r v. DARIUS PERRY, 2021 QCCQ 829

R. c. Perry 2021 QCCQ 829 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal and penal division No: 500-01-182617-180 500-01-182618-188 DATE: February 18 th , 2021 ______________________________________________________________________ BY THE HONOURABLE LINDA DESPOTS, J.C.Q ______________________________________________________________________ THE QUEEN Prosecutor v.

DARIUS PERRY Accused ______________________________________________________________________ JUDGMENT ON MOTION TO EXCLUDE EVIDENCE FOLLOWING AN ILLEGAL ARREST ( Sections 7 , 8 , 9 and 24(2) of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ [ 1 ] At around 5 a.m., the police received calls about gunshots in a residential neighborhood. They intercept Darius Perry who is walking in the vicinity where the shots were heard. The police seize a pistol from the bag that Mr.

Perry was carrying over his shoulder. [ 2 ] Accused of illegal possession of a firearm, Mr. Perry seeks to exclude the firearm from the evidence, as he alleges that his rights protected by the Canadian Charter of Rights and Freedoms ( the Charter ) have been violated. [ 3 ] The Court must therefore answer the following questions: • Did the police violate Mr.

Perry’s constitutional rights? • If so, in light of the criteria set out in Grant [1] , should the prohibited firearm be excluded from the evidence under section 24(2) of the Charter ? [ 4 ] For the following reasons, the Court dismisses the motion to excluded evidence. Analysis Did the police violate Mr. Perry’s constitutional rights? [ 5 ] Mr. Perry argues that the police arbitrarily detained him and unlawfully searched him, thereby violating his rights under sections 8 and 9 of the Charter . He believes that the police had no reasonable motives to intercept, detain and search him.

Moreover, they never informed him that he was being held for investigative detention. [ 6 ] According to the prosecution, the police had the necessary grounds to detain Mr. Perry, given the context in which they were operating. The search of the bag was reasonable in the given circumstances. For the prosecution, the police did not violate Mr. Perry’s constitutional rights. [ 7 ] On December 30 th , 2018, around 5 a.m., the police received two calls from citizens who reported hearing gunshots near 7900, chemin de la Côte St-Luc.

The information transmitted through the police radio, reported 3 to 5 gunshots. [ 8 ] Following these calls, officer Poirier patrols the neighborhood, on his own, looking for potential victims or any relevant information. [ 9 ] About twenty minutes later, officer Poirier saw a man walking by himself on the sidewalk, in the vicinity from which the citizens reported the gunshots. [ 10 ] Officer Poirier approaches Mr. Perry, while remaining in his vehicle. He asks him if he has seen or heard anything suspicious. [ 11 ] According to Officer Poirier, Mr.

Perry quickly puts his hand into his bag, which he is carrying over his shoulder. He orders him

not to touch the bag due to the nature of the calls he’s received. Officer Poirier says that Mr. Perry immediately put his entire hand in his bag. He did not see him open the zipper which was on top of the bag. [ 12 ] Mr. Perry told the officer that he was looking for his identification papers, in order to give them to him, even though Officer Poirier did not make such a request. [ 13 ] Still seated in his patrol car, Officer Poirier orders Mr. Perry once more not to touch his bag and to keep his hands in plain view, seeing as he had received calls reporting gunshots.

The officer explained that due to the nature of the calls he received and for his safety, he drew his gun, without showing it to Mr. Perry. [ 14 ] Officer Poirier tells him that he doesn’t need to identify him but that he wants to know if he saw or heard anything in particular, in the vicinity. Mr. Perry tells him that he was leaving his girlfriend’s house and that he hasn’t heard anything in particular, except for maybe some fireworks about 30 minutes earlier. [ 15 ] At this point, officer Poirier does not suspect anything particular in the behavior of Mr. Perry.

He was being cooperative and answered questions. [ 16 ] The situation changes when another patrol car arrives. When Mr. Perry sees it, he immediately puts his hand into his bag again. Officer Poirier warns him not to do that, grabs his gun and gets out of his patrol car. Officer Poirier advises his colleagues, including Officer Boucher, of the situation and in particular of his intention to check Mr. Perry’s bag to see if it contains anything that could endanger their safety. [ 17 ] Meanwhile, Mr. Perry looks around and pulls the bag closer towards him.

According to officers Poirier and Boucher, he behaves like someone who is trying to escape. [ 18 ] Both officers Poirier and Bouchard claim to have advised Mr. Perry that they were responding to reports of gunshot noises. [ 19 ] When Officer Poirier asks Mr. Perry to show him the contents of his bag, agent Boucher intervenes and for security reasons, decides to verify the contents himself. Given Mr.

Perry’s lack of cooperation at this time, each officer held an arm while Officer Boucher searched the bag. [ 20 ] Officer Boucher said he must have opened the zipper to access the interior of the bag, moved a bottle or two, and saw the grip of the gun in an interior compartment. [ 21 ] Mr. Perry was then arrested and brought to the police station. [ 22 ] The weapon seized is a Dreyse pistol and is considered a prohibited weapon under

section 84 of the Criminal Code .

At the time of the seizure, there were 8 bullets in the magazine and one in the chamber. [ 23 ] In the Mann decision [2] , the Supreme Court of Canada advises us that the police can detain a person for investigation purposes, if they have reasonable grounds to suspect, in view of all the circumstances, that the person is involved in the commission of a crime and that their detention is necessary. [ 24 ] Along with the power of detention, there is a power of preventative search by palpation, if the police officer has reasonable grounds to believe that his safety is threatened [3] .

This search must be carried out quickly and not be excessive. [ 25 ] The Court notes that when Officer Poirier initially addresses Mr. Perry, he does so as part of a legitimate duties as a police officer.

Two calls were made by citizens who heard gunshots, therefore, it is reasonable in the circumstances, that Officer Poirier intercepts an individual walking alone, in the area at 5 a.m. [ 26 ] Preliminary questions asked by the officer, while he is still in his patrol car, fall within the legitimate exercise of police powers. [ 27 ] However, in the opinion of the Court, from the moment when the police officer orders Mr. Perry not to touch his bag he is in a state of detention [4] . This state is formalized by the arrival of the two other police officers who surrounded Mr.

Perry. [ 28 ] According to the Court, the police had reasonable grounds to suspect a link between Mr. Perry and the shots heard: he walks alone in the area shortly after receiving the calls, he carries a bag over his shoulder and gestures towards it when the police officer addresses him and he behaves in a manner that suggests that he is looking for a way to escape. [ 29 ] At this point, the police were under an obligation to inform Mr. Perry of his detention for investigation purposes. However, the evidence is silent in this regard. The police admit that they informed Mr.

Perry of the reason for their presence, namely the calls received concerning gunshots. The fact remains that they did not inform him that he was being detained. [ 30 ] Investigative detention allows the police, if they reasonable grounds to fear for their safety, to conduct a preventative pat-down search. Rather, the police saw fit to search the contents of the bag that Mr.

Perry was carrying and in which he had a reasonable expectation of privacy. [ 31 ] In his testimony, officer Poirier specified that he did not proceed to a pat-down search because he could not have sensed the presence of a weapon or any dangerous object. The Court is surprised by this explanation since the bag in question is made of a flexible material which can allow the perception of an object such as a firearm [5] .

Even if this impression of the Court is erroneous, the fact remains that the powers of the police were limited to a pat-down search [6] . [ 32 ] The detention is arbitrary and the resulting search is unreasonable, considering the lack of disclosure made by the police officers. The Court finds that Mr. Perry’s constitutional rights, protected by sections 8 and 9 of the Charter , have been violated.

In light of the criteria set out in Grant , should the prohibited firearm be excluded from the evidence under section 24(2) of the Charter ? [ 33 ] The Supreme Court of Canada, in Grant [7] , sets out three criteria that the Court must analyze in determining whether the evidence obtained in violation of Charter rights should be excluded: • The seriousness of the state’s intrusive conduct; • The impact of the violation on the accused’s Charter rights; • The interest of society in the adjucation of the case on the merits. [ 34 ] The court must analyze and balance these criteria while keeping in mind the effect of the use of such evidence on society’s confidence in the justice system.

The seriousness of the Charter -infringing state conduct [ 35 ] The more serious and/or deliberate the actions of the police are, the more the Court must dissociate itself from them by excluding the evidence thus obtained, in order to preserve public confidence in the justice system. [ 36 ] It should be noted that the police intervention took place following calls received reporting gunshots, at around 5 a.m. No other information is given to the police. [ 37 ] Officer Poirier intercepts Mr. Perry, who is walking, in the vicinity, alone. There is a total absence of traffic in this residential area.

The main goal of the police officer is to see if any relevant information can be gathered, with respect to the calls received. [ 38 ] It is Mr. Perry’s hand gestures with regard to his bag that provides reasonable grounds to suspect a connection to the shots heard. Especially since these gestures are repeated despite the instructions given by officer Poirier. [ 39 ] The fact that Officer Poirier specifies that he saw Mr. Perry put his hand in the bag, while Officer Boucher mentions that the bag was closed, is not determinative in the circumstances.

Keep in mind that officer Poirier is seated in his vehicle when he sees the hand gestures. His position of observation could have distorted his perception of reality. [ 40 ] The Court considers that from the time the detention begins until the arrest, little time passes. Meanwhile, although not made aware of his investigative detention, Mr. Perry is told that police are present due to gunshots heard by citizens. [ 41 ] Mr.

Perry has the constitutionally protected right, to be informed of the reasons for his detention but considering that the police has reasonable grounds to suspect a connection with the shots, the seriousness of the police officer’s intrusive conduct is diminished in relation to the arbitrary detention. [ 42 ] Any search without a warrant is presumed to be unreasonable. In the circumstances, the search of the bag occurred following a detention that was deemed to be arbitrary.

The manner in which it was conducted was also inconsistent since it was not limited to a preventative pat-down search. [ 43 ] The Court emphasizes that the actions of the police took place in the context of shots fired about twenty minutes earlier and they feared for their safety, given the actions taken by Mr. Perry. [ 44 ] It is true that Mr. Perry has an expectation of privacy with regard to his bag and that the search is unreasonable, but the Court considers that the actions taken by the police do not reflect a desire to act in a manner that violates Mr. Perry’s rights.

The Court does not detect bad faith on the part of the police officers who acted for security purposes. [ 45 ] Counsel for Mr. Perry argues in the alternative, that racial profiling may have acted as an ulterior motive to justify the actions of the police. [ 46 ] In R c Legoute [8] , the judge thus sets out the onus that rests on the person alleging racial profiling. She writes: [74] Le fardeau d’établir l’existence d’un profilage racial appartient au requérant.

Dans Le , la Cour suprême prend connaissance d’office de l’existence du profilage racial durant les interventions policières et indique que le phénomène prend place quand la race ou les stéréotypes raciaux relativement à la criminalité ou à la dangerosité sont dans une quelconque mesure utilisées, consciemment ou inconsciemment, dans le choix des suspects ou dans la manière de traiter. [ 47 ] In making this argument, counsel for Mr. Perry acknowledges that she does not meet the required onus described in Le [9] .

The Court is of the opinion that the evidence, without going into the details of the facts that led the police to act, does not support a finding of racial profiling as a ground that could have justified their actions. The impact of the violation on the accused’s Charter rights [ 48 ] The arbitrary detention was short-lived and was carried out without any particular constraint, except the restraint of the arms during the search of the bag. [ 49 ] The search was limited to the bag worn over the shoulder. As soon as the weapon was found, Mr.

Perry was duly arrested and given his constitutional rights. [ 50 ] These facts differ from those that existed in the Legoute [10] case. In this case, the police intervened following a call for a fight involving a group of individuals. Upon arrival at the scene, the police chased the accused who fled. The police caught up with the accused, pepper-sprayed him and searched him, including his intimate areas, for a gun. The force used by the police and the highly

intrusive search justified the judge in finding a high incidence of the violation of the rights of the accused advocating the evidence. [ 51 ] The Court finds that the impact of the violation on Mr. Perry’s rights is not significant. The interest of society in the adjucation of the case on the merits [ 52 ] The charges against Mr. Perry are serious and the seized weapon is the main evidence available to the prosecutor. This is real and reliable evidence. Moreover, the region of Montreal is faced with a problematic presence of prohibited firearms [11] .

Therefore, society has an interest in seeing the case on the merits. [ 53 ] With regard to the third criteria, the Supreme Court wrote in Le [12] : [142] (…)The third line of inquiry becomes particularly important where one, but not both, of the first two inquiries pull towards the exclusion of the evidence. Where the first and the second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility.

Conversely, if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence. [ 54 ] Proceeding to balance the three criteria according to the specific circumstances of this case, the Court concludes, without encouraging the police to trivialize the obligation to respect the rights protected by the Charter , that the exclusion of the seized weapon would undermine the public’s confidence in the justice system. [ 55 ] For these reasons, the Court : DISMISSES the motion to exclude evidence. __________________________________ LINDA DESPOTS, J.C.Q Me Vicky Powell Lawyer of the accused Me Camille Rochon Lamy Lawyer of the prosecution Date of hearing: December 10 th , 2020