R. v. Essa, 2014 ONCJ 307

ONTARIO COURT OF JUSTICE CITATION: R. v.

Essa , 2014 ONCJ 307 DATE: 24 June 2014 COURT FILE No.: Ottawa 14-9830 BETWEEN: HER MAJESTY THE QUEEN — AND — Ahmed ESSA Before Justice Robert Wadden Heard on June 23, 2014 Reasons for Judgment released on June 24, 2014 Julien Lalande ........................................................................................ counsel for the Crown Biagio Del Greco .............................................................................. counsel for the defendant WADDEN J.: RULING ON CHARTER APPLICATION [ 1 ] Ahmed Essa is charged, on a thirteen count information, with numerous firearms related offences, including possession of a loaded prohibited firearm.

He has pleaded not guilty and brought an application alleging breaches of ss. 8 and 9 of the Charter of Rights and Freedoms and seeking exclusion, pursuant to s. 24(2), of the evidence of a loaded 9 mm handgun found in his possession. Facts [ 2 ] The evidence on the Charter Application consisted of the testimony of two Ottawa police officers, Cst. Jason Murphy and Cst. Kelly Dayment. [ 3 ] The facts are largely uncontested.

At approximately 7:30 a.m. on March 8, 2014, Constables Murphy and Dayment responded to a noise complaint at Unit 313 in a high rise apartment building at 2920 Fairlea Crescent, in the City of Ottawa. Cst. Murphy testified that this building is in a higher crime area of Ottawa and he had been there on previous occasions. By the time the officers arrived at apartment 313 they found there was no excessive noise coming from inside. As they were about to knock on the door they were distracted by a loud disturbance coming from the stairwell at the far end of the hall in which they were standing.

The noise was of a nature that it could disturb the occupants of the building and they went to investigate. As they approached the stairwell they looked inside through a window in the door and saw the Applicant and another man in what appeared to be in a heated argument. They were visibly and audibly yelling at each other, with their arms raised. The men were positioned on the stairs between floors three and four. Constable Murphy entered the stairwell and asked what was going on and what the yelling was about. On seeing the uniformed officers the yelling stopped.

The men gave no explanation for the yelling and told the officers they were “fine”. [ 4 ] On entering the stairwell the officers immediately detected a strong and distinct odour of marijuana. Constable Murphy had not noticed this from anywhere else in the building that morning prior to entering the stairwell. Both men had lighters in their hands and

told the officer they were on the way outside to have a smoke. Constable Murphy asked the two men to come down a few steps to the landing to identify themselves. The officer noted that the odour of marijuana intensified as the men got closer to him. [ 5 ] The Applicant identified himself verbally to the officer and told him he lived in apartment 404 of the building. He did not have any identification on him. [ 6 ] As a result of detecting the smell of marijuana Cst. Murphy’s investigation focussed on asking questions about drugs.

He asked if either of the men had marijuana on them, or if they had had recent access to it. Both men denied this and Cst. Murphy thought they must be lying, due to the intense smell. His police experience had led him to associate the smell of marijuana with the possibility of discovering drugs or drug paraphernalia. He suspected these men might be in possession of drugs and might also be connected to the original noise complaint. [ 7 ] As the Applicant approached Cst. Murphy the officer saw him put his hand behind his back.

The officer testified that based on his police experience he was aware that there is an increased concern for the presence of weapons when dealing with suspects involved with illegal drugs. On seeing the movement by the Applicant Cst. Murphy was concerned that he could have been reaching for a weapon. Cst. Murphy immediately ordered the Applicant to show his hands, which he did by putting his open hands in front of him in a “hands up” motion. He and Cst. Dayment separated the men to give them a pat-down search for officer safety prior to continuing their investigation. [ 8 ] While Cst.

Murphy was on the radio to his dispatch Cst. Dayment observed the accused move his hands and put his hands in his pocket. She ordered him, at least twice, to show his hands, as she was concerned that he might have a weapon and that he posed a threat to officer safety. Cst. Murphy took charge of the Applicant, told him that he was going to search him and asked him if he had any weapons. The Applicant responded “no” but said to the officer, in hushed tones, “I want to talk to you.” The officer responded that he would “do what he had to do first.” The Applicant repeated “I want to talk to you.” This heightened Cst.

Murphy’s suspicion that there was more going on in this situation. [ 9 ] Cst. Murphy described the search as literally patting of the person, focussing on areas that are easily accessible, such as the waistline and coat pockets. He noted that the Applicant was wearing a sleeveless bomber jacket over a blue long sleeve sweater extending past his waistline in the back. He noted that this rear waistline area is the area where the Applicant’s hand would have been when it went behind his back. [ 10 ] The Applicant complied with the search. With the Applicant’s hands against the wall Cst.

Murphy lifted the bomber jacket and sweater and saw the butt end of a firearm with a magazine clip in it in the rear waistband of the Applicant’s pants. He yelled the code for firearm, grounded the Applicant and seized the gun. [ 11 ] Cst. Dayment took the gun and made it safe. She observed that it was a Smith and Wesson 9 mm semi-automatic handgun that was fully loaded with twelve rounds, including a magazine clip holding eleven rounds and a live round of hollow point ammunition in the chamber.

Charter Application [ 12 ] The Applicant is requesting an order to exclude the evidence of the seized firearm on the basis that he was searched by police without proper grounds, contrary to his rights as guaranteed by s. 8 of the Charter . He is further requesting an order to exclude the evidence on the basis that he was detained arbitrarily, contrary to his rights under s. 9 of the Charter . [ 13 ] The application to extend time for service of this application was granted, on consent.

Position of the Parties [ 14 ] It is acknowledged that the Applicant was detained by the officers and subjected to a warrantless search. Counsel for the Applicant takes the position that the detention was unlawful as the officers had gotten as far as they could in the investigation of any drug offences, once the men had denied current or recent possession of drugs, and therefore there was no authority to detain for further investigation. He further states that the pat-down search was unlawful as the Applicant did not pose any real or present threat to the safety of the officers or any other individual.

The position of the Respondent Crown is that the detention was a temporary detention as part of the investigation into an offence, specifically drug offences and to a lesser degree the original noise complaint. The Crown takes the position that a brief search of the Applicant was justified in the circumstances to assure the officers that there was no threat to their safety or that of the public before continuing their investigation. Applicable Law [ 15 ] The applicable principle of law relating to a pat-down search conducted as part of an investigative detention is described in R v.

Mann 2004 SCC 52 , as follows [1] : 45 … police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, 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. … The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest …

[16] The principle is succinctly summarized in Ewaschuk’s Criminal Pleadings and Practice in Canada, 2nd Edition, asfollows[2]: Where the police have “reasonable grounds to detain the person for investigative purposes”, the police may search the person for“protective purposes”. There must be a “clear nexus” between the person to be detained and a recent or on-going criminal offence. Furthermore, the police may not do a “pat-down search” unless the officer believes on reasonable grounds that his or her own safety, orthe safety of others, is at risk.

The validity of the decision to search is assessed on the “totality of the circumstances”. [17] In the recent decision of R v. MacDonald 2014 SCC 3 , [2014] SCJ No 3, the Supreme Court reiterated the law as setout in R v. Mann related to pat-down, or safety, searches[3]: … the duty of police officers to protect life and safety may justify the power to conduct a safety search in certain circumstances.

At thevery least, where a search is reasonably necessary to eliminate an imminent threat to the safety of the public or the police, the policeshould have the power to conduct the search. … Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes onreasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see alsopara. 45).

The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances fo 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 avague concern for safety. Rather, for a safety search to be lawful, the officer must act on “reasonable and specific inferences drawn fromthe known facts of the situation” (Mann, at para. 41). [18] In MacDonald, the police had responded to a noise complaint and Mr. MacDonald partially opened the door of his apartmentto the police.

The Court held that the actions of the police in forcing their way through the door were justified under the common lawpower to conduct safety searches in the circumstances of that case[4]. … The power was engaged because Sgt. Boyd had reasonable grounds to believe that there was an imminent threat to the safety of thepublic or the police and that the search was necessary in order to eliminate that threat. More specifically, the trial judge found that Sgt.Boyd had observed the following when Mr. MacDonald answered the door: (

i) Mr. MacDonald had his hand behind his leg and was clearly holding an object; (ii) what he was holding was “black and shiny” and therefore could have been a weapon; and (iii) when twice asked what he had behind his back, he refused to answer or to provide any explanation. … the search conducted by Sgt. Boyd was authorized by law and the law itself, in the form of a well-established common law principle,is reasonable. [19] It is worth noting that in R. v.

MacDonald there was no indication of criminal activity in the surrounding circumstances,while in the present case there was evidence of possession and use of drugs in public. Furthermore, the search of MacDonald involvedthe police bursting into his residence, which is recognized in law as highly intrusive.[5] [20] Detention for investigative purposes, and the conduct of a search incidental to the detention for safety purposes, is lawful atcommon law.

In R v Clayton 2007 SCC 32 , [2007] 2 SCR 725 the Supreme Court summarized the application of this commonlaw principle to Charter rights as follows[6]: Thus, a detention which is found to be lawful at common law is, necessarily, not arbitrary under s. 9 of the Charter. A search doneincidentally to that lawful detention will, similarly, not be found to infringe s. 8 if the search is carried out in a reasonable manner andthere are reasonable grounds to believe that police or public safety issues exist.

Application to the Facts of this Case [21] In the present case, the police were investigating a noise complaint in an apartment when their attention was drawn to theApplicant by his causing a disturbance in the stairwell of the apartment building. The yelling by the Applicant and the other man was soloud that the police could hear it from the other part of the hallway. On investigating they found two men angrily yelling at each other ina public stairwell. There was a strong smell of marijuana in the immediate area which got stronger as they dealt with the men.

Whenquestioned the men denied there were any issues between them. They denied possession of drugs. The Applicant was only able toprovide verbal identification. The Applicant reached behind his back when speaking with Constable Murphy, and he was warned tokeep his hands visible. Constable Dayment observed repeated hand movements by the Applicant, which is corroborative of ConstableMurphy’s observation moments earlier. [22] The evidence of illegal drug use in the public stairwell of a high rise building in a higher crime area of the city warrantedinvestigation by these officers.

The fact that the officers had found the Applicant in a yelling match, in the context of the police havingbeen called to the building for a noise complaint, further justified their investigation. There was a clear connection between theApplicant and “a recent or on-going criminal offence”, namely possession of controlled drugs and substances. Constable Murphy’ssuspicion that the Applicant was implicated in drug possession and use was reasonable. Constable Murphy was not acting on a hunch –there was clear evidence around him of the commission of a crime, in the form of the strong smell of marijuana.

Given that theApplicant and the other man were not providing any information to the officers about drug use or the reasons for their apparentaltercation, and the Applicant did not have identification on him, it was reasonable for the officers to feel it was necessary to detain themfor further questioning and to continue the investigation. I find that the detention of the Applicant was lawful at common law and notarbitrary under s. 9 of the Charter. [23] With respect to the pat-down search, I accept Cst. Murphy’s evidence that in his experience as a police officer the presence of

drugs is often associated with the presence of weapons. I accept his evidence that as the Applicant approached him he put his handaround his back and that this led Cst. Murphy to believe that the Applicant might have a weapon. In the context of all the evidenceavailable to the officer, including the obvious evidence of drug use in the stairwell and the heated verbal exchange between the Applicantand the other young man found there, I accept the evidence of Cst. Murphy that he had an immediate concern for his safety and a beliefthat the Applicant might have a weapon when he saw the hand motion. Cst.

Murphy’s reaction to the hand motion was immediate andspecific – he ordered the Applicant to show his hands. The fact that Cst. Dayment had the same reaction when she observed theApplicant put his hands in his pockets supports the objective reasonableness of Cst. Murphy’s belief. [24] Cst. Murphy’s search was minimally intrusive in that the intention was to literally pat-down the Applicant, and the search asit was actually conducted only resulted in the lifting of the coat and sweater of the Applicant before the readily visible firearm wasdiscovered in the Applicant’s waistband.

Given the actions of the Applicant, in the totality of the circumstances as known to Cst.Murphy, I find that it was necessary to conduct a pat down search incidental to the investigative detention. [25] The search was conducted incidentally to the lawful detention of the Applicant, was carried out in a reasonable manner andthere were reasonable grounds to believe that police safety issues existed. The search did not infringe s. 8 of the Charter. [26] I would therefore dismiss the Application to exclude the evidence.

Section 24(2) Analysis [27] Having found no breaches of the Applicant’s Charter rights, it is unnecessary to undertake a s. 24(2) analysis. However, Ihave determined that if there had been a breach of s. 8 or 9 Charter rights in the circumstances of this case I would not have excluded theevidence under s. 24(2) of the Charter, following the test in R v.

Grant 2009 SCC 32 , [2009] 2 SCR 353. [28] In seeking to exclude evidence under s. 24(2), the onus is on the Applicant to establish on a balance of probabilities that theadmission of the evidence would bring the administration of justice into disrepute. [29] The Grant test requires the Court to assess the effect of admitting the evidence on society’s confidence in the justice systemhaving regard to the (

i) seriousness of the Charter-infringing conduct; (ii) impact on the Charter-protected interests of the Applicant; and(iii) society’s interest in the adjudication on the merits. [30] In considering the seriousness of the Charter-infringing conduct the Court in Grant held that a deliberate and egregiousCharter violation by the police will weigh in favour of exclusion of evidence, whereas a breach committed in circumstances where theofficer was otherwise acting in good faith will be a factor in not excluding the evidence. [31] In this case, I find the officers were acting in good faith.

Their uncontradicted evidence is that they happened to beresponding to a call in the apartment building when the disturbance broke out in the stairwell. They dealt with the men they observedyelling and arguing and who were in the immediate area of the distinct odour of marijuana. There was no suggestion the police targetedthese men or dealt with them for any reason other than the belief they were involved with the obvious odour of drugs in a public area. This was no roadblock or arbitrary traffic stop. The officers dealt with these men as a result of their actions drawing the officers’attention.

There was no allegation the police had an ulterior motive, or any indication that the officers had prior dealings with theApplicant or were relying on intelligence or background information about him. I accept Cst. Murphy’s evidence that the search of theApplicant was a pat-down search for weapons and not a search for evidence. There is nothing in the conduct of the officers thatcontradicts this stated intention. If there had been a Charter breach under s. 8 or 9 it would have been at the lesser end of seriousness,committed by officers acting in good faith.

A consideration of this factor would have weighed in favour of admitting the evidence. [32] The impact on the Charter protected interests of the Applicant involves a consideration of the extent to which the breachundermined the rights of the Applicant. As the Court stated in Grant, “The impact of a Charter breach may range from fleeting andtechnical to profoundly intrusive.” [7] [33] In this case, the Applicant was in a public stairwell of a large apartment building. He was conducting himself in a way thatdrew attention to himself.

The search of him did not intrude into his residence, nor did it involve more than a superficial examination ofhis body. The only physical intrusion on him was the lifting of his coat and sweater. The firearm found was immediately visible. Thesearch was a search of his person but was relatively superficial and did not have an adverse impact on his human dignity. I find thesearch was minimally intrusive and had a limited impact on the Charter protected interests of the Applicant.

I find this factor wouldweigh in favour of admitting the evidence. [34] The starting point for the third part of the Grant test begins with the statement in Grant that “Society generally expects that acriminal allegation will be adjudicated on its merits.” [8] The Court stated that “exclusion of relevant and reliable evidence mayundermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing theadministration of justice into disrepute.” In considering physical evidence, the Court noted that “reliability issues with physical evidencewill not generally be related to the Charter breach.

Therefore, this consideration tends to weigh in favour of admission.”[9] [35] In this case, the evidence sought to be excluded is physical evidence of a loaded, prohibited firearm found during theinvestigation of suspected drug use in the public area of a large apartment building. The evidence is essential to the trial of the case onits merits – the Crown has no evidence in the absence of this evidence.

I find that society’s interests in having this case adjudicated onthe merits weighs in favour of admission of the evidence. [36] In conclusion, if there had been a Charter breach in this case I would have held that on balancing the three factors in theGrant test the evidence should be admitted under s. 24(2) of the Charter. [37] For the reasons detailed above, the Charter Application is dismissed.

Released: June 24, 2014 Signed: “Justice Robert Wadden”