r v. DARRIN GREEN, 2014 QCCQ 8827

R. c. Green 2014 QCCQ 8827 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL CRIMINAL AND PENAL DIVISION No: 500-01-011952-089 DATE: September 19 th , 2014 ______________________________________________________________________ BEFORE THE HONOURABLE JUSTICE ROBERT MARCHI, J.C.Q. ______________________________________________________________________ THE QUEEN RESPONDENT - Prosecutor v.

DARRIN GREEN PETITIONNER - Accused DECISION ON A MOTION TO EXCLUDE EVIDENCE PURSUANT TO SECTIONS 7, 8, 9 and 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS ______________________________________________________________________ [ 1 ] The accused Darrin Green (the Petitioner) has pleaded not guilty to 4 counts included in an indictment.

All those counts relate to the seizure in the possession of the Petitioner of a restricted weapon, to wit, a revolver Taurus, cal. 22 LR, model 94 (the firearm). [ 2 ] The factual context which gave rise to the laying of the accusations against the Petitioner is quite simple. [ 3 ] Following the reception of information from a coded source to the effect that one Darren Green was in possession of a firearm and following some background checks made by a member of the Montreal Police Department (SPVM), the Petitioner was arrested on the street by members of the SWAT team of the SPVM and found in possession of the firearm.

The latter was seized in one of his pockets. [ 4 ] At the outset of his trial, the Petitioner has filed a motion to exclude the evidence seized in his possession in virtue of Sections 7 , 8 , 9 and 24(2) of the Canadian Charter of rights and freedoms ( the Charter). [ 5 ] His position is to the effect that he was arrested by the police without reasonable grounds to do so. He thereby seeks the exclusion of the firearm seized in his possession. [ 6 ] A voir-dire was therefore held. Only one witness was heard during the voir-dire, Sergent-détective Isabelle Godin-Tremblay (Godin –Tremblay).

The Evidence in the Voir-Dire [ 7 ] Godin-Tremblay explained to the Court what grounds led to the arrest of the Petitioner and the circumstances of his arrest. [ 8 ] On the day of the arrest, Godin-Tremblay is part of the narcotics squad of the SPVM for the west part of town. [ 9 ] On that same day, a coded source of the SPVM informed its controller, Sergent-détective Renaud (Renaud), that one Darren Green, aged 19 or 20, 5'11" and 210 pounds, was always (in French, the witness uses the word " souvent " – often – and not "toujours") walking on foot between the intersections of De Coursol and Des Seigneurs with a firearm in his possession every time he exited his residence.

Godin-Tremblay qualified the coded source as trustworthy and added that the information it had provided in the past was found to be true and had led to the laying of accusations. [ 10 ] After getting the information from the source, Godin-Tremblay first made verifications into the CRPQ, a Quebec government data bank often referred to by the police, and found a Darrin Green, date of birth April 6 th , 1989. [ 11 ] She then referred to the "Force Field" system, which is an internal data base of the SPVM.

She again found a Darrin Green who was residing at 1765 Elgin, an address in Little Burgundy in Montreal which is close to De Coursol and Des Seigneurs streets. She retrieved the photograph of the Darrin Green she found and showed it to the the source. Upon being shown the photograph, the source spontaneously identified the person as the Darrin Green he had referred to in the information provided to Renaud. An operation was then

put together to locate "the" Darrin Green, with the SWAT team in assistance since a firearm was involved. [ 12 ] The Petitioner was located at 16:57 by police officer Romero.

Before Green was intercepted by the SWAT team, Godin- Tremblay identified the suspect as the person on the photograph, as the person identified by the source as the "good" Darrin Green, the one he referred to in his information. [ 13 ] She also noticed that the Petitioner made several " security touches " while walking (constantly touching his hip, his front pocket) and that he had an abnormal way of walking (a small step followed by a longer one).

According to Godin-Tremblay, based on her experience and on the training she had as a police officer, those are two characteristics that can indicate that the person has a firearm in his pocket. She admitted that those observations lasted only a few minutes but for her, those characteristics could be used to confirm the information provided by the source to the effect that the suspect was indeed carrying a firearm. [ 14 ] At 17:15, the SWAT team intercepted the Petitioner at the corner of De Coursol and Des Seigneurs.

It then informed Godin- Tremblay of Green's interception and she proceeded to the place of interception a minute later where she put the Petitioner under arrest. [ 15 ] According to Godin-Tremblay, the Petitioner was then lying on the ground on his belly. The SWAT team then turned the Petitioner towards her which permitted her to see the handle of a firearm. She then proceeded to seize the firearm and put the Petitioner under arrest. The firearm seized was a loaded restricted weapon, was " chambrée ", and contained 9 bullets.

She identified the Petitioner sitting in the courtroom as the person she then arrested. [ 16 ] According to Godin-Tremblay, the grounds for proceeding to the arrest of the Petitioner were the following: • The information provided by the coded source on the 16 th of September 2008 about the suspect, including the specifics ( les détails sur la personne ), like his name, his age, his height, his weight, and where he was always walking.

According to the witness, this is much different from the instances where the informer simply puts forward a nickname for example. • The fact that some of the information provided by the source was confirmed by her verifications, like the name, the approximate age, the height and the weight. • The fact that those verifications showed that the Petitioner was residing close to the streets where the coded source said the suspect was always walking. • The fact that the photograph of the Darrin Green retrieved from the "Force Filed" was one of a Darrin Green with physical characteristics generally corresponding to the ones originally provided by the source and the fact that the source identified the person on the photograph as the Darrin Green he was referring to. • The fact that the suspect was arrested on the very streets where the coded source said the suspect was always walking. • The two characteristics that Godin-Tremblay noticed on the Petitioner that, according to her, could correspond to a person carrying a firearm in his pocket. • The fact that she identified the suspect on the street as the person on the photograph before the suspect being arrested. [ 17 ] She cannot say if she arrested the Petitioner before or after she saw the firearm, which is of no relevancy since the Petitioner had already been "intercepted" and detained by the SWAT team.

Analysis [ 18 ] The primary issue to be decided is if the grounds invoked for the arrest of the Petitioner constitute reasonable grounds under Section 495(1)

a) of the Criminal Code , which regulates the power of arrest without a warrant by a peace officer and which reads as follows: 495.

(1) A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; [ 19 ] Should those grounds not be reasonable, and therefore, should the arrest be illegal, arbitrary and contrary to

Section 9 of the Charter , pieces of evidence then discovered and seized could be excluded under Section 24(2) of the Charter . [ 20 ] Regarding the utmost importance for the police officers to have reasonable grounds before arresting a suspect without having previously obtained a warrant, Justice Cory, in Storrey [1] , wrote as follows: Section 450(1) makes it clear that the police were required to have reasonable and probable grounds that the appellant had committed the offence of aggravated assault before they could arrest him.

Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence.

In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest. The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This need requires that there be a reasonable balance achieved between the individual's right to liberty and the need for society to be protected from crime.

[21] On the other hand, Justice Cory further adds that the arresting officer does not need not establish more than reasonable andprobable grounds to justify an arrest. [22] More recently, in Lévesque Mandanici, Judge François Doyon, writing for an unanimous Court, recalled the following about thetest regarding the qualification of what are reasonable grounds[2]: Le test portant sur la qualification des motifs raisonnables est à double volet : l’un est objectif, l’autre est subjectif.

Cela signifie quel'arrestation doit non seulement être raisonnablement justifiée, mais encore faut-il que l'agent de la paix croie que tel est le cas. [23] Based on the information provided by the coded source, including the identification of the person on the photograph as beingthe "right" Darrin Green, information confirmed in part by her further verifications and completed by the observations she made on thesuspect minutes prior to his arrest, Tremblay-Godin believed that she had reasonable grounds to arrest the Petitioner.

The subjectivebelief of the arresting officer is therefore met. [24] As to the objective part of the test, Judge Doyon wrote as follows[3]: Ces motifs doivent être objectivement raisonnables et s'imposer à une personne placée dans la même situation que l’agent.

La seuleintuition ne peut constituer des motifs raisonnables, tout comme d’ailleurs les simples soupçons: […] [25] Moreover, the fact that the police officers would have seized a weapon in possession of the Petitioner after his arrest (andtherefore confirming the initial belief they had before the arrest) is irrelevant when assessing the sufficiency of the grounds: such a"positive" result after the arrest cannot be used to render reasonable grounds that were not reasonable before the arrest.

In other words,the discovery of the evidence initially sought by the officers cannot be used to bolster otherwise insufficient grounds. Again, I quotefrom Lévesque Mandanici[4]: En conclusion, au moment de l’arrestation, le policier avait une intuition, des soupçons. Certes, ils se sont avérés exacts. Cela ne peuttoutefois les transformer en motifs raisonnables au moment de l’arrestation. Comme le mentionne le juge Doherty dans R. c.

Simpson,(1993) (ON CA), 79 C.C.C. (3d) 482 : « A "hunch" based entirely on intuition gained by experience cannot suffice,no matter how accurate that "hunch" might prove to be […] A guess which proves accurate becomes in hindsight a "hunch" ». [26] The Petitioner is of the opinion that the police officers did not have the reasonable grounds required to arrest him, essentially forthe following reasons: the reliability of the source was not demonstrated, the source of knowledge of the source has not been shown, andthe officers should have pursued their investigation and acquire more grounds. [27] While the evidence of a tip or information provided by a source, by itself, is insufficient to establish reasonable and probablegrounds, the reliability of the information provided must be assessed by recourse to the "totality of the circumstances".

There is noformulaic test as to what that means. The Court should look to a variety of factors, including the degree of detail of the "tip" orinformation, the informer's source of knowledge and any indicia of the informer's reliability such as past performance or confirmationfrom other investigative sources[5]. [28] I disagree with the Petitioner that the grounds for his arrest were insufficient and I believe that, given the totality of thecircumstances, Godin-Tremblay did have reasonable grounds to proceed to his arrest: • Firstly, we are not dealing here with an unknown first-time "out of the blue" tipster.

According to the evidence, the informationcame from a coded source who had, in the past, provided information that revealed to be true and that led to the laying of accusations.While that factor cannot by itself be sufficient to establish the reliability of the informer, it can be taken into consideration, along withother factors, when examining the "totality of the circumstances". Judge Jean-Louis Baudouin, then at the Court of Appeal, wrote in R. c.Périgny[6]: En somme l'appelant plaide que l'absence de détails supplémentaires sur l'informateur rend la déclaration non fiable.

D'après lui, celle-ciaurait dû contenir des précisions sur les dossiers exacts ayant mené, grâce à l'informateur en question, à des arrestations; des détails surla nature des accusations portées dans ces dossiers; des clarifications sur l'époque où ces affaires ont eu lieu; des éclaircissements sur larémunération accordée à l'informateur pour son travail, etc... Avec égard, je ne puis partager ce point de vue.

Nous ne sommes pas ici en présence de renseignements purement anonymes, commedans l'affaire Bennett précitée, mais d'informations communiquées par un informateur «professionnel» (si je peux me permettre d'utiliserce terme). Fournir les détails que recherche l'appelant me paraît d'abord risquer de permettre l'identification de cet informateur, ce quiserait, d'une part, contraire aux règles de droit en la matière concernant le privilège de l'anonymat (R. c.

Scott, (SCC),[1990] 3 R.C.S. 979 ) et, d'autre part, susceptible de réduire considérablement la marge de manoeuvre des corps policiers dans la luttecontre la drogue. • Secondly, while the source of the knowledge of the informer is unknown, the degree of detail of the information is high: name ofthe suspect, age, height, weight and the precise area where he proceeds. • Thirdly, much of the information provided by the source was confirmed by the various verifications made by Godin-Tremblay,i.e. name of the suspect, his approximate age, height, weight[7]. • Fourth, the fact that his address is located close to the streets mentioned by the informer. • Fifth, the identification by the source of the person appearing on the photograph [identified in the data bank as Darrin Green]retrieved from the police data bank as being the person targeted by the information, i.e. the "right" person, the "right" Darrin Green.

Andthe fact that Godin-Tremblay identified the suspect as being the "right" person before proceeding to his arrest. • Sixth, the area where the Petitioner was located, De Coursol and Des Seigneurs, corresponding to the information provided by the

source. • And lastly, the uncontradicted evidence provided by Godin-Tremblay following her observations of the Petitioner minutes prior to his arrest, contributing, together with the other pieces of information, to raise reasonable grounds that the Petitioner was, at that specific time, in possession of a weapon. In her pleadings, Counsel for the Petitioner submitted that the period of observation by Godin-Tremblay was too short.

Still, that period was long enough to permit the officer to notice several safety touches by the suspect and the fact that his way of walking was abnormal, adding another factor to be considered in the "totality of circumstances". [ 29 ] All those elements, considered together, given the totality of the circumstances, are "objectivement raisonnables et s'impose[nt] à une personne placée dans la même situation que l’agent [8] ". [ 30 ] As to the other argument raised by the Petitioner, that the police officers should have pursued their investigation further to acquire more grounds, given my conclusion on the reasonable character of the grounds that permitted the arrest of the Petitioner, there is no need to deal with it, since the police officer does not need to show more than reasonable grounds to justify an arrest [9] .

Further investigation by the police officers might have added more grounds to grounds already reasonable, nothing more. [ 31 ] I therefore conclude that the arrest of the Petitioner was legally made and that the ensuing search and the seizure of the firearm were, as well, legally made. [ 32 ] In his Motion, the Petitioner also claims a stay of proceedings. While Counsel for the Petitioner did not refer to that remedy in her pleadings, given my conclusion on the Motion to exclude evidence, the part of the Motion claiming that remedy is also dismissed.

FOR ALL THOSE REASONS: the Motion to exclude evidence is dismissed. __________________________________ ROBERT MARCHI, J.C.Q. M e Sharon Sandiford Attorney for the Petitioner M e Marilène Laviolette Attorney for the Prosecution Hearing dates : November 5 th , 2013; April 15 th , 2014, June 5 th , 2014.