R. v. Puddy, 2011 ONCJ 399

Citation: R. v. Puddy , 2011 ONCJ 399 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — MICHAEL PUDDY ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) E. Jackson For the Crown A. Goodman For the Defendant Heard: April 14 and 15 and May 13, 2011 REASONS for JUDGEMENT GREEN, J.: A. INTRODUCTION [ 1 ] Michael Puddy was arrested in the course of the “G20 Summit” in Toronto in June of 2010. The police discovered a knife during a pat-down search following his arrest.

He was subsequently charged with obstructing the police and, as regards the knife, with possession of a prohibited weapon and possession of a concealed weapon. The obstruction and concealed weapons charges were dismissed by way of directed verdicts after the Crown closed its case. As to the remaining charge, the defendant claims that his Charter rights not to be arbitrarily detained (s. 9) and to be secure against unreasonable search or seizure (s. 8) were violated during the course of his apprehension and that the appropriate remedy is an order excluding evidence of the knife from his trial.

In the alternative, the defence contends that the Crown has failed to prove that the knife at issue was a prohibited weapon or, in the further alternative, that the defendant knew or was reckless as to its prohibited character. [ 2 ] The trial and Charter application proceeded by way of a blended hearing. The Crown called four police witnesses and the defendant testified. I first address their evidence. I then turn to a determination of the merits of the Crown’s case.

As in all criminal cases, the burden of proof rests throughout on the Crown and on a standard of proof beyond reasonable doubt. [ 3 ] Finally, I address the defendant’s Charter application. I do so even if I find him not guilty of the offence with which he is charged

as the defence has served notice of its intention to bring a post-verdict motion seeking an award of costs. My determination of the Charter application may well impact on the vigour and contours of the anticipated motion. B. EVIDENCE (

a) Introduction [ 4 ] Toronto hosted the G20 on the last weekend of June 2010. There were large public demonstrations, episodes of wanton vandalism and occasional violent clashes between protestors and the police. One notorious confrontation occurred on the evening of Saturday, June 26 th , when the police endeavoured to contain – or “kettle”, in post-G20 parlance – a large number of citizens in the area of Queen and Spadina in downtown Toronto. Law enforcement efforts during that weekend led to more than a thousand arrests.

They also have been the subject of innumerable media accounts and several government-initiated inquiries and internal police reports, at least one work of theatre and, of course, much reflection and hand-wringing by public officials. These events also serve as the backdrop to the defendant’s prosecution. [ 5 ] There were several hundred persons in the crowd. Some were clearly itching to confront the police. Some had attended to participate in a peaceful rally. And some were merely in the wrong place at the wrong time.

In theory (at least as explained during this trial), the front line of the police – composed of “public order officers” in riot gear – were tasked with preventing the demonstrators from moving west along Queen Street. Police commands advised the crowd to leave the area, there being some passages of egress to the west. Intermittently, the public order officers would uniformly advance into the crowd, forcing the contained populace back and to the west.

Those demonstrators who resisted or appeared to be breaching the peace or engaged in criminal conduct were taken to the ground, cuffed with thin plastic “flex cuffs” and left to be evacuated by members of an “extraction team” as the riot squad continued its westerly “punch out”. Those detained during the police advances were escorted to nearby paddy-wagons where they were initially processed, searched and, in most cases, ultimately transported to a temporary holding facility in the east end of Toronto. [ 6 ] The defendant was one of dozens of arrestees harvested by means of this police strategy.

According to his account, to which I shall return, he was at or near the front of the crowd when restrained by the police. None of the witnesses called by the Crown speak to the circumstances of the defendant’s initial detention or his conduct before or at the time of this event. (

b) The Police Account [ 7 ] Three officers testified as to arrest and initial processing of the defendant. The first, Sgt. Ash Awad , was a plainclothes member of the extraction team. He attended at the Queen and Spadina area about 10:45pm on June 26 th . He estimates about 300 persons were then being restrained from moving east by a front line of approximately 50 “public safety” officers in full riot gear. Awad heard amplified police commands to the crowd to disperse and “go home” as they were pushed west along Queen. Some members of the crowd were very agitated and a few hurled insults at the police.

However, Awad did not witness any violent conduct in the Queen and Spadina area. [ 8 ] Awad first saw the defendant at about 11:05pm, some 20 to 25 minutes after he joined his fellow officers at the scene. The defendant was on the ground on Queen Street, his wrists bound by police-issue flex cuffs. He was situated a block or two west of Spadina but east of the westerly-moving police line. Awad did not witness the defendant’s original detention. He did not hear any reasons for his apprehension. He was never told any reason why the defendant was cuffed. He did not see the defendant obstruct anyone.

He assumed the defendant had been arrested for breaching the peace. [ 9 ] The defendant was dressed in black clothes and sported a “Mohawk”-style haircut. Awad had been briefed on the “Black Block”, a group of potentially violent protestors who wore black clothing. He had no information that the defendant was associated with this faction and Crown counsel fairly acknowledges that the defendant was not a member of the Black Block. [ 10 ] The defendant was co-operative. Awad escorted him east towards the police wagon where he searched him.

There was a small folding knife in an unconcealed knife-pouch or -holder on the defendant’s belt. “Gerber”, the name of a popular knife manufacturer, was printed on both the knife and the pouch. The blade, which was folded into the knife’s wooden handle, was about three to four inches long. There were indentations in the blade to facilitate its manual extraction from the handle. Awad seized the knife, among other items (including the defendant’s identification), and gave it to a second officer, P.C. Travis Clarke who, in turn, read the defendant his rights to counsel.

This was about seven minutes after Awad’s first contact with the defendant. [ 11 ] P.C. Travis Clarke attended at the Queen and Spadina intersection about one to two hours before the defendant’s arrest. The day had been the most chaotic in his 15 year career and he knew that police cars had been burned earlier in the day. He heard repeated police commands to the crowd to leave or they would be arrested for breaching the peace. Clarke, like Awad, did not see any of the crowd disperse. The scene was very noisy and he could not recall if the police instructions were amplified.

He saw a bottle being thrown, although not in the period immediately preceding his first contact with the defendant at around 11:05pm. The defendant was then on the ground in flex cuffs. An unidentified RCMP officer was nearby, although there is no evidence he had any contact with the defendant. Clarke assisted Awad in escorting the defendant back to the police wagon. He did not hear any officer utter words of arrest. He did not observe the defendant before seeing him on the ground in cuffs. No one told Clarke why the defendant had been detained.

Like Awad, Clarke assumed the defendant had been arrested for breaching the peace. [ 12 ] Awad handed the knife to Clarke at the wagon. He opened the knife blade using only centrifugal force on three occasions, leading him to conclude that it was therefor a prohibited weapon. He then advised the defendant of his arrest for breaching the peace, possession of a prohibited weapon and possession of a weapon at a public meeting, and read him his rights to counsel, including the provision of a duty counsel 1-800 number.

Clarke, while testifying, demonstrated the manner in which he centrifugally opened the knife-blade using a strong flick of his wrist while holding the knife’s handle. The knife could also be opened by manually pulling the blade out of the handle. Clarke explained that a folding knife that was not initially a “prohibited weapon” by virtue of the blade’s capacity to open

through the application of centrifugal force could be converted to such a weapon (in effect, a “flick knife”) through the reduction of tension on the nut that adhered the blade to the handle over many years or by loosening that nut with an Allen key. [ 13 ] Officer Brent Stevenson attended Queen and Spadina in plainclothes support of the public order officers. Events were chaotic and dynamic that day and any interaction among officers was necessarily brief. The crowd, he says, was repeatedly told to “go home”, “move back” and “get off the streets”.

He could hear these instructions from behind the police line but could not recall if those issuing the commands used any amplification equipment. [ 14 ] He first saw the defendant as Awad and Clarke walked him back from the police line. He was cuffed, walking upright and seemed co-operative. He saw Clarke open the knife using centrifugal force. Stevenson had seen some members of the crowd throwing objects and inciting others to acts of violence. However, like the other officers, he did not observe the defendant breaching the peace. [ 15 ] Det.

Philip Chung , the final police witness, was stationed at the temporary Prisoner Processing Unit (PPU) in eastern Toronto. There no beds in the facility, the toilets lacked doors, and prisoners rested on concrete floors. Chung, like some other officers, was tasked with processing prisoners arrested during the G20 events. The defendant was one of three prisoners with whom he dealt during a lengthy shift that began at 6:00pm on June 26th. [ 16 ] The defendant arrived at the PPU a little after 4:00am on June 27 th . A Level 3 search (that is, a complete strip search) followed.

Chung first met with the defendant at 5:48am. The defendant was dressed entirely in black, including a black bandanna. His t-shirt bore what Chung construed as an anti-police message and among his tattoos was one of a head in a balaclava. The defendant requested an opportunity to speak to counsel during his interview; this was a little after 6:00am, approximately seven hours after the defendant’s arrest. Chung believed the defendant had not yet had an opportunity to consult with a lawyer.

Counsel agree that the defendant was afforded an opportunity to call a legal assistance hot-line sometime before being transported from the PPU facility at approximately 5:00pm. [ 17 ] Following the interview, Chung made the decision to detain the defendant for a show cause hearing rather than releasing him from the station on a Form 10 (Promise to Appear). He drafted the synopsis for the bail hearing. It included the assertion that the defendant was arrested when he refused a police command to move back, thus breaching the peace. He also described him as “dressed like” members of the Black Block.

Chung agreed that he had no information specific to the defendant’s conduct when he drafted the synopsis and that he “generalized” from reports provided for other arrestees when he described the circumstances of the defendant’s arrest. Given the recurrence of violent offences during the G20 and the finding of a weapon, Chung, relying on the secondary ground, recommended that the Crown seek a detention order. (

c) The Defendant’s Account [ 18 ] The defendant was 31 at the time of his arrest on June 26, 2010. He lived in London, Ontario and worked as a brick layer, a job he had held for the previous 12 years. He has a high school education. He does not have a criminal record. [ 19 ] The defendant did not know Toronto well. His girlfriend was much more familiar with the city. They travelled to Toronto from London about mid-afternoon on June 26 th . Their plan was to visit friends and then go downtown, catch a punk rock concert and check out what was happening with the G20.

The defendant had never previously been to a protest or demonstration and was interested in seeing “how democracy works”. His clothing, he said, reflected his punk rock sensibilities. The logo on his t-shirt – “Police Bastards” – was the name of a punk rock band. He denied have any general animus toward the police. [ 20 ] The defendant and his girlfriend visited some of her Toronto friends, first in the Parkdale area and then at a second address. The defendant, who has been in a supervised methadone program for the past six or seven years, consumed neither drugs nor alcohol.

He and his girlfriend took a cab downtown at about 10:00pm. They were heading for the concert venue when they came across the demonstration at Queen and Spadina. The police were arrayed on one side and the protestors were on the other, chanting slogans like “Whose streets? Our streets!” and carrying signs, including at least one that read “Peace now”. The defendant joined the latter contingent and lost contact with his girlfriend in the confusion. He did not hear any police commands to leave the area or disperse or any warnings that he would be arrested if he did not.

The defendant said he was “just being with the crowd and seeing what was going on”. He denied trying to provoke the police. He was never asked if he himself engaged in any offensive conduct or verbalizations other than wearing a “Police Bastards” t-shirt. The crowd was very loud but he did not witness any physical violence directed towards the police. In his view, the event was a “peaceful protest” and the police were the aggressive parties. [ 21 ] The police would occasionally push forward into the crowd and then stop.

The defendant believed he was participating in a legitimate democratic protest and that he had a right to be there. He was close to the front of the dividing line for much of the time preceding his arrest, although he retreated with each police advance. He denied knowing that he was “supposed to leave” the area. Eventually he was overtaken by the police and arrested. He was thrown to the ground, cuffed and pulled behind the police line by riot control officers.

He was then taken to a police wagon where he was searched, read his rights and put in a wagon. [ 22 ] The defendant acknowledged ownership of the seized knife. He grew up in the country and always carried a knife on his belt. He regularly used a knife on construction sites and for other routine tasks. He had bought the knife at a Wallmart in a London-area mall about a year to a year and a half before June 2010. He learned after his arrest that the Wallmart no longer carried the same model and that it was no longer available on-line.

The defendant demonstrated how he opened the knife by holding it in his left hand and then gripping and unfolding the blade with his right hand. He denied knowing that the blade could be exposed by way of centrifugal force until, to his surprise, he witnessed Det. Chung demonstrate this technique at a courthouse some months prior to his trial.

He also denied having any offensive or defensive purpose in bringing the knife to the demonstration, explaining that he foolishly had given no thought to its carriage as it was always on his waistband. [ 23 ] Following his arrest, the defendant was transported to a “cage” in a holding facility for several hours. He was then moved to a second facility (the PPU), paraded, strip-searched and then placed into another “cage”. Questioned there by the police, the defendant asked to speak to a lawyer. He provided the police with a lawyer’s number that he said was given to him by other prisoners in his

holding unit. The police twice called the number on his behalf. In cross-examination, the defendant allowed that the number heafforded the police had been inscribed on his arm before his arrest by one of his girlfriend’s friends as a safety precaution as they hadheard that many persons were being arrested without reason and he and his girlfriend were going downtown that night. He agreed thathe had not told the truth in direct examination when he testified that he left the impression that he first obtained the phone number fromhis PPU cellmates; the very same number, he explained, was being passed around the cell.

He had not earlier told the truth because he“was worried how it would look with the number on [his] arm” and “that it would make [him] look as though [he] planned to attend theprotest”. He insisted that writing the number on his arm was merely precautionary as, in his words, he “had no intention of causing ordoing anything illegal or causing myself to be in a position to be arrested”.

He had no complaints about the conduct of any of the officersat the PPU. [24] The defendant spent the next night at Maplehurst detention centre and did not first speak to a lawyer until he was at court awaitinghis show cause hearing on June 28th. Crown counsel initially requested his detention but the defendant was eventually ordered releasedon a $25,000 recognizance with conditions that required him to live with his girlfriend’s father, his surety, and subjected him to “housearrest” among other stringent terms.

The house arrest term was varied within a couple of weeks of his release and the other moreonerous terms were later relaxed. The defendant fully complied with his bail conditions while awaiting his trial. C. ANALYSIS (

a) Introduction [25] As noted earlier, the defence position, on the merits, is, first, that the Crown is required to establish not only that the knife inquestion falls within the Criminal Code definition of “prohibited weapon” but, in addition, the Code definition of “weapon” and that, inthe latter regard, it has failed to do so. The defence also argues that the Crown has failed to prove that the defendant had the requisitemens rea for the offence of possession of a prohibited weapon.

Finally, and in the alternative, the defendant claims that his s. 9 and 8rights under the Charter have been infringed and that the appropriate remedy is an order excluding admission of the seized knife at trial. [26] It bears repeating that the onus rests throughout on the Crown to establish all the essential elements – physical and mental – of theoffence charged to a standard of proof beyond reasonable doubt.

The burden with respect to the claims of Charter infringement and theremedy, if any, that follows generally rests with the applicant (here, the defendant) and is only discharged upon proof on a balance ofprobabilities. (

b) Proving “Prohibited Weapon” [27] A “prohibited weapon” is defined in s. 84 of the Criminal Code to include “a knife that has a blade that opens automatically bygravity or centrifugal force”. The evidence is overwhelming that the knife seized from the defendant meets this definition. However,counsel for the defendant argues that to found a conviction that knife must also fit within the definition of “weapon” in s. 2 of the Code. That provision defines “weapon” to mean: any thing used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm. Firearms aside, and unlike the case of a “prohibited weapon”, the s. 2 definition imports an assessment of an accused’s subjectiveintention into the determination of whether any item, including a knife, falls within its compass: see R. v. MacDonald (2002), (ON CA), 170 C.C.C. (3d) 46, (Ont. C.A.), at paras. 28-32. Although there are some cases that lend support to the defenceargument (for example, R. v.

Chan, 2005 ONCJ 360, at para. 5), in my view such an approach effectively subverts Parliament’sintendment (see R. v. Archer (1983), (ON CA), 6 C.C.C. (3d) 129 (Ont. C.A), at para. 7) and renders the statutorydefinition of “prohibited weapon” redundant or unnecessary (an unlikely construction of Parliament’s will). I am in agreement withCavarzan J. who, in R. v. Gale, [1992] O.J. No. 2855 (Ont.C.J.-G.D.), concluded that, “The definition of ‘prohibited weapon’ is self-contained” and that “there is no need to resort to the definition of ‘weapon’ in

section 2 of the Criminal Code”. In the result, I give noweight to this submission. (

c) The Mental Element [28] The defendant was in possession of the knife. That knife, by virtue of its blade’s capacity to open by way of centrifugal force, is aprohibited weapon. The physical elements of the offence charged are thus satisfied. However, as said by the Court of Appeal in R. v.Phillips (1978), (ON CA), 44 C.C.C. (2d) 548, at para. 7, “mens rea is an essential ingredient of the offence, in thesense that ignorance of the fact that the knife in question opened automatically by gravity or centrifugal force is a good defence to acharge of being in possession of a prohibited weapon”. In R. v.

Archer, supra, at para. 9, the Court of Appeal further explained that, The mens rea required to constitute the offence under s. 81(1) [now s. 91(2): possession of a prohibited weapon] consists in eitherknowledge or recklessness with respect to the characteristics of the knife in question which, in fact, make it a prohibited weapon.

In the face of the defendant’s denial of the requisite knowledge, the focus of analysis must now turn to whether the Crown hasadequately proven the mental element necessary to establish the defendant’s guilt. [29] Key to a determination of this question is an assessment of the defendant’s credibility as read in the larger context of thecircumstantial evidence that points to guilt. As to the latter, the knife blade opens centrifugally through the application of a forceful flick

of the wrist. It was in the defendant’s exclusive possession for a period of one to one and half years. He used it on a near-daily basis, at the construction sites where he worked and for domestic tasks. Whatever his initial intention, the defendant chose to remain at the demonstration – and often close to its front line – for almost an hour. [ 30 ] On the other hand, there is nothing about the knife that signals its unlawful properties. Nor does the blade simply fall out of the knife’s handle; it opening by way of centrifugal force requires the conscious application of this type of force.

Further, the knife readily opens by digitally pulling the blade out of the handle, as do lawful folding knives, and there are small manufactured indentations in the blade to facilitate this operation. Further still, there is evidence that folding knives can be converted to prohibited weapons through a relaxation of the tension on the pivot nut through natural wear and tear over a lengthy period of time.

I note, as well, that the knife, as I have found, was not concealed and that the defendant was carrying his personal identification at the time of incident, both circumstances that lend some weight to his account of innocent purpose. [ 31 ] The Crown theory, in principle, is not that the knife was originally fabricated and sold as a flick knife, but that the defendant either altered the hinging mechanism so as to adapt it into a prohibited weapon or knew through his intimate familiarity with the knife that this conversion had occurred and yet continued to carry it.

As to the second of these alternatives, Crown counsel never asked the defendant, directly or indirectly, whether he had loosened the nut joining the blade to the handle or otherwise consciously transformed the knife into one that shared the features of a prohibited weapon, nor were there any marks on the instrument to suggest such physical alteration.

It would, of course, be most unfair to convict the defendant on the basis of a theory of culpability about which he was never confronted or afforded an opportunity to respond. [ 32 ] (I note, parenthetically, that the evidence as to the processes by which an initially lawful folding knife may be transformed into a prohibited flick knife comes through P.C. Clarke. No objection was taken to this evidence.

Clarke, through his law enforcement duties, has had considerable exposure to flick knives, However, his testimony – particularly in regard to the very lengthy period of time he opined it would take for a lawful folding knife to take on centrifugal properties without human manipulation of its hinge – strikes me as a species of expert evidence, and Clarke was never qualified to tender such evidence. What I do draw from Clarke’s testimony is that at least some commercial folding knives may be transformed from lawful to unlawful devices without deliberate human intervention.

Further, it seems reasonable to infer that the duration of this process may well depend on the mechanics and construction of the knife and the frequency with and purposes for which it is routinely used.) [ 33 ] As to the defendant, he was composed and even-tempered during his testimony. He remained polite, even-keeled and respectful throughout a very aggressive cross-examination. He candidly admitted where his sympathies lay in the confrontation between the police and the demonstrators, but directed no complaints at the conduct of the police following his detention.

The core concern with the defendant’s evidence, rightly exploited by Crown counsel, was the inconsistency between his evidence in direct and cross-examination as to where and when he obtained the legal assistance phone number he provided the police at the PPU.

His earlier failure to tell the truth is of no small moment and the Crown invites me to conclude that it irredeemably taints the entirety of the defendant’s exculpatory evidence, including, of course, his denial of any knowledge of the prohibited nature of the knife he carried. [ 34 ] Significantly, on being confronted with this inconsistency the defendant quickly acknowledged his earlier prevarication. As trier of fact, I may, of course, accept all, some or none of the evidence of any witness; put otherwise, a single lie, even an important one, may but does not compel the utter rejection of a witness’ testimony.

Further, where, as here, that witness is the defendant the requisite analysis, consistent with the presumption of innocence, does not require me to believe an accused’s critical denial to ground an acquittal or even to determine the probability of that denial’s veracity. The question, rather, is whether I have a reasonable doubt as to an essential element of the offence charged upon consideration of the defendant’s evidence on the point as seen against the landscape afforded by all the other evidence led at trial.

The point at issue here is the defendant’s knowledge of the prohibited nature of the knife, as evidenced by his denial that he knew his knife blade could be opened by the application of centrifugal force. [ 35 ] Considering the circumstantial evidence I have earlier canvassed, including the possibility that a commercial folding knife can develop the characteristics of a prohibited weapon through regular use, I find the defendant’s denial of the requisite knowledge a plausible assertion of his state of mind at the time of his arrest.

While the defendant may have known the prohibited nature of the knife, I am not convinced, as the Crown’s theory suggests, that he must have so known. Put otherwise, I have a reasonable doubt as to whether he knew the physical properties of the knife that render it a prohibited weapon. Accordingly, I find the defendant not guilty of this charge. (

d) The Charter Claims (

i) Defining “Breach of the Peace” [ 36 ] The defence position, in brief, is that there was no lawful basis for the defendant’s initial apprehension (thus rendering it an arbitrary detention in breach of s. 9 of the Charter) and that the subsequent search incident to that arrest and the seizure of his knife infringed the defendant’s s. 8 rights to be secure against unreasonable search and seizure. The just and appropriate remedy for these constitutional violations, says the defence, is an order pursuant to s. 24(2) of the Charter excluding the evidence of the knife at the defendant’s trial.

Absent evidence of the seized knife the defendant would necessarily be acquitted, a result I have already reached by virtue of my determination of the case on its merits and without resort to constitutional principles. However, in view of the pending “costs” motion, and at the request of both counsel, I here address the defendant’s Charter application. [ 37 ] The witness officers first observed the defendant as he lay on the ground, his hands bound in flex cuffs.

He was clearly detained and neither of the officers who collected him, Awad and Clarke, had observed the defendant’s arrest or any conduct by him that gave rise to law enforcement concerns. Both officers assumed the defendant had been originally arrested for breaching the peace.

The meaning of this concept and the scope of the arrest powers associated with maintaining the peace are the inevitable launch point for any Charter analysis. [ 38 ] While breaching the peace is not itself an offence, those who commit acts amounting to a breach of the peace or are at the cusp of doing so may be arrested and temporarily restrained under the Criminal Code or, in the latter case, the common law. This is a form of

proactive or preventative police power designed to preserve the peace and inhibit the occurrence of criminal conduct. [39] The notion of “breach of the peace” has eluded settled understanding for many generations. Professor Glanville Williams began hisseminal canvass of the issue at common law (“Arrest for Breach of the Peace”, [1954], Crim. L.R. 578, at 578) by commenting that,“[t]he expression ‘breach of the peace’ seems clearer than it is, and there is a surprising lack of authoritative definition of what onewould suppose to be a fundamental concept in criminal law”.

The most prominent English definition, and the one most frequently citedby Canadian authorities, is that set out by the English Court of Appeal in R. v. Howell, [1981] 3 All E.R.383, at 388: [T]here is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or aperson is in fear of being so harmed through an assault, an affray, a riot an unlawful assembly or other disturbance. In R. v.

Kerr (2004), 2004 SCC 44 , 185 C.C.C. (3d) 1, at para. 65, the Supreme Court of Canada favourably observed that theHowell court “noted with approval that violence is ‘of the essence of a breach of the peace’”. The scope of the Howell definition wassomewhat narrowed in Brown v. Durham Regional Police Force (1998), (ON CA), 43 O.R. (3d) 223 (C.A.)[hereafter, “Brown”], the leading modern Canadian case on common law police powers associated with “breach of the peace”. Afterciting Howell, the Court of Appeal limited the actual or potential harm giving rise to a breach of the peace to that directed at persons.

Assaid by Doherty J.A. for the Court, at para. 73: A breach of the peace does not include any and all conduct which right thinking members of the community would regard as offensive,disturbing, or even vaguely threatening. A breach of the peace contemplates

an act or actions which result in actual or threatened harmto someone. [Emphasis added.] [40] Based on the evidence before me, both that of the officers and that of the defendant himself, I am unable to find any basis toconclude that the defendant did anything prior to his arrest that amounted to an actual or apprehended breach of the peace. Somemembers of the crowd may have committed offences or were otherwise breaching the peace or inciting others to do so. If so, there is noevidence that the defendant was one of them.

This conclusion, however, is not necessarily dispositive of the Charter-significant issuesrelating to the lawfulness of the defendant’s arrest and the subsequent search of his person and seizure of his knife, the matters to which Inow turn. (ii) Powers of Arrest for Breaching the Peace: The Legal Framework [41] Pursuant to the ancillary powers doctrine, the police may arrest for apprehended breaches of the peace at common law. Thejustification for and limits of this power are thoroughly developed in Brown, supra.

The police power to arrest and detain for actualbreaches of the peace has a statutory foundation in s. 31 of the Criminal Code: 31.

(1) Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified inarresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in orrenew the breach of the peace.

(2) Every peace officer is justified in receiving into custody any person who is given into his charge as having been a party to a breach ofthe peace by one who has, or who on reasonable grounds the peace officer believes has, witnessed the breach of the peace. [42] Crown counsel agrees that if a lawful basis for the defendant’s arrest exists, it must be found in s. 31. (Section 30, whichauthorizes a power to detain, not arrest, appears directed at persons other than police officers who witness breaches of the peace as thedetention is only “for the purpose of giving him [the detained person] into the custody of a peace officer”.) In regard to s. 31, it must berecalled that there is no suggestion that the defendant committed any offence before being detained.

Rather, it is alleged that his conductprior to his arrest (conduct about which I have heard no evidence of physical or verbal offensiveness) somehow constituted an arrestablebreach of the peace or, at minimum, afforded a legally proper basis for Awad and Clarke to take him into custody. [43] At the time of his arrest the defendant was attending a political rally.

One need look no further than the daily headlines respectingevents in the Middle and Near East and North Africa to recognize how vital political demonstrations are to the operation of a viabledemocracy and how important it is that, short of criminal conduct and true threats to public order, participants should be afforded broadlatitude for expression of their political beliefs.

Indeed, rights of expression, peaceful assembly and association are enshrined as“fundamental freedoms” under s. 2 of the Canadian Charter and Rights and Freedoms. [44] The zealous exercise of police arrest powers in the context of political demonstrations risks distorting the necessary if delicatebalance between law enforcement concerns for public safety and order, on the one hand, and individual rights and freedoms, on theother. It further risks what one commentator has described as “the criminalization of dissent” (J.

Esmonde, “The Policing of Dissent –The Use of Breach of the Peace Arrests at Political Demonstrations” (2002), 1 J.L. & Equality 246, at para. 72). Such criminalizationmay occur in three ways: First, by effectively granting a broad discretion to the police to decide themselves what constitutes a breach ofthe peace. In this regard, it is of more than passing interest that the Law Reform Commission of Canada (Working Paper 41) (Ottawa:Law Reform Commission of Canada, 1985, at 62) recommended the elimination of the arrest power afforded by s. 31 because it ispremised on an “exceedingly vague” standard.

Second, because those who fail to comply with police commands founded on overlybroad

interpretation of this discretion may nonetheless be charged with resisting arrest or obstructing the police. (Indeed, the defendantfaced this very jeopardy until the Crown rightly invited that this charge be dismissed at the close of the Crown case.) And third, bymetaphorically hijacking the message conveyed by those participating in demonstrations through the discrediting and de-legitimationthat accompanies mass arrests. None of this is to say that there are not occasions when forceful police action is warranted to maintainpublic order.

However, the calculus in each case must, to the degree possible, respect the rights and liberties of those engaged in politicalspeech and assembly. [45] These themes – or at least the concerns for a balance that respects fundamental liberties – find some resonance in the Court ofAppeal’s judgement in Brown.

Although the focus there is on the common law power to arrest for apprehended breaches of the peace,Justice Doherty’s closing comments on the subject eloquently reflect policy concerns that bear more generally on the policing ofexpressive activism that falls short of unambiguously criminal conduct (at para. 79):

The balance struck between common law police powers and individual liberties puts a premium on individual freedom and makes crimeprevention and peacekeeping more difficult for the police. In some situations, the requirement that there must be a real risk of imminentharm before the police can interfere with individual rights will leave the police powerless to prevent crime. The efficacy of lawscontrolling the relationship between the police and the individual is not, however, measured only from the perspective of crime controland public safety.

We want to be safe, but we need to be free. [Emphasis added.] These considerations help inform the constitutional analysis that follows. (iii) The Defendant’s Arrest (Charter, s. 9) [46]

Section 9 of the Charter guarantees “[e]veryone the right not to be arbitrarily detained or imprisoned”. There is no doubt thedefendant was “detained”, and likely arrested, when he was placed in flex cuffs by an anonymous police officer and deposited on QueenStreet. There is equally no doubt that he was detained when Awad and Clarke collected him and escorted him to the police wagon wherehe was searched and his knife seized.

The central issue, then, is not whether he was detained but, rather, whether his detention, whetherviewed as separate occurrences or as part of a continuous transaction, was “arbitrary”. [47] Some regard for the broader picture may be helpful. Toronto witnessed unprecedented public demonstrations and occasionaleruptions of violence during the G20 weekend. Police resources were undoubtedly strained and the earlier burning of police vehiclesand repeated provocations by some protestors had understandably adrenalized those officers attending at the intersection of Queen and Spadina on the evening of June 26th.

That said, the testimony before me affords very little evidence of violent conduct by any of thehundreds of citizens constrained in that area. While one officer, Stevenson, spoke of some persons throwing objects, the accounts of theother two were much more benign. Clarke witnessed a single bottle being thrown (and that sometime well before his first contact withthe defendant) and the second, Awad, saw no violent conduct at all in the 20 to 25 minutes preceding his involvement with thedefendant.

Indeed, it appears – again based solely on the evidence led at this trial – that the only organized or collective physicalaggression at that location that evening was that perpetrated by the police each time they advanced on the demonstrators. [48] Puddy was among the demonstrators. He had placed himself close to the front line. On his uncontradicted evidence, he didnothing more other than endeavour to retreat each time the police advanced. Yet, somehow, he found himself seized, thrown to theground and handcuffed.

The defendant’s arrest (as Awad and Clarke reasonably assumed it to be in view of the police cuffs binding hiswrists) can only be other than arbitrary if it was lawful. As said by the Supreme Court in R. v. Grant (2009), 2009 SCC 32 , 245C.C.C. (3d) 1, at para. 54, The s. 9 guarantee against arbitrary detention is a manifestation of the general principle, enunciated in s. 7, that a person’s liberty is not tobe curtailed except in accordance with the principles of fundamental justice. As this Court has stated: “This guarantee expresses one ofthe most fundamental norms of the rule of law.

The state may not detain arbitrarily, but only in accordance with the law” (Charkaoui v.Canada (Citizenship and Immigration), 2007 SCC 9 , [2007] 1 S.C.R. 350, at para. 88).

Section 9 serves to protect individualliberty against unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9 ([R. v.] Mann, 2004 SCC 52, [2004] 3 S.C.R. 59], at para. 20), unless the law authorizing the detention is itself arbitrary. Conversely, a detention notauthorized by law is arbitrary and violates s. 9. [Emphasis added.] As Crown counsel has recognized, s. 31 of the Criminal Code (and here, in particular, s. 31(1)) is the only arguable basis for holding thatthe defendant’s original detention or arrest was “authorized by law”.

Otherwise, that detention is clearly arbitrary and in breach of thedefendant’s s. 9 rights. [49] As noted earlier, s. 31(1) authorizes a police officer “who witnesses a breach of the peace” to arrest “any person whom he findscommitting the breach of the peace or who, on reasonable grounds, the peace officer believes is about to join in or renew the breach ofthe peace”.

Neither Awad nor Clarke witnessed the defendant “breach the peace”, nor did they claim to have any basis, reasonable orotherwise, to infer that he was “about to join or renew such breach”, nor did they meaningfully “assist” the officer, whomever he or shewas, who witnessed a beach of the peace (assuming, of course, that the defendant actually committed such breach). Nor did any otherofficer who testified at this trial. There is, in short, a complete absence of any evidence affording a lawful foundation for the defendant’sinitial arrest and physical restraint.

Accordingly, that first detention – the defendant’s grounding and cuffing – was not authorized by lawand, as a result, is both arbitrary and violative of the defendant’s s. 9 rights. [50] The somewhat more challenging issue is whether Awad’s and Clarke’s subsequent apprehension of the cuffed defendant wasauthorized by law. This inquiry is also more critical to the defence application for constitutional relief as it is this second or continuingdetention that culminates in the search of the defendant and the seizure of his knife. Lawful authority, if any, for this detention must findpurchase in s. 31(2).

That provision, which I have earlier set out in full, authorizes a police officer to receive “into custody any personwho is given into his charge as having been a party to a breach of the peace by one who has, or who on reasonable grounds the peaceoffice believes has, witnessed the breach of the peace”. Of course, neither Awad nor Clarke took custody of the defendant from someonewho witnessed a breach of the peace and alleged the defendant was a party to such breach. The defendant, rather, was simply found incuffs on the ground and the two officers “assumed” he had been arrested for breaching the peace.

Leaving aside the niceties of thephrase “given into his charge”, and accepting that both officers believed what they “assumed” to be the case, there still remains thequestion of whether they had “reasonable grounds” for their belief. Although in reference to arrest powers for criminal offences, thewords of a unanimous Supreme Court in R. v. Storrey (1990), (SCC), 53 C.C.C. (3d) 316 are here equally apt: There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she hasreasonable and probable grounds to make an arrest.

Rather, it must be objectively established that those reasonable and probablegrounds did in fact exist. It is the criterion of objectivity that commands particularly close attention on the facts of the case at bar. [51] There is little jurisprudential discussion, and even less of binding authority, respecting the meaning of s. 31(2). One salientcontribution appears in R. v. Biron (1975), (SCC), 23 C.C.C. (2d) 513, at 527, where a majority of the Supreme Court

held that the “the word ‘justified’ in s. 31(2)” means that an officer who took custody of a person arrested by another officer “had lawfulsanction to receive [the arrestee] into his custody”. As I construe this language, and as appears to flow from a plain reading of theprovision, s. 31(2) affords no independent authority to arrest or detain someone believed to have committed a breach of the peace.

Thelawfulness of any such arrest must still be found in s. 31(1), and as I have found that arrest in this case to be arbitrary the further orcontinuing detention of the defendant by Awad and Clarke can be no less violative of s. 9. [52] In the alternative, I am of the view that neither Awad nor Clarke had “reasonable grounds” (as required by the provision) to believethat the defendant – as opposed to any others at the demonstration – had been “a party to a breach of the peace”.

There is simply nothingmore than the defendant’s cuffed presence on the ground to support such founded belief and, as I understand the concept ofreasonableness, that is insufficient. [53] The case of Biron again offers some admittedly rough guidance. The accused in that case had been arrested for causing adisturbance during a police raid of a bar. The arresting officer handed him off to a second officer who, in quick turn, handed the accusedto a third officer. The accused’s interaction with the third officer led to a second charge, that of resisting a peace officer in the executionof his duty.

The provision in the Code governing arrests without warrant then authorized, as it does now (s. 495(1)(b)), the police toarrest without warrant “a person whom he finds committing a criminal offence”. The Biron court, at p. 524, read in the word“apparently” between the words “finds” and “committing” so that the lawfulness of an arrest does not turn on whether or not the accusedwas ultimately convicted at trial.

As said by Martland J., “the validity of an arrest [without warrant] … must be determined in relation tothe circumstances which were apparent to the [arresting] police officer at the time the arrest was made”. [54] The Biron court also addressed a related provision (what is now s. 495(1)(

a) of the Code) that authorized the police to arrestwithout warrant “a person who committed an indictable offence or who on reasonable grounds he believes has committed … anindictable offence”. The Court observed, at p. 524, that in these circumstances the officer “may have to rely upon information receivedfrom others” and he “can act on his belief, if based on reasonable and probable grounds”.

In holding that the third officer “was justified“in receiving the accused Biron into custody under s. 32(2), the Court reasoned that the close connection between and serial hand-offs ofthe arrestee among the three officers afforded an adequate basis for the reasonableness of the third officer’s belief that the first officerhad witnessed the accused Biron’s breach of the peace (by causing a disturbance in a public place). In the case before me, there is noevidence of any meaningful connection between whoever arrested the defendant and Awad or Clarke.

There was no “informationreceived” by either of these officers respecting the circumstances (“apparent” or otherwise) of any breach of the peace by the defendantor any other reasons for his arrest. Their belief, while subjectively held, is simply not a reasonable one. Is appears founded onspeculative inference rather than objective reason. Accordingly, and for this reason as well, I find Awad’s and Clarke’s detention of thedefendant arbitrary and in violation of s. 9. [55] I note that in R. v.

Grant, supra, at para. 56, the Supreme Court held that the analytical approach it commended for inquiries intoclaims of arbitrary detention under s. 9 of the Charter “mirrors the framework developed for assessing unreasonable searches andseizures under s. 8 of the Charter”. The Supreme Court did not there pursue the question of whether the parallel between s. 8 and s. 9analyses extended to shifting the burden to the Crown to demonstrate that a warrantless arrest was reasonable. As said in Collins v.

TheQueen (1987), (SCC), 33 C.C.C. (3d) 1 (S.C.C.), at 13, “once the appellant has demonstrated that the search was awarrantless one, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable”. (See, also, R. v.Haas (2005), (ON CA), 200 C.C.C. (3d) 81 (Ont. C.A.), at paras. 34 to 38). I do not, however, rest my conclusion asto arbitrariness of the defendant’s detention on the Crown’s patent failure to satisfy this burden.

The defendant, in my view, has met thecivil standard of proof in this regard. (iv) The Search of the Defendant (Charter, s. 8) [56] Awad and Clarke escorted the defendant to the area of the police wagon where Awad searched him and, in the process, seized thefolding knife. There is no issue but that this search was purportedly conducted as an incident of the defendant’s arrest. As held by theSupreme Court in R. v.

Stillman, (SCC), [1997] 1 S.C.R. 607, at para. 27, “[n]o search, no matter how reasonable, maybe upheld under this common law power [of search incident to arrest] where the arrest which gave rise to it was arbitrary or otherwiseunlawful”. (See, also, R. v.

Caslake, (SCC), [1998] 1 S.C.R. 51, at para. 13, where the Court added, “since the legalityof the search [incident to arrest] is derived from the legality of arrest, if the arrest is later found to be invalid, the search will also be”.) [57] Given my holding as to the arbitrary nature of both the defendant’s arrest and his subsequent detention by Awad and Clarke, I haveno difficulty concluding that the search of the defendant and the related seizure of his knife infringed his right to be secure againstunreasonable search or seizure as guaranteed by s. 8 of the Charter. (

v) Remedy (Charter, s. 24(2)) [58] The framework for s. 24(2) exclusionary analysis is that set out in Grant, supra, and its sister cases.

Three lines of inquiry are nowrelevant to the considered application of s. 24(2): (1) the seriousness of the Charter-infringing conduct; (2) the impact of theinfringement on the Charter protected interests of the defendant; and (3) society’s interest in the adjudication of the case on its merits. “The judge”, as said in Grant, at para. 85, “must then determine whether, on balance, the admission of he evidence would bring theadministration of justice into disrepute”. [59] Seriousness of the breach: The original arrest of the defendant is completely without justification; as such, it represents a graveform of constitutional misconduct.

There was, however, nothing offensively flagrant or deliberate about the conduct of Awad or Clarke. Their constitutional error is mitigated by both the dynamism of the events and some ambiguity affecting the meaning and application ofthe Criminal Code arrest powers for breaching the peace. Nonetheless, there is good reason, as said in Grant, at para. 72, for “the courtsto dissociate themselves from that conduct”. First, “reasonableness” is a long-settled constitutional norm for assessing the validity of anarrest.

Second, that standard is prescribed in the very statutory provision upon which the Crown relies to justify the officer’s behaviour. Third, the officers appear never to have turned their attention to determining the reasons for – and thus integrity of – the defendant’sinitial arrest. And finally, however heated, the demonstrations that occurred during the G20 were hardly unanticipated: the policedepartment had clearly devised responsive strategies and tactics and trained those charged with enforcing the law on the G20 weekend

for the inevitable challenges presented by large demonstrations. Either due respect for the Charter protected liberties of individual participants formed small part of this program or the two officers who dealt with the defendant at the front line failed to read the memo. This first factor, I conclude, weighs in favour of exclusion of the seized knife. [ 60 ] Impact on the Defendant’s Charter Protected Interests : The defendant was deprived of his liberty without cognizable reason and while engaged in a protected form of political expression.

He was physically restrained, detained for two further days as a result of his initial arrest and the unlawful search that followed, and, despite having a job, a fixed address and no criminal record, was held for a show cause hearing. In addition, his privacy interests and personal dignity were clearly infringed through the search and the invasive personal intrusions that inevitably accompany being held in custody.

These, I find, are significant intrusions on the defendant’s Charter protected interests. [ 61 ] Society’s Interest in an Adjudication on the Merits : The seized knife is both reliable evidence and evidence that is crucial to the Crown’s case. As such, this third criterion argues in favour of admission rather than exclusion. This may, however, be somewhat mitigated by the relatively minor nature of the prohibited weapon charge. As I earlier wrote in R. v. Peacock , [2009] O.J.

No. 4073 : In Grant , at para. 84 , the Court commented that, “while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways”.

Read carefully, however, it seems at least arguable that the Court’s metaphor is most appropriate for the most serious of cases, as illustrated by this closely-following passage: [W]hile the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. [Emphasis added.] Undoubtedly everyone subscribes to a “justice system that is above reproach”.

That acknowledged, the importance of “seeing a determination on the merits” may be at least somewhat attenuated where, as here, the charge … is at the less serious end of the scale and the defendant’s penal stakes are similarly diminished. [ 62 ] Assessing the Balance : As just noted, the knife is reliable evidence that is critical to the Crown’s case. This favours its reception. However, a balancing of the search for truth and the integrity of the judicial system must still be conducted. The competing considerations, as earlier recited, support an exclusionary resolution.

The constitutional infringements are serious and gravely impact on the defendant’s Charter interests. Had I not already rendered a verdict, I would find that the severity and impact of the breaches outweigh society’s interest in an adjudication of this relatively minor charge on its merits. Reasonable persons fully informed of Charter values and norms and the circumstances of this case would, I find, agree that admission of the impugned evidence would bring the administration of justice into disrepute. Accordingly, the evidence of the knife is excluded. Absent this evidence, the Crown’s case necessarily fails. D.

CONCLUSION [ 63 ] Both on the merits and through the application of constitutional principles, I find the defendant not guilty of the charge of possessing a prohibited weapon. Released on August 11, 2011 __________________________ Justice Melvyn Green