (i) police and public safety, (ii) preventing the destruction of evidence, and (iii) the discovery of evidence that may be used at trial: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 75. Those categories, however, are not closed: R. v. Sureskumar, 2023 ONCA 705, at para. 11.
[74] The police’s law enforcement purpose must be subjectively connected to the arrest, and the officer’s belief that the purpose will be served by the search must be objectively reasonable: Stairs, at para. 37.
[75] For a search incident to arrest to be lawful, police need not have reasonable and probable grounds. However, they “must have some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable”: R. v. Caslake, [1998] 1 S.C.R. 51, at para. 25. The important consideration is the link between the location and purpose of the search and the grounds for the arrest: R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 49.
Findings
[76] I have found above that the police had reasonable and probable grounds to arrest Mr. Davis.
[77] In my view, the roadside search of the Audi was truly incidental to the arrest in the sense that it was for a valid law enforcement purpose connected to the arrest. PC McVey testified that he first searched the door of the vehicle to see if he could find the stolen necklace and shoes. On the body-worn camera recording, the officers can be heard searching for shoes and a necklace with a letter “T” and a diamond. Soon after the search was initiated, he located the firearm under the driver’s seat. Moreover, the search was conducted reasonably. After PC McVey located the firearm, the officers sealed the vehicle and sought a search warrant. They did not attempt to search the trunk of the vehicle.
[78] Although the search was warrantless, the Crown has demonstrated that the search was reasonable and justified in the circumstances. Accordingly, the search was not in breach of Mr. Mitchell’s s. 8 rights.
[79] As noted above, PC McVey admitted that when he conducted the pat-down search of Mr. Mitchell, he went into his pockets, which exceeded the scope of his authority to conduct a search incident to an investigate detention. Upon realizing his error, PC McVey returned the items to Mr. Mitchell’s pockets. This search was a breach of Mr. Mitchell’s rights under s. 8 of the Charter. However, no evidence was located pursuant to that search and the defence does not argue that any evidence should be excluded on the basis of this breach. Mr. Mitchell was arrested minutes later, after the firearm was located. PC McVey then searched Mr. Mitchell’s pockets again and removed the items, because he would be taken to the station. This was a lawful search incident to arrest.
[80] The defence argued that if the search of the vehicle was not a lawful search incident to arrest, references to the firearm and vehicle would have to be excised from the ITO, which would lead to a finding that the search warrant could not have issued.
[81] Given that I have found that the search of the vehicle was lawful, no excision is necessary. There is no question that the search warrant could have issued.
Should the Evidence be Excluded?
[82] Based on my finding that the search of the vehicle was not in breach of Mr. Mitchell’s Charter rights, it is unnecessary to determine whether the evidence should be excluded pursuant to s. 24(2).
[83] For the foregoing reasons, the application is dismissed.
Has the Crown Proven the Offence of Possession for the Purposes of Trafficking Beyond a Reasonable Doubt?
[84] The defence conceded that in the event that the Charter application was unsuccessful and the evidence was not excluded, convictions would follow on all of the charges with the exception of Count 7, possession of a controlled substance for the purpose of trafficking (fentanyl) under s. 5(2) of the CDSA.
[85] The Defendant admitted the following facts, among others, in an Agreed Statement of Facts: (i) the nature, quantity and location of the items seized; (ii) that Mr. Mitchell was not the holder of an authorization or licence permitting possession of the Glock handgun located in the Audi; (iii) that the serial number on the Glock handgun was defaced, altered or removed; and (iv) that at the time, Mr. Mitchell was bound by an order prohibiting him from possessing any firearm, prohibited weapon, restricted weapon or prohibited device. The admitted facts establish Mr. Mitchell’s guilt beyond a reasonable doubt of the offences charged in Counts 1, 2, 3, 4, 5, 6 and 8.
[86] In respect of Count 7, the defence takes the position that the Crown has failed to demonstrate beyond a reasonable doubt that Mr. Mitchell was in possession of fentanyl for the purposes of trafficking, given the amount of fentanyl seized (2.67 grams) and the absence of expert evidence.
[87] The Crown submits that the only reasonable inference is that Mr. Mitchell was in possession of the fentanyl for the purposes of trafficking because of: (i) the other items in the backpack; (ii) the lack of any indica of personal use; and (iii) Mr. Mitchell’s concession that he possessed the cocaine for the purposes of trafficking.
The Applicable Principles
[88] To prove the offence of possession for the purposes of trafficking, the Crown must prove each of the following essential elements of the offence beyond a reasonable doubt:
(a) The substance was a controlled substance; (b) The Defendant was in possession of the substance; (c) The Defendant knew the nature of the substance; and (d) The Defendant possessed the substance for the purpose of trafficking.
[89] Only the last element is at issue in this case.
Findings
[90] The police found 2.67 grams of fentanyl in brown ripped plastic in the internal front pocket of a backpack located in the trunk of the Audi. Also in the backpack were a variety of dime bags and packaging.
[91] Where the Crown’s case rests on circumstantial evidence, the question is whether the trier of fact could reasonably be satisfied that the accused’s guilt is the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55. Reasonable alternative inferences to guilt need not be based on proven facts; they need only be plausible based on logic and experience: Villaroman, at paras. 35-37.
[92] In my view, the evidence does not lead to the conclusion that the only reasonable inference available was that Mr. Mitchell possessed the fentanyl for the purposes of trafficking. The quantity of fentanyl was not so large that personal use was not a reasonable alternative inference. Moreover, the drug packaging, scales, and cash found in the backpack could relate to the cocaine and not the fentanyl.
[93] The Crown has failed to prove beyond a reasonable doubt that Mr. Mitchell was in possession of the fentanyl for the purposes of trafficking.
Conclusion on the Trial
[94] Accordingly, the Defendant is found guilty of Counts 1, 2, 3, 4, 5, 6, 8, and 9 on the indictment.
[95] The Defendant is found not guilty of Count 7 on the indictment. However, the Defendant is found guilty of the lesser and included offence of simple possession of a controlled substance (fentanyl), contrary to s. 4(1) of the CDSA.
“Nishikawa J.”
Released: December 5, 2024
COURT FILE NO.: CR-24-90000614 DATE: 20241205
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King – and – Evan Mitchell Defendant
REASONS FOR JUDGMENT Nishikawa J.
Released: December 5, 2024