R. v. Stewart, 2012 ONCJ 689

July 30, 2012 Toronto: Metro West Citation: R. v. Stewart , 2012 ONCJ 689 ONTARIO COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - Jovel Jamoi STEWART ________________________________________________________________ Before Justice D. Oleskiw Heard on April 3 and June 6, 2012 Judgment Rendered: July 23, 2012 Reasons for Judgment Released: July 30, 2012 _______________________________________________________________________ Ms. MacGillivray ........................................................................................... for the Crown Mr.

Hebscher ......................................................................... for the accused Jovel Stewart __________________________________________________________________ D. Oleskiw, J.: I. Introduction 1 . Jovel Stewart stands charged that on April 26, 2011, he carried a concealed weapon, being a ball bearing gun. 2 . He brings a Charter application seeking exclusion of evidence obtained as a result of alleged breaches of his rights under sections 8, 9 and 10(

b) of the Charter . The Charter application was heard by way of a blended voir dire in the trial. II. The Evidence: 3 . At approximately 11:49 p.m. on April 26, 2011 Police Constables Rick White and Mark Luchetta were driving in a marked scout car on general patrol in the area of Keele Street and Lawrence Avenue West in Toronto. As they travelled north-bound on Keele Street at approximately 15 km per hour, they noticed three individuals “huddled in a triangle in an alcove” of the strip plaza at the corner of Keele and Flamborough. P.C.

White said it was their posture that bothered him and he felt something was going on in that triangle. 4 . Officer White made a point in his examination in chief that there was only one active business opened at the time. That was a cafe/tavern at the most southerly end of the plaza that was about 15 or 20 metres from the group. He believed that, with no store opened and no light, a reasonable person would not hang out in the dark like that. In cross-examination, he admitted that the Mr. Sub shop, directly beside the group, in fact, was opened at the time. P.C.

Luchetta confirmed that both businesses were opened at the time. 5 . In any event, the officers felt the need to speak to the three individuals because they were huddled in a corner of the plaza wearing dark, heavy clothes, including heavy coats and hoods, on this noticeably warm April night. The officers executed a u-turn, drove south passing the plaza again, after missing an entrance, and entered the parking lot from the south end near the opened tavern. The group of three immediately disbursed with two running northbound and one, the accused, walking southbound in the direction of the police.

As soon as the police entered the parking lot, the accused started to head west, away from the officers. The officers approached him. P.C. White’s Evidence

6 . Officer White testified that he jumped out of the scout car and immediately said to the accused, “hey, what are you doing here”? He said that he was approximately six feet away from the Mr. Stewart at the time he said this. The accused did not answer. P.C. White was very concerned at this time because he could not see Mr. Stewart’s left arm because that arm was not through the sleeve of his jacket. 7 . According to P.C. White, the next thing that happened was that he directed Mr. Stewart to get his hand out of his jacket, by saying, “Get your hand out of your jacket”. Mr.

Stewart hesitated and “bladed” to the right a little. P.C. White told him again to “get your hand out of your jacket”. P.C. White said Mr. Stewart was fidgety, looking in different directions, rarely made eye contact, bladed to the right and looked “almost scared”. However, Mr. Stewart complied with the demand and removed his hand from his jacket. P.C. White also told him to stop moving several times but he “wouldn’t listen to any of my commands”. P.C. White was not asked the question, but P.C.

Luchetta testified that, at the time the officers were talking to the accused, which would have included the time when Mr. Stewart was told to take his hand out of his jacket, the two officers were standing in front of the accused, an arm’s length away. The officers were standing beside eachother. The scout car was behind them. 8 . P.C. White testified that he then asked Mr. Stewart for his name. Mr. Stewart hesitated but then provided the officers with his correct name and address. P.C. White estimated that from the time of the stop to the time Mr.

Stewart gave his name and address was approximately 30 seconds or under one minute. 9 . With the name in hand, P.C. White went into the scout car and ran a CPIC check. Meanwhile, P.C. Luchetta was outside the scout car having a conversation with the accused. 10 . When he finished the computer check, P.C. White exited the scout car and had a further conversation with Mr. Stewart “about his behaviour”. He testified that he told Mr. Stewart that he was aware of his outstanding charge of fraud. P.C. White told him that he is not supposed to have any banking documents on his person. 11 . P.C. White then told Mr.

Stewart that he was going to do a pat down search. The accused said “No, I know my rights”. White said, “Tell me what s. 8 is”, to which the accused responded, “What is s. 8?” P.C. White then cited caselaw and told him that Regina versus Mann allows him to search for officer safety reasons. (In evidence, P.C. White explained that his understanding of R .v. Mann is that if someone is engaging in odd behaviour he can search for a weapon). 12 . P.C White testified that because of the accused’s movements and behaviour before the CPIC check, he believed he had something in the front part of his chest.

Accordingly, he started his search at his chest by extending his arm so that his hand felt Stewart’s right chest. He immediately felt what he believed was a gun. P.C. White uttered an expletive to which the accused responded with resignation. White yelled “gun”, took the accused to the ground, cuffed him, removed the gun and put it off to the side, and finished the search. He said that he then arrested the accused. He was advised of his right to counsel by P.C. Luchetta after he was placed in the rear of the scout car. 13 . The seized item was an air cartridge ball bearing gun. 14 .

Officer White testified that he did not consider Mr. Stewart to be detained until he advised him that he was going to be searched. P.C. Luchetta’s Evidence 15 . P.C. Luchetta testified that the officers wanted to ask the three individuals what their purpose was in huddling in the plaza. He testified that he asked the accused where he was going and where the other two individuals went, to which he received no answers from Mr. Stewart. 16 . Although P.C. Luchetta could not remember which officer spoke to Mr. Stewart first, he knew that he asked Mr. Stewart these questions.

He also agreed that the sequence of interaction was: the police asked the Mr. Stewart “Where is he going?”; his escort told him to take his hand out of jacket; the accused hesitated; police asked his name and he provided his name and address; Luchetta asked him why he is not cooperative; then accused took his hand out of his jacket. 17 . Officer Luchetta confirmed that while P.C. White went into the cruiser to do the CPIC check, P.C. Luchetta kept an eye on the accused and Mr. Stewart was not free to go at that time. According to P.C. Luchetta, Mr.

Stewart was detained as soon as he provided his name to the officers. 18 . When P.C. White finished the CPIC check, he advised both P.C. Luchetta and the accused that Mr. Stewart was on a recognizance with conditions. 19 . P.C. Luchetta also testified that Mr. Stewart kept “blading” even after both of his hands were visible. He said that it was hard to distinguish between Mr. Stewart taking a step back or turning to the right. 20 . Officer Luchetta did not mention P.C. White telling the accused that he was going to search him. Rather, P.C. Luchetta said that after P.C. White told Mr.

Stewart he had conditions, the accused became very agitated and started yelling repeatedly “ you can’t search me”. 21 . P.C. Luchetta confirmed P.C. White’s version of the manner of the search and arrest. He estimated that the total time from first contact with Mr. Stewart to the time of arrest was approximately 5 minutes. III. Findings and Applying the Law (

a) When did the detention crystallize? 22 . For the purpose of analyzing all of the Charter breaches claimed, it is necessary for this Court to make a finding as to when the

detention of Mr. Stewart crystallized. 23. As just outlined, Officer Luchetta testified that Mr. Stewart was detained as soon as he gave his name. He was clear that during thetime P.C. White was doing the CPIC check in the cruiser, the accused was not free to leave. P.C. Luchetta kept his eye on him. OfficerWhite, on the other hand, did not consider the accused detained until the point when he advised Mr. Stewart that he was going to searchhim. 24. Defence counsel takes the position that detention occurred as soon as Mr. Stewart was stopped.

Whereas Crown says theinvestigative detention did not commence until the accused was actually searched and the BB gun was found. 25. In R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32, the Court determined that detention under sections 9 and 10 of theCharter requires a “significant deprivation of liberty” where the deprivation of liberty may have legal consequences. (Grant paras. 29-31). Where no legal compulsion exists, psychological constraint will amount to detention when a reasonable person would conclude, byreason of the state conduct, that he or she had no choice but to comply.

The Court set out a number of factors at paragraph 44 that thetrial court may consider in making this determination. 26. Applying this test and considering the factors alluded to by the Court in Grant, I find that Mr. Stewart was detained prior to thesearch and indeed, from the time that he was directed to take his arm out of his jacket. On both officers’ accounts that happened early onin the interaction -- that is within approximately 30 seconds of being stopped. 27. From the moment they approached him, Mr. Stewart was being singled out for a focussed investigation. P.C.

White jumped out thescout car in order to effect this stop and the officers stopped Mr. Stewart as he was walking away from them. After not responding toP.C. White’s first question, as to what he was doing there, Mr. Stewart was directed to take his hand out of his jacket. At this time thetwo officers were standing within an arm’s length in front of this lone individual in a relatively dark parking lot with no other activity init. The officers persisted in their questioning and, although Mr.

Stewart was not readily forthcoming, he certainly felt compelled enoughto take his hand out of his jacket and to provide his correct name and address. P.C. Luchetta admitted that he maintained control overMr. Stewart while P.C. White was doing the CPIC check and that he was not free to go at that time. The officers never told Mr. Stewartthat he was free to go at any point during the encounter. 28.

Although the total interaction was only approximately 5 minutes, I am fully satisfied that within the first 30 seconds of thisencounter, the police officers had taken control of the accused and were determined to either elicit or locate incriminating evidence. Indeed, as P.C. Luchetta said in his evidence, as soon as he gave his name, they told Mr. Stewart that they were going to investigateuntil they were satisfied that nothing else was going on (other than him being subject to a recognizance).

Notwithstanding his reluctanceto provide information and a debate over case law, any reasonable person in the circumstances of Mr. Stewart would conclude by reasonof the state conduct that he had no choice but to comply with the police directives and submit to the search P.C. White performed onhim. (

b) Section 9: Was the Detention Arbitrary? 29. The officers suspected some kind of criminal activity from the moment they observed Mr. Stewart and the other two individualsfrom the scout car. Further throughout the entire interaction with Mr. Stewart they were suspicious of some kind of criminal activity butthey could not say what kind of criminal activity or that the suspicion was directed at any particular offence or type of offence. 30.

The reasons for suspicion provided by the officers were: 1) The area they were patrolling has had lots of criminal activity including break and enters, robberies and drug dealing; 2) They were immediately suspicious of the accused being huddled with two others in dark alcove beside a Mr. Subway shop in anotherwise largely closed plaza. (I note that it gives this Court some reason to be cautious of accepting P.C. White’s evidence that he hadto be reminded of his notes in cross examination regarding the fact that the Mr.

Sub shop was, in fact, opened for business at the time.The concern is that the location of the group of three was not quite as hidden as in the picture P.C. White initially drew for the court.) 3) Two others ran from the scene when the police arrived; 4) The accused was dressed in dark, heavy clothing -- although, they also admitted that people from different ethnic groups weardifferent clothing, including toques in the summertime. 5) The accused appeared nervous, was not cooperative, (as in providing no information except his name and address), and was“blading”. Both officers placed a lot of weight on Mr.

Stewart’s refusal to cooperate fully with the police. P.C. Luchetta in particular,emphasized that Mr. Stewart was “very confrontational with the police” meaning he “did not want to cooperate”, as compared to theother time Luchetta had interacted with him a few weeks or months earlier. Officer White thought Mr. Stewart was hiding something inpart because he did not want to talk to the police. For officer White’s part, when he came out of the cruiser after the CPIC check hewould have expected a ‘law abiding citizen’ to say “can I go ?’ but Mr. Stewart continued to avoid questions and eye contact and was“blading”.

The officers admitted in cross examination that they were aware that many young black men do not trust the police and arenervous in their presence. 31. In R. v. Mann, 2004 SCC 52 , [2004] S.C.J. No. 49, the Supreme Court of Canada established at paragraph. 45: Police officers may detain an individual for investigative purposes if there are reasonable ground to suspect in all of the circumstancesthat the individual is connected to a particular crime and that such detention is necessary.

In addition, where a police officer hasreasonable 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 ofthe detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner....The investigative

detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed bythe police. [...These powers are distinguished from arrest associated powers.] [emphasis added] 32. At paragraph 34 of Mann the Court stated: The evolution of the Waterfield test, along with the Simpson articulable cause requirement calls for investigative detentions to bepremised upon reasonable grounds.

The detention must be viewed as reasonably necessary on an objective view of the totality of thecircumstances, informing the officer’s suspicions that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.[emphasis added] 33. In Mann the Court was clear that it was not establishing a general power of investigative detention.

Rather, the power of the state tointerfere with an individual’s right to walk the streets free from state interference, is limited to the circumstances outlined above -- that iswhen there is a clear nexus between the individual and a recent or on-going criminal offence. Further, Mann did not create a free-standingpower to search individuals police find on our streets. Rather, the search power for safety is one that is incident to a lawful investigativedetention. 34. As indicated, the Crown took the position that the investigative detention did not commence until the time of the search.

Further,the Crown in her submissions, attempted to paint the investigative detention as a detention for the purpose of investigating a breach ofMr. Stewart’s recognizance conditions. I reject this argument because the evidence simply does not support the submission that theofficers were detaining Mr. Stewart for the purposes of investigating a possible breach of recognizance. Although at one point in hisevidence, P.C.

White implied that he was investigating Stewart for non-compliance with his recognizance by saying that he thoughtStewart “might have banking documents on his person but that was not his main concern at the time”, he agreed in cross examinationthat he did not have reasonable grounds to suspect that Mr. Stewart was carrying banking documents on his person at the time. Hetestified that he believed he had reasonable grounds to suspect that Mr. Stewart was involved in some kind of criminal activity -- but hecould not say what kind.

At the time he conducted the search he did not believe that the offence was robbery or another violent offence ofsome type. 35. As for P.C. Luchetta, he was clear in his evidence that at time of the search, to his knowledge they were not investigating and didnot suspect a violation of any conditions of Mr. Stewart’s recognizance. He said that there was nothing from the CPIC check that wouldprovide further grounds (other than confirming A’s name as person Luchetta had dealt with earlier). 36. Notwithstanding their evidence that Mr.

Stewart was “blading” throughout their encounter, it is noteworthy that neither officerasserted that he had a reasonable suspicion that the suspected crime was possession of any kind of weapon. 37. I find that the investigative detention in this case exceeded the power authorized by Mann. The facts known to the police at thetime of the detention did not ground a reasonable suspicion that the accused was connected to a recent or on-going criminal offence. Theywere not investigating a particular crime. 38. Further, the police could not rely on the “high crime area”.

As Justice Iacobucci said in Mann at para. 47: The presence of an individual in a so-called high crime area is relevant only insofar as it reflects his or her proximity to a particularcrime. The high crime nature of a neighbourhood is not by itself a basis for detaining individuals. 39. Nor could they rely upon Mr. Stewart’s silence (or reluctance to talk), a right they did not inform him of but one which heundoubtedly had during the detention. As the Court said in Mann at paragraph 45; an investigative detention “does not impose anobligation on the detained individual to answer questions posed by the police”.

Even P.C. Luchetta’s previous experience with Mr.Stewart as a so called cooperative accused did not entitle him to rely on his current refusal to answer the officers questions. 40. Notwithstanding their admissions that people of different ethnicities sometimes dress in heavy clothing during warm weather andthat young black males are sometimes nervous around police officers, these officers chose to use these factors as grounding suspicionsabout Mr. Stewart. I find that these factors do not ground a reasonable suspicion in this case. 41. P.C.

Luchetta admitted that the so called “blading” that the accused was doing could be interpreted as a step back or turning to theright. He said it was hard to distinguish between the two actions. My assessment of the evidence is that these actions by Mr. Stewartcould have been his expression of his nervousness and reluctance to interact with the police. In any event it was not the officers’evidence that they suspected - reasonably or otherwise - that the offence the accused was suspected of was possession of a weapon, orany other violent offence, prior to the search. 42.

I find that the hunch that the officers had that the accused was involved in some kind of criminal activity based on the accusedstanding in a darkened area of a strip mall at night, beside an open subway sandwich shop with two others who chose to run when thepolice arrived and the accused’s subsequent nervous demeanour while interacting with the police does not pass the objectivelyreasonable test for suspicion of a particular offence. 43. The Supreme Court in Grant confirmed that detention, in the absence of reasonable suspicion, is unlawful and therefore arbitraryfor the purposes of s. 9 of the Charter.

In this case, I find that the detention was arbitrary and violated Mr. Stewart’s rights under s. 9 ofthe Charter. (

c) Violation of s. 10 44. In R. v. Suberu, 2009 SCC 33 , [2009] S.C.J. No. 33 the Supreme Court of Canada established that the right to counsel

arises immediately upon detention. The officers in this case did not inform Mr. Stewart of his right to counsel until after they took him tothe ground and arrested him. Further, they did not advise him of the reason for his detention. There was no attempt to comply with s.10 at the investigative detention stage. There was a clear violation of Mr. Stewart’s s. 10 (

a) and (

b) rights. (

d) Violation of s 8 45. The only possible legal authority for the search of the accused in this case was if it was incidental to a lawful detention. Since Ihave found that this was not a lawful detention, the search was not authorized by law and, as such was unreasonable. It constituted aviolation of Mr. Stewart’s right to be secure against unreasonable search as guaranteed by s. 8 of the Charter. (e) Section 24(2) of the Charter

i) Seriousness of Charter Infringing Conduct 46. Applying the Grant test, I must first consider the seriousness of the Charter infringing conduct. 47. In my view, the officers behaviour displayed serious disregard for the Charter rights of Mr. Stewart. The officers’ misconduct isserious, first, because of the multiplicity of breaches. No less than four Charter rights were breached in one brief encounter with a youngblack man who, based on the facts known to the police prior to the unreasonable search, was simply standing outside a strip mall withtwo others at night. 48. The fact that P.C.

White believed that he is authorized to conduct a pat down search of a suspect for officer safety if a person isengaging in “odd behaviour” does not excuse his conduct in this case. Here, the search was done without reasonable grounds to detainMr. Stewart in the first place. As the Court reminded us in Grant, at paragraph 75, “ignorance of Charter standards must not berewarded or encouraged and negligence or wilful blindness cannot be equated with good faith.” 49. Further, as the Supreme Court of Canada said in R. v.

Buhay, 2003 SCC 30 , [2003] 1 S.C.R. 631 at paragraph 59, anofficer’s subjective belief that the accused’s rights were not affected does not make the violation less serious, unless his belief wasreasonable... good faith cannot be claimed if the Charter violation is committed on the basis of a police officer’s unreasonable error orignorance as to the scope of his or her authority. 50.

Finally, in Mann, the Supreme Court signaled that because these kinds of investigative stops carry the potential for abuse that isinherent in their low visibility exercise of discretionary power, it is incumbent upon the courts to take seriously the violation of asuspect’s rights in the course of such an investigative stops. 51. The seriousness of the Charter breaches in this case militates in favour of exclusion of the evidence. ii) The impact of the breaches on the Charter protected interests of the accused: 52.

Although the physical search that brought the police directly to the BB gun was not extremely intrusive or involve significantrestraint, it nonetheless invaded Mr. Stewart’s bodily integrity and autonomy. The multiple infringements starting with the arbitrarydetention, the failure to advise him of the reason for his detention and that he had a right to counsel upon detention and then theunauthorized search had a significant impact on Mr. Stewart’s liberty, autonomy and privacy interests. The discovery of the evidencearose directly from the breaches.

This factor weighs toward the exclusion of the evidence. iii) Society’s interest in adjudication on the merits 53. This third line of inquiry requires the court to consider society’s interest in adjudication on the merits. 54. The evidence of the BB gun in this case is real and reliable. It is central to the Crown’s case and the accused cannot be convictedwithout it. 55. Criminal conduct involving the use of weapons, especially handguns, is a serious and growing social danger, as has beendemonstrated recently in Toronto and elsewhere.

This case, however, is about possession of a BB- gun with no other criminal conductalleged. While a BB-gun is certainly not a toy and is capable of causing real harm, it is not a firearm. In many circumstances it is anobject that may not even be considered a weapon. There is no suggestion in the evidence before me that this BB-gun was loaded. So,while the charge is serious, it is certainly not in the category of the most serious charges. Indeed, the Crown proceeded by way ofsummary conviction on the charge. iv) Balancing 56.

The focus of the s. 24(2) analysis in deciding whether the admission of the evidence obtained by the Charter breaches would bringthe administration of justice into disrepute must be on the long term repute of the administration of justice. A decision to admit evidenceobtained as a result of multiple breaches that have a serious effect on the constitutional rights of individuals sends the message that thesebreaches are condoned by the Court.

As the institution responsible for the administration of justice, this Court cannot appear to condonethe unlawful police conduct in this case by admitting into evidence, the fruits of that conduct. 57. Weighing all the factors I am required to weigh under s. 24(2), I have determined that the evidence of the accused possession ofthe BB-gun and any utterances upon the police finding it must be excluded from evidence. 58. With the evidence excluded, the Crown cannot establish the guilt of the accused to the offence of carrying a concealed weapon. The accused is acquitted.

Dated: July 30, 2012 _________________________ Justice D. Oleskiw