2021 QCCA 1541, 2021 QCCA 1541

Collins c. R. 2021 QCCA 1541 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007237-199 ( 500-01-191446-191, 500-01-191448-197 ) MINUTES OF HEARING DATE: October 8, 2021 CORAM: THE HONOURABLE GUY GAGNON, J.A. PATRICK HEALY, J.A. SUZANNE GAGNÉ, J.A.

APPELLANT COUNSEL jahvon collins Mtre victoria nix ( Boro, Frigon, Gordon, Jones ) absent RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre jean-philippe mackay ( Directeur des poursuites criminelles et pénales ) absent On appeal from a judgment rendered on November 15 and 21, 2019 by the Honourable Mélanie Hébert of the Court of Québec, Criminal and Penal Division , District of Montréal . NATURE OF THE APPEAL: Culpabilit y – Seven counts related to the possession or sale of prohibited weapons – An offense punishable on

summary conviction – Failure to comply with probation order. Clerk at the hearing : Lesly Ramos Courtroom: Pierre-Basile-Mignault

HEARING 9:01 Commencement of the hearing. Continuation of the hearing held on October 7, 2021 The parties were excused from appearing in Court. BY THE COURT: Judgment – see page 4. Conclusion of the hearing. Lesly Ramos, Clerk at the hearing JUDGMENT [ 1 ] The Appellant Jahvon Collins appeals from guilty verdicts rendered on November 21, 2019 by a Court of Quebec judge (the Honourable Mélanie Hébert) pertaining to illegal possession of a firearm and to breaches of Court and probation orders. [1] These verdicts follow a judgment [2] rendered on November 15, 2019 by the same judge which, following an analysis under sections 8 and 10(

a) of the Canadian Charter of Rights and Freedoms (the “ Charter ”), [3] refused to exclude from evidence a loaded firearm possessed by the Appellant at the time of his arrest. [ 2 ] The Appellant raises three grounds of appeal. First, he argues that the officers’ conduct following their knowledge of an outstanding warrant for his arrest violated his right to be informed promptly of the reasons for his arrest as guaranteed by s. 10(

a) of the Charter . Second, he invokes the absence of police-safety reasons to justify their search incident to his lawful arrest and their subsequent finding of a loaded firearm. Third, he believes the judge erred in her rejection of his testimony. *** 1) The right to be informed promptly and sufficiently of the reasons of arrest [ 3 ] The Appellant claims that the breach of his s.10(

a) right is both temporal and informational. The Court of Appeal for Ontario specifies that a “ temporal breach occurs if an arrested or detained person is not promptly informed of the reasons for their detention’’. The court adds this remark: An “informational” breach arises if the reasons for their detention are not adequately communicated. [4] [ 4 ] In this case neither component was breached by the officers. Here is why. [ 5 ] Officers Paquet and Samaras intercepted a vehicle because two of the four occupants (one of the two being the Appellant) were seen not wearing a seatbelt.

After conducting regular ID verifications, the officers were informed of the existence of a valid outstanding warrant for the arrest of the Appellant for failing to appear in court on a charge of obstruction of a peace officer. Paquet therefore asked the Appellant to step out of the vehicle, but the latter refused, and, on the third request only, Paquet informed him of the existence of an arrest warrant issued against him and then tried to proceed to his arrest in what he described as a tense setting.

All these events took place over a very short period of time (under a minute). [ 6 ] Regarding the temporal component, the Appellant erroneously alleges that the application of s. 10(

a) of the Charter was triggered as soon as Paquet returned from the police vehicle and was speaking again with him.

Rather, the Appellant blatantly refused to step out of the vehicle on the first two requests from Paquet, which illustrates that he did not believe that he had no choice but to comply. [5] The Appellant knew he was under arrest at the third request, which is when Paquet informed him of the existence of an outstanding warrant. [ 7 ] During his testimony, Paquet explains the reasons for which he did not immediately put the Appellant under arrest: […] Parce qu’il faut comprendre qu’à ce moment-là, ils sont quatre dans le véhicule.

Je ne veux pas, ne serait-ce qu’attiser la situation ou je ne veux pas non plus que les autres personnes à l’intérieur du véhicule soient au courant du fait qu’il y a un mandat d’arrestation. [6]

[ 8 ] The Appellant then refused to get out of the car while a passenger had decided to lock the doors of the vehicle. The judge describes in these words the evolution of the situation: [22] The atmosphere in the Dodge Charger was becoming increasingly strained as the intervention progressed. It was a tense situation and the people in the car were getting louder, and even yelling. At trial, Officer Paquette explained that it was important that the intervention be done quickly for safety purposes. Officers Samaras and Paquette were outnumbered and they did not have control over the car.

The more the intervention dragged on, the more risks they were facing. [23] While this was occurring, Officer Samaras was standing beside the window of the driver. Realizing that the doors were locked, Officer Samaras asked the driver to unlock the doors. She did not comply even though Officer Samaras was convinced that she understood his request.

As the window was open, he reached into the car and unlocked the doors. [7] [ 9 ] However, due to the tense situation inside the vehicle and the lack of cooperation from the Appellant, the officers’ expressed safety concerns were sufficient to justify proceeding to the Appellant’s arrest only once he was outside of the vehicle, as the officers were outnumbered and the occupants were in the vehicle while the officers had no control of it and thus and could not prevent the driver from speeding away. [8] [ 10 ] Several additional safety issues justified the fact that Paquet did not elaborate immediately about the outstanding warrant.

He avoided an unproductive discussion on a matter that, according to the evidence, the Appellant does not even recall. Otherwise, to continue along this path would have exacerbated palpable tensions. [ 11 ] Paquet describes in these words the dangerous situation he had to face: Mais monsieur refuse également. Il refuse de nouveau. Et puis je vous dirais qu’à ce moment-là, l’ambiance dans le véhicule, je la décrirais comme étant tendue. Parce que, là, on entend beaucoup de… j’entends les gens, les autres occupants du véhicule qui se mettent à parler. Ça crie un petit peu plus, le ton monte.

Donc, il y a quand même une urgence pour nous d’agir afin d’éviter que la situation dégénère. […] […] Je peux pas prendre la chance que cette dernière [the driver] quitte et puis que… qu’il arrive quoi que ce soit. Pour nous, il y a urgence d’agir quand même. […] […] Oui, la tension monte puis la tension monte subséquent de l’intervention. Donc, chaque seconde qui avance, je peux sentir la tension qui monte d’un cran.

Et puis, c’est…moi, je peux pas me permettre que monsieur Collins…il faut que ça se fasse rapidement parce que je veux pas donner à monsieur Collins ou à n’importe quel autre occupant du véhicule une idée qui pourrait mettre la sécurité de quiconque en danger. [9] [ 12 ] Regarding the informational component, the Supreme Court established in R. v.

Gamracy , that “when the arrest derives from an outstanding warrant, the duty of the arresting officer is fully discharged by telling the arrested person that the reason for his arrest is the existence of an outstanding warrant therefor”. [10] [ 13 ] What is more, the outstanding warrant for the arrest of the Appellant pertains solely to his failure to appear before a court. In other words, he was not arrested because of the offence of obstruction per se .

Therefore, the Appellant was aware of the risk associated with his refusal to be arrested from the moment Paquet informed him of the existence of a valid outstanding warrant for his arrest. [ 14 ] In view of the evidence, the following conclusions of the judge do not contain any errors in law: [91] There are two reasons why the Court concludes that Mr.

Collins' right to be informed of the reasons for his arrest was not breached even if Officer Paquette did not immediately give him all the details concerning to the outstanding warrant. [92] First, the majority of the Supreme Court decided, in Gamracy , that in a situation where the arresting officer's power to proceed to an arrest flows from an outstanding warrant, the officer fully discharges his obligation to advise the person being arrested of the reason for his or her arrest by telling that person that there is an outstanding warrant for his or her arrest.

While this decision was rendered before the Charter , it is the Court's opinion that the ratio decidendi is still applicable considering that the purpose of

section 10 (

a) of the Charter is to ensure that the reasons provided to the person arrested sufficiently convey the general extent of that person's jeopardy. [93] Second, the obligation to promptly provide reasons for an arrest is not absolute and security concerns may justify a delay in providing this information. In the matter at hand, such concerns were present and justified a delay in providing Mr. Collins more information on the warrant. [11] [ 15 ] As such, the Appellant’s s. 10 (

a) right was not infringed. 2) The search incident to arrest and the security concern [ 16 ] The Appellant claims that the search incident to his arrest which led to the discovering of a firearm infringed his right to be secure against unreasonable search or seizure guaranteed by s. 8 of the Charter . This argument must also fail. [ 17 ] In R. v. Stillman , the Supreme Court set out a three-pronged test to determine whether a search was validly undertaken pursuant to the common law power of search incident to a lawful arrest: (1) the arrest must be lawful, (2) the search must have been conducted as

an “incident” to the lawful arrest, and (3) the manner in which the search is carried out must be reasonable.[12] At trial and on appeal, theAppellant contests only the judge’s finding to the effect that the search was truly incidental to the lawful arrest. The Supreme Courtarticulated in R. v. Caslake the following limits to the second component: [25] In

summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common lawdoctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that thesearch must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulatedin Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose,why they searched. They do not need reasonable and probable grounds.

However, they must have had some reason related to the arrestfor conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance donot automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. However, that inference may be rebutted by a proper explanation.[13] [Emphasis added] [18] Throughout his whole interaction with the officers, the Appellant was wearing a fanny pack around him.

When Paquet tried toget the Appellant out of the vehicle to proceed to his arrest, the latter tried by all means to get rid of it with his left hand while offeringwhat Paquet describes as passive resistance. Samaras, by pulling on the strap of the bag, broke it; the Appellant reacted immediately bythrowing the bag to the other backseat passenger, Mr. Birotte. At this very moment, the Appellant stopped resisting to his arrest andSamaras proceeded to handcuff him.

Simultaneously, Birotte, looking stunned, stretched his hands to allow Paquet to take control of thefanny pack who, as soon as he got a touch – and without any opening or further handling of the bag – felt the shape of a firearm inside it.Therefore, the search cannot be qualified as invasive. [19] For both officers, taking control of the fanny pack was important because the Appellant, by trying to get rid of it on severalattempts, behaved in a manner that let them believe that he had something he did not want them to seize (e.g. a weapon or drugs) and thatcould constitute evidence at trial.

Moreover, the presence of three other occupants was another important factor, as they could takecontrol of the weapon and use it, take away the drugs inside the bag, or even contaminate the elements inside the fanny pack that belonged to the Appellant.[14] [20] These established elements easily meet the threshold of a peace officer having “some reasonable basis” of having a valid purpose associated with a search incidental to arrest, namely here police safety,[15] as both officers testified they were concerned that thefanny pack could contain something dangerous.

What is more, in addition to believing the officers relating to the subjective component of the reason behind the search, the judge reviewed all of the circumstances which could objectively justify their actions.[16] [21] The recent case of R. v. Santana[17] of the Court of Appeal for Ontario submitted by the Appellant is easily distinguishable fromthe matter at hand.

In Santana, the accused was also intercepted in the context of a traffic violation and then arrested pursuant tooutstanding warrants, but the contested evidence (being the accused’s jacket which was inside the intercepted vehicle and containedfentanyl) was taken by police after the accused was handcuffed and placed in the backseat of a police vehicle with the intention ofdriving him to the police station.

The officer testified wanting to gather the accused’s belongings as he anticipated that he would be held in custody overnight, but added in cross-examination that he thought he was entitled to search the immediate area “for officer safety”.[18] Justice Doherty stated that the search for evidence had to be in respect to the outstanding warrants – which had nothing to do with drugs–, and that the officer “had no reason to believe any officer or member of the public was in danger from anything in the vehicle.

Clearly, the [accused] posed no danger as he was in handcuffs in the back of the police cruiser.”[19] Unlike Santana, Paquet and Samarasjustifiably had safety concerns at the time of the arrest. [22] Hence, the judge’s findings are unassailable. 3) Credibility of the Appellant [23] It is well established in Canadian law that an appellate court must show great deference to a trial judge’s findings on credibilityand reliability absent a palpable or overriding error, as summarized below by the Supreme Court in R. v.

Gagnon: [10] There is general agreement on the test applicable to a review of a finding of credibility by a trial judge: the appeal court mustdefer to the conclusions of the trial judge unless a palpable or overriding error can be shown. It is not enough that there is a difference ofopinion with the trial judge (Schwartz v. Canada, (SCC), [1996] 1 S.C.R. 254, at paras. 32-33; H.L. v. Canada(Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, at para. 74).

A succinct description of the overall approach appears in R. v.Burke, (SCC), [1996] 1 S.C.R. 474, at para. 4, where this Court stated that “it is only where the Court has consideredall of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that thecourt can . . . overturn the trial court’s verdict”. With respect to the credibility of witnesses, the same standard applies. In Lavoie v. R.,[2003] Q.J.

No. 1474 (QL), at para. 37, Nuss J.A. of the Quebec Court of Appeal stated that a trial judge’s assessment of the credibilityof witnesses “will not be disturbed unless it can be demonstrated that he committed a palpable and overriding error” (citing Housen v.Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33). […] [19] This Court has consistently admonished trial judges to explain their reasons on credibility and reasonable doubt in a way thatpermits adequate review by an appellate court.

Having encouraged these expanded reasons, it would be counterproductive to dissectthem minutely in a way that undermines the trial judge’s responsibility for weighing all of the evidence. A trial judge’s language must bereviewed not only with care, but also in context. Most language is amenable to multiple

interpretations and characterizations. Butappellate review does not call for a word-by-word analysis; rather, it calls for an examination to determine whether the reasons, taken as

a whole, reflect reversible error. The task is to assess the overall, common sense meaning, not to parse the individual linguistic components. […] [20] Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

That is why this Court decided, most recently in H.L. , that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [20] [Emphasis added] [ 24 ] Here, the Appellant revisits six of the eight elements described by the judge which made her reject his testimony to hold that “this series of overriding errors […] led to the discounting of [his credibility, which was] a central part of the Charter application”. [21] [ 25 ] First, the Appellant argues that the judge erred in finding inconsistency in his statement regarding which officer to whom he directed his attention.

The stenographic notes do not allow the Court to conclude whether the Appellant meant that his attention was solely on Paquet or whether it was simultaneously directed at both officers at all times. [ 26 ] Second, it is true that the Appellant was always consistent in his testimony to the effect that Paquet tried to open the front passenger door. The judge was making a mistake by not concluding in this sense. However, this error is not fatal and does not warrant this Court to intervene, since the judge identified several other elements which justify not believing the Appellant’s version.

Also, the judge should not have written that the Appellant “replied that he did not care”, but considering the way he disposed of the firearm, this conclusion of the judge (lack of care) is not unreasonable. [ 27 ] For the rest (the Appellant’s stress level at the time of arrest and forgetting the name of his friend sitting near him in the car), it is only a question of assessment of the credibility of the Appellant left to the discretion of the judge. [ 28 ] Finally, the Appellant criticizes the judge’s lack of explanation for not believing the reason behind his possession of the firearm.

As Prosecutor puts it, just as there is no rule imposing corroboration, there is no rule imposing a finding of contradiction in order to disbelief a witness. FOR THESE REASONS, THE COURT : [ 29 ] DISMISSES the appeal. GUY GAGNON, J.A. PATRICK HEALY, J.A. SUZANNE GAGNÉ, J.A.