This week’s top three summaries: R v SKM, 2021 ABCA 246: false #memory experts, R v Nairn, 2021 ONSC 4582: #police eye-witnesses, and R v Van, 2021 ONSC 4491: s.9 and #tips.
R v SKM, 2021 ABCA 246
[July 12, 2021] Admissibility of Expert Evidence on False Memories [Thomas W. Wakeling, Frederica Schutz, Ritu Khullar JJ.A.]
AUTHOR’S NOTE: Although there were a few errors in the trial below, the most useful for defence going forward is the overturning of the trial judge's rejection of a memory expert on the grounds of necessity. This is often the battleground for expert psychological evidence particularly when tendered by the defence. Though such evidence was quite common for the Crown in the past, since the caselaw and statutory developments related to sexual offences and child witness evidence incorporated much of the scientific knowledge useful to the Crown into law, the Crown has often been on the offensive trying to keep similar evidence from the defence out of court. They are often successful. This case provides an appellate-level counter to their arguments on necessity. Construction of false memories in the mind is a counter-intuitive phenomenon and juries should hear the evidence from experts about how this occurs so they can evaluate for themselves if this occurred in their case.
Facts
[4] The complainant testified about three incidents in which the appellant sexually touched her beginning in late 1985 in her family home in Edmonton. She stated that during the first incident, the appellant touched her vagina on the outside of her clothing. The touching occurred on the appellant’s bed in the basement of the family home. Other incidents occurred thereafter on the family room couch and at her aunt’s apartment, and included touching her vagina under her clothing, while her bottom clothing was removed, attempts to digitally penetrate her vagina, and the appellant placing her hand on his penis. The touching stopped by early 1988, when the complainant relocated with her family to the western United States.
[5] The complainant testified that when she next saw the appellant at his wedding in India in 1992, she “wasn’t thinking” about the sexual touching. It was not until her freshman year of college in 1995, when she became sexually intimate with her now husband, that she began to experience intense anxiety and a panic attack, which ultimately led to “intrusive memories” and “flashbacks” throughout that semester of being sexual touched when she was younger.
[6] The complainant testified that she became worried she had been “raped” by the appellant. When the appellant and his wife were staying with her family for Christmas in 1995, she confronted him alone in the guest bedroom. She stated that while the appellant denied the rape, he admitted to molesting her; she told him to tell her mother and ran from the house.
[7] When the appellant did not tell her mother, the complainant testified that she told her mother of the abuse in May of 1996, and of the appellant’s confirmation. Her mother, father and grandmother then confronted the appellant about the sexual touching that summer when he was in town to attend a wedding; she stated that the appellant again admitted when asked by her grandmother, that he had harmed the complainant. She further stated: “I do recall my mom asking him, in English, Did you rape my daughter? And he says, No. And then I recall my mom saying to him, Did you molest her? And I asked the same thing again, in front of everyone. And, he said, Yes.”
[10] The complainant’s mother and father both testified about the confrontation with the appellant in 1996, and both stated that when asked by his grandmother to swear before her and God if he had done what the complainant said he had done, he answered yes. The complainant’s mother and brother also testified about a conversation with the appellant in 2015 when they confronted him about paying for the complainant’s therapy, during which he again admitted to touching the complainant.
[11] The complainant’s husband also testified to telephone calls he had with the appellant, the first of which the appellant was alleged to have said “I’m sure your wife would have told you everything I did to her by now”. In the second phone call, the husband stated that the appellant remained silent when he called the appellant “a pedophile, a child rapist”.
[12] The appellant testified denying the offence. He stated that when he admitted to touching the complainant, he believed she was referring to her sitting on his midsection and “bouncing her bum” on his body. While in his belief the complainant’s bouncing on his body was not sexual in nature and was innocent childhood behaviour, at the time the appellant thought this may have looked inappropriate to onlookers. As to his later admissions to other family members, he testified to his submissive personality and desire to avoid conflict, which was why he never explained at the time that he thought what was being discussed was the complainant’s bouncing. It was not until he was arrested that he was told the allegation was sexual assault.
[14] The defence argued the complainant was an honest witness who wrongly believed that she had been sexually assaulted by the appellant; that her recollection of the sexual touching was a series of false memories which began when she had an unexpected negative reaction to a sexual encounter with her future husband in the fall of 1995. The defence submitted this negative experience triggered the complainant’s wondering about what had caused her to feel such alarm and distress, eventually leading to vague but false memories of the sexual abuse which she then came to believe was perpetrated by the appellant. These memories continued to form, becoming more detailed and although false, the complainant honestly believed them to be real, eventually becoming traumatizing to her over time.
[15] The defence sought to call an expert to testify about the science of false memories. However, the trial judge found that the evidence was inadmissible as it failed to meet the necessity criterion in R v Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9 [Mohan]. More specifically, the trial judge determined that he could provide an adequate charge to the jury that false memories are possible.
R v Nairn, 2021 ONSC 4582
[June 28, 2021] Eye-Witness Evidence by Police Officers is Still Fallible [B. A. Allen J.]
AUTHOR’S NOTE: Police officers do not have magical powers of observation. In classically difficult eye-witness identification situations, they are as fallible as the rest of us. Justice Allen provides a very useful analysis of this in a case where a police officer positively identified someone largely from a profile view of very brief duration which included the person running from the officer while wearing a brimmed hat and sunglasses. Moreover, police witnesses should hold themselves to a higher standard on eye-witness identification. Here a police officer used the equivalent of a single-photo lineup for himself from a driver's licence photo after a fingerprint hit to a particular person to make an ID subsequently in court. Such evidence would be given no weight whatsoever and perhaps would be excluded were that procedure followed with any non-police eye-witness. Justice Allen remarked on this process as involving "obvious unfairness" stating that police officers have a greater obligation to ensure meticulous identification procedures as misidentification is a notorious cause of many wrongful convictions.
Overview
[3] The accused, Dwayne Nairn, age 42, faces the charges of unauthorized possession of a loaded prohibited firearm, Criminal Code, s. 95, and possession of a firearm contrary to a prohibition order (four counts), Criminal Code, s. 117.01.
[4] The defence brings applications under sections 7 and 9 of the Charter of Rights asserting that the police violated Mr. Nairn’s rights by racially profiling him and two associates during their investigation of drug trafficking at a plaza in Toronto.
The Incidents
[11] At approximately 4:30 p.m., on March 22, 2018, PC Sacha Safai and Sgt Glen Asselin of the Toronto Police Service (“the TPS”) entered the parking lot of the John Garland Plaza at 1701 Martin Grove Rd. They were in an unmarked police car tasked to conduct surveillance for drug activity. The plaza was known to the TPS as a location with frequent drug activity. The officers testified that in the past, they had been involved in multiple drug investigations at that location. The officers were equipped with binoculars to enhance their observations. Sgt Asselin was driving, and PC Safai was the central notetaker.
[12] Some 20 minutes after arriving at the plaza, the officers observed a white male they referred to as male white #1, later identified as Facundo Guerra, and a Black male who the police called male black #2, later identified as Jermaine Grant, walking outside of the Blue Sky Restaurant (“the Blue Sky”) located at the southeast end of the parking lot. The Blue Sky was known by the officers to be a location of frequent illegal drug activity. Mr. Grant and Mr. Guerra approached a silver Chevy sedan parked in the lot. Mr. Guerra stood by the driver’s side door of that vehicle.
[13] The police observed Mr. Grant move away from Mr. Guerra and approach another vehicle in the parking lot. There, he briefly interacted with an unknown male #3, who was never identified. That male and Mr. Grant conducted what the police concluded was a hand-to-hand drug transaction. Mr. Guerra remained at the silver Chevy. The police officers concluded that Mr. Guerra stood as a lookout while the alleged hand-to-hand transaction took place. Mr. Grant returned to the silver Chevy and he and Mr. Guerra entered that vehicle.
[14] At approximately 4:53 p.m., a Black male, referred to as male, black #4 (whom I will refer to as “MB 4”), is alleged by the police to be Mr. Nairn. They saw him exit the Blue Sky, walk across the parking lot and enter the rear passenger side of the silver Chevy where Mr. Guerra and Mr. Grant were seated. MB 4 was carrying a grey and black backpack. Neither of the officers knew or were familiar with MB 4. Sgt Asselin observed MB 4 inside the vehicle appearing to show the contents of his backpack to Mr. Guerra and Mr. Grant.
[15] The police did not arrest or detain any of the three suspects at the plaza.
[16] At about 4:55 p.m., the silver Chevy exited the parking lot and proceeded northbound on Martin Grove Rd. Given what the police regarded as suspicious conduct at the plaza and the reputation of the location, the officers decided that further surveillance and investigation of the males was warranted. The officers followed the silver Chevy in their unmarked police car.
[17] The silver Chevy drove into the parking lot of a housing complex located at 1811 Martin Grove Rd. As the officers drove into the complex, they observed the three males, including MB 4, standing at the north side of the parking lot. The males were observed smoking what the officers believed was marijuana because they could smell the smoke. This case pre-dates the enactment of the October 17, 2018, Cannabis Act that legalized marijuana use.
[18] Based on this observation, combined with the prior conduct of the three men, the officers determined that they had reasonable grounds to believe that investigative detention of the three males was warranted. Soon after arriving, the officers briefly left the parking lot to request the backup of other officers.
[19] At about 5:03 p.m., with the support of other officers, Sgt Asselin and PC Safai returned to the parking lot of the complex to approach the three males. As their unmarked police vehicle entered the parking lot for the second time, MB 4 and the other two males began to walk toward a footpath leading away from the parking lot. PC Safai saw MB 4 walk quickly along the footpath.
[20] As PC Safai began following him, MB 4 began to run. PC Safai ran after him. During the chase, PC Safai shouted, “Police, you are under arrest.” MB 4 kept running as PC Safai pursued. PC Safai saw MB 4 throw something over a fence. He later discovered it was a loaded handgun. He stopped running to look at the handgun and he consequently lost sight of MB 4. The pursuit ended. Mr. Nairn was not arrested until May 15, 2018, two months later.
[22] The black and grey backpack MB 4 was carrying was located on the backseat which contained various groceries and a box of Polysporin medication. The Polysporin box was sent to the FIS unit for analysis. A fingerprint was recovered from the box. Through a police fingerprint database, it was found to be Dwayne Nairn’s print. A search of Ontario Ministry of Transportation (“MTO”) records, conducted on March 24, 2018, turned up a photo of Mr. Nairn that was taken on November 3, 2010, some eight years earlier. An arrest warrant was issued.
The Law of Identification
[72] The firearm is evidence before the court. The sole issue to be determined in this trial is whether Mr. Nairn was the person who tossed the firearm over the fence.
[73] Identification evidence is inherently unreliable. Frailty in eyewitness identification evidence is at the heart of many wrongful convictions. Witnesses, though well-meaning with an honest belief, may misidentify individuals: [R. v. Miaponoose, (1996), 3 O.R. (3d), 419 at paras. 16-18, (Ont. C.A.); R. v. F.A. 2004 CanLII 10491 (ON CA), 2004 CanLII 10491, at para. 39, (Ont. C.A.); and R. v. Quercia 1990 CanLII 2595 (ON CA), 1990 CanLII 2595, at p. 389, (Ont. C.A.)].
[74] Courts have identified certain hallmarks for measuring the strengths and weaknesses of identification evidence:
- the presence or absence of distinctive features or appearance of the suspect;
- the witness’s previous acquaintance with the suspect;
- the witness’s opportunity to observe the suspect;
- the distance of the witness from the suspect; and
- evidence of focussed attention or any distraction by the witness.
[R. v. Miaponoose, at para. 16]
[75] Jurisprudence is replete with decisions that examine identification evidence in a myriad of fact situations. Identification evidence comes in a variety of forms.
[76] Recognition evidence is an example. This type of evidence involves a witness who knows or is familiar with the accused and recognizes them. Recognition evidence is simply a form of identification evidence which means the same concerns that apply to other types of identification evidence and the same cautions must be considered. “The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence”: [R. v. Olliffe, 2015 ONCA 242 (CanLII), at para. 39, (Ont. C.A.); R. v. Campbell 2017 ONCA 65 (CanLII), 2017 ONCA 65 (CanLII), at para. 10, (Ont. C.A.)].
[77] In-dock or in-court identification is another form of identification evidence. This refers to a witness identifying the person sitting at the defence table or in the prisoner’s dock as the suspect involved in the crime before the court. Long recognized is that in-dock identification should attract little weight: [R. v. Izzard (1990), 1990 CanLII 11055 (ON CA), 54 C.C.C. (3d) 252, at pp. 255-56, (Ont. C.A.) and R. v. Reitsma, 1998 CanLII 825 (SCC), 125 C.C.C. (3d) 1, at paras. 56-59, (S.C.C.)].
[78] The Supreme Court cautioned that: “…it is important to remember that the danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere”: [R. v. Hibbert, 2002 SCC 39 (CanLII), [2002] 2 S.C.R. 445, at para. 50, (S.C.C.)]. The danger lies in the possibility of the witness identifying the accused only because they are the person they see in court sitting in the place assigned for an accused.
[79] There is also a distinction between, on one hand, the weight of identification evidence that comes from a previous fleeting observation or a first identification in court, and, on the other hand, identification evidence that arises in the context of previous encounters with the accused: [R. v. Muir, 2013 ONCA 470 (CanLII), at para. 11, (Ont. C.A.)].
[80] An early study by The Law Reform Commission of Canada addressed some of the subjective factors that can affect the weight of identification evidence. The Commission cites the findings of psychologists who have examined the psychological processes of perception and memory often at play with witnesses giving identification evidence.
Since perception and memory are selective processes, viewers are inclined to fill in perceived events and other details, a process which enables them to create a logical sequence. The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus the final recreation of the event in the observer’s mind may be quite different from reality.
[Law Reform Commission of Canada Study Paper (1983) on “Pretrial Eyewitness Identification Procedures”, at p. 10] (the “Commission Paper”)]
[81] The weight to be given identification evidence can vary depending on the circumstances of the case:
The weight of evidence of identification of an accused person varies according to many circumstances. A witness called upon to identify another witness may have been so well acquainted with him or her as to make the identification certain and safe. The person to be identified may possess such outstanding features or characteristics as to make an identification comparatively free from doubt. The questions under which an observation is made, the care with which it is made, and the ability of the observer affect the weight of the evidence. In addition to such matters, and of the utmost importance, is the method used to recall or refresh the recollections of a witness who is to be relied upon to identify a person suspected of wrongdoing or who is under arrest. If a witness has no prior knowledge of the accused person so as to make him familiar with that person’s appearance, the greatest care ought to be used to ensure the absolute independence and freedom of judgment of the witness.
Analysis
[83] This is not a recognition case. MB 4 was a stranger to the officers. Neither PC Safai nor Sgt Asselin had ever met him before March 22, 2018. The identification of MB 4 comes from PC Safai’s observations of him walking in the plaza, sitting in the silver Chevy at the plaza, in the parking lot at the housing complex and on the pathways during the chase. PC Safai also identified MB 4 from an MTO photo and in court during the preliminary inquiry.
The Circumstances of Observations
[84] It was daytime when the police were conducting their investigation. PC Safai first observed MB 4 for about two minutes, between 4:53 p.m. and 4:55 p.m., as he was exiting the Blue Sky and crossing the parking lot. Some factors compromised a clear view of MB 4’s face. His face was partly obscured by a baseball hat with a brim and dark glasses. The officers’ observations from the police vehicle were from a distance of about 90 to 100 ft. During the two minutes, the officers observed MB 4 inside the silver Chevy showing the contents of his backpack to the other occupants.
[85] The evidence is that both officers had binoculars which would enhance observations. But there is another compromising factor to PC Safai’s view. He was the central notetaker which required him to look away from the scene to make notes. Sgt Asselin would then relay to PC Safai what he observed including details of MB 4’s appearance.
[86] From those circumstances, the description of MB 4 that PC Safai noted is: “male, black, 30 to 40, longer hair in cornrows or dreads.” This is a generic description that could readily apply to many Black males.
[87] The next sighting of MB 4 was at the housing complex parking lot when the police car entered the lot where the three Black males were against a fence, the police thought, smoking marijuana. There was little opportunity for the officers to see MB 4 because they reversed the police car and pulled out of the lot moments after they arrived.
[88] There are physical proximity obstacles to reliable identification.
[89] The next opportunity for PC Safai to observe MB 4 was after the police car pulled back into the parking lot and PC Safai chased MB 4 on foot as he began to run along pathways away from the parking lot. Video surveillance shows the foot chase. Throughout the recording, PC Safai was running a considerable distance behind MB 4. It appeared to be more than the six to ten ft claimed by the officer. At no time is PC Safai in front of or beside MB 4.
[90] PC Safai’s evidence is that MB 4 fell during the chase and he says this closed the distance between them. There is no evidence of a fall on the video recording and he made no note of this. The first time the officer spoke of MB 4 falling was at the preliminary inquiry over a year after the incident.
[91] There were compromising and distracting factors affecting reliable identification.
[92] At one point, MB 4’s hat came off revealing his head. His head turned back a few times. But he continued to wear his sunglasses which compromised the officer’s view of MB 4’s facial features. Sgt Asselin conceded that he was himself not prepared to make a positive identification because he never saw MB 4 without his sunglasses.
[94] There are temporal barriers to reliable identification.
[95] The total passage of time from when PC Safai first saw MB 4 leave Blue Sky, then at the complex parking lot, and next during the chase until the end of the chase, when the officer stopped to investigate the gun, was about two minutes. The foot chase itself lasted only seconds.
PC Safai's Identification Process
[96] As noted above, a fingerprint was lifted from a Polysporin box located in a bag of groceries located on the rear seat of the silver Chevy where MB 4 had been sitting. A computer-generated search of a police database turned up “Dwayne Nairn” as the depositor of the print. PC Safai downloaded the fingerprint to the MTO database and turned up Dwayne Nairn’s driver’s license photo. The photograph on the licence was taken on November 3, 2010, eight years earlier. There is no evidence of any other fingerprints found inside or outside the silver Chevy.
[97] PC Safai made no notes to memorialize the description of MB 4. This faulty part of the process contaminated identification.
[98] PC Safai reviewed the single photo in isolation and indicated he could identify the person depicted as Mr. Nairn. There were no photos of others from which PC Safai could select. Further, the officer identified Mr. Nairn even though Mr. Nairn was a stranger to him before he saw him at the plaza, he was only able to observe Mr. Nairn for a total of two minutes and the photo was eight years old.
[99] The officer made no notes of his thinking process or the steps he took in identifying Mr. Nairn. Then, over a year later at the preliminary inquiry, he told the court, without reference to notes, that he could recognize Mr. Nairn by his jaw, brow and forehead. He did not say what was distinctive about his jaw, brow and forehead that corresponded to the same features in the photo. The fact is that PC Safai sat in the witness box in front of where Mr. Nairn sat as the sole defendant. This, too, contaminated and not unexpectedly narrowed the process of the officer’s identification of Mr. Nairn.
[100] Another fact is that PC Safai, in his generic description of MB 4, did not describe facial hair. In the MTO photo of November 3, 2010, in the photos taken at his arrest in May 2018 and in a subsequent photo taken in April 2019, Mr. Nairn has a moustache and a partial beard. If there was facial hair on March 22 nd it should have been noted and the absence of facial hair would have also been noteworthy.
Conclusion
[101] Positive identification of an accused is the fundamental essential element of every criminal offence. Eyewitness testimony that directly connects an accused to the commission of an offence is frequently the most significant evidence in a prosecution. Eyewitness identification figures prominently in both jury and non-jury criminal cases. It is well-founded that, in its frailty and potential if not treated with caution, to lead to wrongful dismissals, courts must be vigilant in assessing and weighing this type of evidence.
[102] The officer’s identification of MB 4 as Mr. Nairn was marked by obvious unfairness. I believe officers of the law have a greater obligation than an ordinary member of the public to ensure meticulousness in the identification procedures and the steps they take that result in bringing a person under the scrutiny of the criminal justice system. PC Safai did not do this. The grave consequences of flawed identification are well-known to police. Notoriously, misidentification is behind many wrongful convictions. Too many people have been criminalized who have not committed a crime. One is too many. [Emphasis by PM]
[103] PC Safai had no familiarity with MB 4 before he encountered him in the plaza. He observed him for a total of two minutes when MB 4’s head and face were for the most part masked by a brimmed hat and sunglasses and where the officer saw him only from behind at some distance during the foot chase.
[104] The officer wrote only a generic description of MB 4 in his notes. And it was with that description that he viewed the MTO photo. PC Safai went on to narrowly conclude, in isolation of other photos for comparison, that MB 4 was Dwayne Nairn, the Black male in the photo. He spoke of identifying MB 4 by his jaw, brow and forehead without pointing out what, if anything, was distinctive about those areas of his face and how they corresponded with Mr. Nairn’s face in the MTO photo. Sgt Asselin did the right thing in declining to make a positive identification because MB 4’s sunglasses continued to obscure his face.
[105] Then over a year later, PC Safai, without notes to refresh his recollection of his identification, took that flawed process to the witness stand at the preliminary inquiry and, with Mr. Nairn sitting in front of him, again identified him by his jaw, brow and forehead. Then at trial over three years after the incident on March 22, 2018, PC Safai presented a positive identification of Mr. Nairn as the person he chased and who threw the gun over the fence. I am not able to find P.C. Safai’s identification evidence reliable.
[106] On the evidence I saw and heard in this trial, it would be dangerous to convict Mr. Nairn.
R v Van, 2021 ONSC 4491
[June 23, 2021] Charter s.8/9 - Reasonable Grounds from Informant Tip [B. A. Allen J.]
AUTHOR’S NOTE: Tips to police about unlawful firearm possession usually result in a quick response and interference with personal liberty. However, the law does not release police from the requirements of reasonable grounds for an arrest in these circumstances no matter what the alleged report of a firearm suggests. In this decision CI information led police to intervene on scant descriptions and immediately engage a group of Asian males in a detention and evidentiary search. Multiple Charter infractions followed due to the failure of the CI information to amount to grounds for arrest.
Overview
[3] The accused, Tommy Van, stands charged with nine possession of firearm and ammunition charges including possession of a concealed firearm, with serial number defaced, for a dangerous purpose with readily available ammunition and is further charged with being without licence or authorization and with careless storage of ammunition for a dangerous purpose.
[4] It is alleged that on September 5, 2018, Mr. Van carried in a satchel a prohibited Glock Model 27 semi-automatic firearm loaded with 40 calibre Smith & Wesson ammunition knowing he was without license or authorization to possess the firearm. There was no bullet in the chamber and the serial number on firearm was defaced.
[5] On consent this matter proceeded as a combined trial and a voir dire which raised challenges under sections 8, 9 and 10 of the Charter of Rights. The burdens of proof on the trial and Charter applications vary. The Crown carries the burden beyond a reasonable doubt on the trial. On the voir dires, the defence has the burden on a balance of probabilities on the s. 9 (arbitrary detention) and 10 (right to counsel) applications and the Crown carries the same burden on s. 8 (search and seizure).
Facts
[20] PC Murphy had been an officer for about 5 years in September 2018. He received a phone call from DC Kharbar at 5:02 p.m., and as noted above, he asked PC Murphy to assist with the investigation. DC Kharbar directed PC Murphy to proceed to Queen St. W. and MacDonnell Ave. to investigate Asian males regarding a firearm. DC Kharbar’s description of the males as told to PC Murphy was scant:
- 3 Asian males, dressed all in black,
- possibly wearing shorts
- possibly carrying small bags containing a firearm.
[21] The instruction was that PC Murphy and PC Fenty were to proceed to the area and detain the males when they came upon them.
[22] PC Murphy was told to stand by for more information. At 5:18 p.m., PC Murphy received a radio call that males were at the barbershop at the Queen St. W. and MacDonnell Ave. location. No further description or instructions were given.
[23] PC Murphy and PC Fenty biked over to the location. PC Murphy observed 2 males he believed matched the description given by DC Kharbar - that they were Asian, wearing an article of black clothing and carrying satchels. PC Murphy said there were a total of 10 - 11 people at the location. He detained three people and they complied when the officer ordered them up against the wall. Two of the males wore satchels. One of the males with a satchel was Mr. Van.
[24] PC Murphy did not inform the males of why they were being detained until they inquired. He told them their detention was in relation to a firearm. He did not give the suspects rights to counsel and caution. He said he did want to interrupt detentions involving firearms by reaching for his memo book and reading from it.
[25] A satchel or satchels was an important factor in identifying which of the Asian males to be concerned about. PC Murphy’s evidence was inconsistent and hence I found it unreliable in this area.
[26] PC Murphy testified he decided to detain and search the suspects for officer safety.
[27] It was PC Murphy’s evidence at trial that he removed two satchels, one from each of two Asian males. He stated that he placed the satchels on a planter in sequential order so he could remember which was taken from whom during the searches. However, on this critical evidence, PC Murphy did not have any notes on either the presence of a second satchel or the fact that he placed them in a sequence on the planter. Further, he could not describe either satchel. And there were no identifying items in either satchel attributable to Mr. Van, such as a piece of identification.
[28] PC Murphy testified that he recovered a black Glock from the satchel which he claimed Mr. Van was carrying. During trial, PC Murphy stated he could not recall what Mr. Van was wearing or what his hair looked like.
Investigative Detention (Section 9) and Safety Searches (Section 8)
[34] Under s. 9, everyone has the right not to be arbitrarily detained or imprisoned. The onus is on the applicant to show in all the circumstances they were unlawfully detained in violation of their constitutional rights.
[36] Important to this power is that a detention under s. 9 should be brief in duration. A police officer may briefly detain for investigative purposes where in the totality of the circumstances the officer has reasonable grounds to suspect a clear connection between the individual to be detained and a recently committed or unfolding criminal offence.
[37] In deciding whether to detain, officers are not to operate on a mere “hunch” or “suspicion” in detaining on an investigative detention: [R. v. Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59 (S.C.C.)]. An investigation under this power should be limited to a protective pat-down or frisk of the outside of a person’s clothing. Officers are not authorized under this power to search a suspect’s pockets or person unless during the pat-down they engage an object that feels like a firearm.
[38] A detention must be reasonable. There must be a constellation of discernible facts that give the officer reasonable cause to suspect the detainee is criminally implicated in the activity under investigation: [R. v. Simpson (1993), 1993 CanLII 3379 (ON CA),79 C.C.C. (3d) 482 (Ont. C.A.)]. There are subjective and objective components to the assessment of reasonable suspicion. An officer’s subjective belief that a suspect might be involved in a criminal activity must be objectively substantiated. The analysis of objective reasonableness should be done from the perspective of a reasonable person standing in the shoes of the police officer: [R.v. MacKenzie, 2013 SCC 50 (CanLII), at para. 63]
[39] The reasonableness of the decision to detain under s. 9 must be examined in the context of all the circumstances: [R. v. Mann, at paras. 24 and 34]. ...
[40] The Supreme Court of Canada in R. v. MacKenzie offered this observation:
[R]easonable suspicion need not be the only inference that can be drawn from a particular constellation of factors.Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable,as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.
[R. v. MacKenzie, at paras. 33 and 35; italics added]
[41] The common law distinguishes between an investigative detention under s. 9 and the incidental power to search on arrest under s. 8, in more recent cases called a “safety search”. The standard on an investigative detention is reasonable grounds to suspect and on a search incident to arrest, reasonable grounds to believe. The investigative detention standard is lower than the standard on the power to more invasively search incidental to an arrest.
[42] The police in the case before me conducted a more invasive search than the pat-down allowed on an investigative detention. PC Murphy searched a satchel he says he removed from Mr. Van, searched it and found a loaded firearm. The information he received was that Asian males in the target area were seen with (a) firearm(s) and he explained that he did the search in the interests of safety for the police and the public.
[43] We must look at the appropriateness of the decision to go beyond an investigative detention to the more invasive safety search. The power to search incident to an arrest is set down by statute and common law.
[44] Section 8 of the Charter provides everyone with protection against unreasonable search and protection of individual privacy rights against unreasonable intrusion by the state. The police searched Mr. Van without a warrant. The onus on warrantless searches shifts to the police to establish reasonable grounds to arrest. Section 495 of the Criminal Code provides:
A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or
(b) who, on reasonable grounds, he believes has committed or is about to commit an indictable offence.
[47] The MacKenzie court equates “reasonable grounds to believe” and “reasonable probable grounds”. As the court observed in R. v. Chehil, judges scrutinizing police action must take heed not to conflate the reasonable suspicion standard under s. 9 with the weightier reasonable and probable grounds standard under s. 8 searches: [R. v. Chehil, at para. 27].
[48] The relevant time to determine the necessity of a search is at the time of the actual search and seizure with the informationan officer has at that time. At that point, it can be determined whether the officer had the requisite subjective and objective grounds. “Intention alone does not attract a finding of unconstitutionality. It is not until that subjective intent is accompaniedby actual conduct that it becomes relevant.”: [R. v. Clayton 2007 SCC 32, 220 C.C.C. (3d) 449, at paras. 48, (S.C.C.)].
[49] In R. v. MacDonald, the Supreme Court of Canada considered the scope of police search powers in the context of an interaction with an individual at the door of his home. The police received a noise complaint at a home and became involved in adangerous situation that, in the officer’s view, put their safety and the safety of others at risk. The operation of s. 8 of the Charterwas at issue.
[50] Affirming the principles laid down in earlier cases, the Supreme Court addressed the need to draw boundaries on the power of a state agent contemplating making the more invasive safety search:
But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view, the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on “reasonable and specific inferences drawn from the known facts of the situation” (Mann, at para. 41).
[R. v. MacDonald, 2014 SCC 3 (CanLII), [2014] 1 S.C.R. 37, at para. 41, (S.C.C.)
[51] The majority in MacDonald determined that the officer’s act in pushing the door open constituted a reasonable search in the circumstances as having been authorized by a reasonable law and conducted in a reasonable manner.
[52] The majority opinion however made clear that the power to do safety searches cannot be based on a nebulous concern about risk of danger. That type of search is permitted only in situations where there is objectively verifiable danger to the police orthe public. This case departs from the earlier line of cases that held that R. v. Mann stands for the view that safety searches could be conducted on reasonable suspicion: [R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52, at para. 40, (S.C.C.)]. [Emphasis by PM]
[53] The minority opinion in MacDonald raised practical questions faced by an officer in circumstances where the officer immediately forms reasonable grounds to believe the suspect has a firearm. Does the officer restrict themselves to the minimal safety pat-down search and go no further? Or does the officer arrest the suspect and, incident to the arrest, move to a more invasivesearch of the suspect and his belongings, perhaps, foregoing the safety pat-down? Those considerations were raised by the Crown in the case before me.
[54] It is the majority opinion in MacDonald that must rule the day. Safety searches should not be conducted on less than reasonable grounds to believe.
[55] The difficulty in applying the standards in the case before me is that the basis for an investigative detention - that is, a reasonable suspicion of possession of a firearm, and the evidence of criminality expected to be uncovered by a safety search, that is, possession of a firearm - are effectively the same. So, for the officers to further their investigation with the information they had when they arrived on scene, they were on a mission to conduct a safety search for a firearm.
[56] The question for me to determine is whether PC Murphy had sufficient information at the time of the search to justify the lower standard for an investigative detention. And if so, did his information meet the loftier standard for conducting a more invasive search of the satchel and arresting Mr. Van?
[64] It makes sense that it is PC Murphy’s reasonable grounds to suspect or reasonable grounds to believe that should be operable in the analysis. But it is noted that PC Murphy received limited information from DC Kharbar.
The Debot Framework
[65] The Debot factors are well-known. The standard is reasonable and probable grounds to search: [R. v. Debot, p. 1166]. The three factors offer a tool to measure the credibility and reliability of the informant and their information, the compelling natureof the information and the corroboration of the information. In applying the factors, it is the “totality of the circumstances” thatmust meet the standard of reasonableness. In the analysis regard must be had to the notion that weaknesses in one factor may, tosome extent, be compensated by strengths in the other two: [R. v. Debot, at p. 1168].
[67] The confidential informant provided the information that launched the investigation which makes the credibility and the reliability of their information critical. In this assessment, the court must be mindful of the privilege that protects the identity of theinformant which may affect the quantity of disclosable information: [R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281(S.C.C.)]. This may have been the case with the information available to PC Hildebrand and PC Murphy.
[68] DC Kharbar knew little about PC Hildebrand except that he worked at headquarters possibly in an intelligence or an analysisunit. More importantly, there was nothing known about the source. They were not known to be a tested source. There is nothing provided about the source’s track record as an informant; nothing about the currency of their observations, whether the informationprovided was fresh or stale. There is an absence of detail on the circumstances under which the source’s observations were made. In other words, for his part PC Murphy did not know the basis of DC Kharbar’s belief that there would be 4 Asian males dressed inblack carrying firearms, etc.
[69] The information was at least third-hand by the time it reached PC Murphy. There is no indication whether the information from the informant was first-hand or provided to them by yet another party. I find this would tend to undermine the credibility and reliability of that aspect of the information PC Murphy possessed at the scene.
[70] On the totality of the evidence, I find the credibility and reliability of the information and the informant was such that it fell below reasonable grounds to believe, and by extension, the lesser standard of reasonable suspicion.
[72] PC Murphy did not have all of the information that DC Kharbar received from PC Hildebrand. PC Murphy was operating with little information about the suspects when he arrived at the scene: 3 Asian males, dressed all in black, possibly wearing shorts and possibly carrying small bags containing a firearm(s).
[73] What PC Murphy observed on scene was a group of about 10 - 11 people. PC Murphy concluded from the skeletal description received from DC Kharbar that Mr. Van fit the description, as did the other three males. He concluded that 2 males more matched the description DC Kharbar gave him, being Asian males, wearing an article of black clothing and carrying satchels. Four persons were detained up against the wall. Two of those males wore satchels. One of the males with a satchel it is alleged was Mr. Van. At trial, PC Murphy did not recall what the detained males, including Mr. Van, were wearing.
[75] Regarding PC Murphy’s evidence that all 4 detained males fit the description, it actually appears to be that none of the males were dressed in all black clothing. Only 2 had satchels. They were all dressed in a variety of colours of clothing. What the 4 had in common then was that they were young Asian males.
[76] When looking at whether the information was compelling or not, I considered that there was a fair amount of detail provided particularly on the race, range of ages and clothing. This information is only as valuable as the extent to which it is information within the special knowledge of the source, from an insider. The males were congregated in public on the corner of a busy street. The clothing and appearance of the males were therefore open to the broader public.
[77] Regarding the firearm, the source said he saw guns described as black baby Glocks. There is no description of the circumstances surrounding the firearms. The description of the guns amounts to no more than a bald statement, bearing little specificity: [R. v. Debot, at pp. 1168-1169]. There is also the fact that DC Kharbar was not clear in his notes as to whether there was a singular gun or more guns to be investigated. His notes said “gun(s)” and he was not able to explain why he wrote his note that way.
[79] In any case, I do not find the fact of the police acting quickly after they received the information is critical here. What is important is evidence of how short the time was between the source acquiring the information and the detention and search of Mr. Van and when it was that PC Hildebrand gave the information to DC Kharbar. DC Kharbar indicated PC Hildebrand gave him the impression of immediacy of the information, but DC Kharbar was not sure if the source told that to PC Hildebrand.
[80] Greater weight on the compelling nature of the information is required when the credibility and reliability factors are weak. Looking at the information as a whole, I do not find the information PC Murphy had was of a sufficiently compelling nature to meet the standard of reasonable grounds to suspect or reasonable grounds to believe that a crime was being committed, that he would find someone in possession of a firearm.
[81] Given my findings that the information on the credibility and compelling nature factors are not strong, more weight rests on the corroboration factor to reach a standard of reasonableness for the purpose of both the s. 8 and s. 9 inquiries.
[82] The police believed the 10 males on the street somehow fit the description DC Kharbar provided PC Murphy. DC Kharbar directed PC Murphy to detain them and search them “thoroughly”. PC Murphy detained two individuals, one of whom he thought met the description and that was Mr. Van. PC Murphy did not recall what he was wearing. It is not clear that Mr. Van was wearing all black according to PC Fenty’s description of three of the men that were detained.
[83] As well, the source indicated that one of the men would be wearing a Gucci belt. DC Kharbar said one of the men was wearing some type of designer belt, but he was not certain whether it was a Gucci or a Louis Vuitton. In a case that depends on strong corroboration to establish reasonable grounds to believe, the officer only being able to say the belt might be as described by the source is weak corroboration. Be that as it may, what is critical in the analysis is not DC Kharbar’s observations, but what PC Murphy the arresting officer, who formed the grounds, observed.
[84] I find the information garnered by PC Murphy did not sufficiently satisfy the weightier corroboration requirement. The information met neither the reasonable suspicion nor reasonable and probable grounds to believe that a crime was being committed, that Mr. Van would be in possession of firearm.
Right to Counsel, Section 10 of the Charter
[92] The Supreme Court of Canada clarified the immediacy requirement under s. 10(b) holding that it is only subject to concerns for officer or public safety until circumstances are brought under control: [R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 42, (S.C.C.)].
[93] There is no issue in this case as to precisely when the males were detained. The officers arrived on bikes and immediately took physical charge ordering 4 males to face the wall and detaining the others. PC Murphy was in charge of 2 of them, including Mr. Van, and PC Fenty was in charge of the other 2.
[94] The evidence is that PC Murphy did not inform Mr. Van and the other male of the reason for their detention until they asked why they were being detained. It was then that he told them they were detained because of a firearm. Further, he did not give the males their rights to counsel and caution. His reason - he did not want to interrupt detentions in a firearm investigation by using his hand to reach for his memo book to read from it.
[96] PC Fenty was a relative novice officer compared to his partner who had five years’ experience with the police service. I find PC Fenty operated within the law. PC Murphy on the other hand violated the law when he failed to both inform Mr. Van immediately upon his detention of the reason for his detention and neglected to give his right to counsel and caution.
Conclusion on Violations
[97] I find the evidence does not satisfy the lesser standard of reasonable grounds to suspect required to be met to render an investigative search lawful under s. 9. This of course means that the higher standard of reasonable grounds to believe a crime was being committed has not been satisfied. I find that PC Murphy might well have held an honest belief that he had reasonable and probable grounds to arrest and search Mr. Van. However, on the totality of the evidence, I conclude the objective factors do not support that subjective belief.
Section 24(2)
First Inquiry
[102] I find the cumulative effect of all of the breaches falls on the more serious end of the spectrum. I would not have found this to be the case were I to be dealing solely with the violations under s. 10(a) and 10(b). This is of course not to suggest that breaches of rights to counsel are not to be taken seriously. What I am saying is that the nature of the s. 10 violations in this case are not the worst of that class of violations. There is no evidence of any extraordinary delays in providing rights to counsel and access to a lawyer as is the situation too often. I find the s. 10 breaches to be of moderate seriousness occurring as they did in the context of a detention and search conducted without reasonable grounds.
[103] I find the violations under sections 8 and 9, even on their own, to be on the more serious end of the spectrum . The police saw a large group of young Asian males on a corner of a busy street in Toronto. The CRU officers, acting under the direction of a lead investigator to detain and thoroughly search the males, with scant descriptive details, moved in swiftly on their bikes and detained the group, ordering 4 of them up against the wall with their hands up and detaining the others. This was under circumstances where it seems that all the persons had in common was that they were young Asian males. All were readily detained and searched with no pause to assess their criminality.
[104] Mr. Van was one of two males whom PC Murphy thought fit the rather skeletal description he received from DC Kharbar. What the officers found was not Asian males dressed “in all black” but rather males with an eclectic assortment of clothing colours and styles. Besides being provided the race of the males, an approximate age range, and the description of one male being chubby, no distinguishing physical descriptors were provided. This led me to the conclusion that on the totality of the circumstances the information available to the officers fell short of supporting both reasonable grounds to suspect criminality and by extension the stricter standard of reasonable grounds to believe a crime was being committed.
[105] My conclusions are not based on any belief that the officers were acting in bad faith or with malicious intent in regard to any of the Charter violations. I believe the officers were acting quickly and this resulted in PC Murphy being careless about observing Mr. Van’s rights under circumstances where there was no exigency. I am not oblivious to the fact that firearm investigations can present with serious risks of danger to the police and public. However, in this case the police moved rapidly and took control of a large group of males, detained and invasively searched them, in a situation where all of the detainees were immediately compliant.
[107] I find the cumulative effect of the sections 8, 9, 10(a) and 10(b) Charter violations to be serious such that the court should not condone this conduct. The court should dissociate itself from this conduct.
The Second Inquiry
[109] Mr. Van was among a group of young Asian males standing on the corner of a busy street in downtown Toronto. He was detained up against a wall and not told why he was detained until an inquiry was made. Mr Van quickly had his satchel taken from him and searched. People, not just women, frequently keep private, personal items in bags and satchels. Such a search is very invasive, more of a violation when done without a proper prior investigation.
[111] The court must dissociate from the intrusion into the private realm Mr. Van’s satchel in the context of rapidly detaining him in public among almost a dozen Asian males with faint grounds to believe a crime was being committed, that Mr. Van had a firearm.
Balancing
[118] Overall, I find the combined effect of the Charter violations to be serious and the impact on Mr. Van to not be insubstantial. When I weigh my findings on the nature of the violations against the serious nature of the crime Mr. Van is accused of, I find in the circumstances admitting the firearm would risk bringing the administration of justice into disrepute.
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