R. v. Dauda, 2011 ONCJ 799

Citation: R. v. Dauda , 2011 ONCJ 799 ONTARIO COURT OF JUSTICE (TORONTO REGION) BETWEEN: HER MAJESTY THE QUEEN Respondent - and - DAVID DAUDA Applicant J U D G M E N T Justice B. Knazan December 23, 2011 Appearances : Ms. Sobia Virk Public Prosecution Service of Canada Mr. David Heti Student-at-law, Public Prosecution Service of Canada Ms. Natasha Giuffre Counsel for the Applicant This is an application under s. 24(2) of the Charter to exclude the evidence of cocaine that the police found after they saw Mr. Dauda throw it over a fence. Mr.

Dauda submits that the admission of the cocaine would bring the administration of justice into disrepute as it was obtained in a manner that violated his right not to be arbitrarily detained under

section 9, his right to be informed promptly of the reasons for his detention under section10 (

a) and, his right to be informed without delay of his right to retain and instruct counsel under

section 10(

b) of the Charter . In brief, Officers White and Oroz arrested Mr. Dauda on October 15 th , 2010 in the late afternoon, after Officer White retrieved a plastic packet of crack cocaine from behind a wall at 30 Denarda Street in Toronto. The police had become suspicious of Mr. Dauda when they saw him suddenly change direction upon seeing them so they drove the car around to come to a point in the direction where he was walking. When they were about 10 metres away, they both saw him toss a small looney sized black plastic packet over a wall.

They got out of their car and White detained Dauda by grabbing him and holding him. Then White gave Dauda over to Oroz who held him for a disputed period of time, that is at least five minutes. During this detention, the officers did not advise Mr. Dauda of his right to retain and instruct counsel without delay and did infringe his right to be so advised under s.10 (

b) of the Charter . Nor could Officer White really recall if he told Mr. Dauda that he was being detained because of a drug investigation - he says that he might have but cannot recall. Mr. Dauda said the police never said anything about any drugs or reason other than that he was arrested for trespassing. Since Officer White cannot recall whether he told him the reason for the detention, there was also a violation of Mr. Dauda’s right under s.10 (

a) to be advised of the reason without delay.

The remaining issues are not so easily resolved. They are: 1. Whether the police violated Mr. Dauda’s right to be free from arbitrary detention under s.9 of the Charter. 2. Whether the admission of the evidence obtained by any of the violations that did occur would bring the administration of justice into disprepute. The Detention Mr. Dauda is 19 years old so he was either 18 or a few days past 19 on October 15 th of last year. He had no youth or criminal record then and does not now.

He testified that he came to the area of Denarda and Oxford Streets to play basketball; there is basketball court west of 30 Denarda Street. He received a phone call from a friend who was supposed to play with him and the friend told him that he was upstairs so he went to the building at 30 Denarda Street. He had to walk around what he described as a little hoop to get to the front door of the building as the side door was locked. He testified that as soon as he got there there was a police cruiser. The police officers came over and asked him if he lived in the building. He answered no.

He felt harassed because there were lots of people there, so he said “I know my rights.” As soon as he said that the police told him that he was under arrest for trespassing and put him in the police cruiser, though they first fully searched him. He testified that he waited for 10 or 15 minutes with one of the officers until the other came back and said “this is drugs”. The police charged him with possession of cocaine. Mr. Dauda withstood cross-examination.

The student-at-law acting for the Public Prosecution Service of Canada (PPSC) submits several contradictions related to his evidence about his plans to play basketball and his arrival at the area but none relating to his contact with the police, apart from how many questions he was asked. However, on this application under s.24 (2) of the Charter , the onus is on Mr. Dauda to establish the breach under s.9. Both White and Oroz also testified on this application, both to almost the same effect. They left the station at 5:23 p.m. and drove straight to the area of 30 Denarda about one and a half kilometres away.

Both saw Mr. Dauda walking through a park to the east of 30 Denarda, which would be completely on the other side of the building than the basketball court to the west where Mr. Dauda says that he was coming from. He was about 30 metres away when they observed him observe them. Both noticed him stop in his tracks and change directions. Officer White was immediately suspicious because of this turning around on seeing the police. He drove the car to a roundabout in front of 30 Denarda. There he saw Mr.

Dauda toss a small black plastic wrapped object over a wall with a wooden gate that was beside the building, Officer White described the action as not so much as a baseball throw as a toss. He testified that it was a toss, but then in a subsequent question, agent for the PPSC, substituted the word throw. It is not clear whether it was overhand or underhand on the evidence - there is no clear description of this action. At this point, Officer White strongly suspected that there was a controlled substance in the packet that went over the wall, based on his experience and how he has seen drugs packaged before.

He got out of the car, put his hand on Mr. Dauda and grabbed him. He cannot remember what he told him and he had no note of it. Nor does he have any note of what time he detained Mr. Dauda. He testified that it was about 5:35 p.m. when he first saw him. He toldhim either that he saw what happened or that he saw him toss that or, he referred to drugs. With no note, he cannot recall exactly what hesaid. Officer White turned Mr. Dauda over to Officer Oroz while he went to look for the tossed item. He could not gain access to the areabehind the wall without assistance so he looked for and found the superintendent.

He testified that this took 5 minutes but he has no noteof the time of arrest. He searched the area that he predicted would be the landing place given the trajectory of the throw. He immediately found a small blackplastic package in an area that had garbage. He returned and arrested Mr. Dauda for possession of cocaine, and at that point gave him hisright to counsel. Officer Oroz estimates that White was not gone very long, several minutes. But neither officer noted the length of the investigativedetention.

Officer White could not remember if he asked Dauda any questions, in addition to not remembering what he said to him. He agreed incross-examination that the subject of whether he lived there, the very thing that Mr. Dauda testified the officers asked him, may havecome up. Indeed, both officers’ memories and their notes of the investigative detention are so sketchy that it does raise the question of whetherthey are even describing something that occurred. Officer Oroz testified that he assumed that it was an investigative detention since hedid not hear what White told Dauda.

But it was Oroz who was doing the detaining. On the other hand, Officer White was very honest about what he did not remember, what he did not tell Mr. Dauda and the extent of hisgrounds, for what they were worth. This is not the testimony of someone reconstructing what happened to influence the court towarddetermining that there was no breach. As Justice Sopinka said in R. v. Smith, (SCC), [1989] 2 S.C.R. 1120 it is preferable to decide Charter issues on the factsand not the onus, but when the court is unable to, then it must resort to the correct onus. Mr.

Dauda was a good witness and notimpeached in cross-examination. The officers were clear in their testimony, not impeached in cross-examination, and their notes andmemories were poor. I am unable to make a finding that the arrest unfolded in the way Mr. Dauda related as opposed to the way that theofficers related. Given that the onus is on the applicant to show a breach on a balance of probabilities, I find that Mr. Dauda has notestablished that he was arrested for trespassing and I proceed to consider the grounds for detention on the basis that the detentionoccurred as the officers described.

Reasonable Suspicion Officer White detained Mr. Dauda and he was frank about his grounds. They were, 1) that Mr. Dauda stopped and changed directions when he saw the police;

2) that it was a high crime area meaning drugs; and 3) that he saw him toss a small black plastic packet over the fence. He also added at one point that Mr. Dauda walked right by the entrance to 30 Denarda but said that this was nothing in itself. All of this,given his experience with drugs, made him suspect that Mr. Dauda had been in possession of drugs. A detention based on reasonable suspicion that a crime has been committed is not arbitrary: R. v. Grant, 2009 SCC 32 , [2009] 2S.C.R. 353 paragraph 55.

More specifically, as the Supreme Court stated in Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59: The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’ssuspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable groundsfigures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated inthe criminal activity under investigation.

The overall reasonableness of the decision to detain, however, must further be assessed againstall of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’sduty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.Paragraph 34, emphasis added.

It is helpful to set out the second prong of the Waterfield test: Whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such invasion isreasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for theliberty and fundamental dignity of individuals. Mann paragraph 26. As for reasonable suspicion, it is something less than reasonable grounds. It is defined in R. v. Mann as equivalent to the articulablecause described in R. v. Simpson, (ON CA), [1993] 12 O.R. (3d) 182.

There must be a constellation of objectivelydiscernible facts which give the detaining officer reasonable grounds to suspect that the detainee is implicated in the activity underinvestigation. Importantly, the Supreme Court in Mann, confirmed what the Ontario Court of Appeal held in Simpson, that a hunchbased on intuition gained by experience cannot suffice as articulable cause. “The power to detain cannot be exercised on the basis of ahunch”: Mann, paragraph 35.

The Crown submits that all of the factors must be considered together and put forward several authorities for the proposition that it is anerror to isolate the factors. I agree with that submission, which follows obviously from the reference to “constellation of objectivelydiscernible facts” in Simpson. It does not mean however, that a court should not analyze each factor to see if it is an objectivelydiscernible fact and what it contributes to the constellation. With that in mind, I turn to Officer White’s reasonable suspicion from an objective point of view. The first fact is that Mr.

Dauda stopped in his tracks and turned direction when he saw the police. The turning is objectively discernible;the significance is neutral or weak. There are a number of reasons why any citizen would not want to make eye contact with a policeofficer or walk towards them. Mr. Dauda was a very young black man walking in an area that the evidence shows from the secondfactor the police considers to be a high crime area with a lot of drugs. Maybe the person just wants to avoid contact with the police forinnocent reasons. The

interpretation that the officers gave the action is also possible, but it is only one factor, and a weak one at that. The next factor that the police relied on is that it is a high crime area; the park in between the two buildings is a high drug area. Thisbold assertion standing alone cannot provide any articulable cause without some evidence of what it means to the police officer. It givesno information as to what the word “high” means. It gives no information as to the type of persons who commit the crimes or how theycommit them. When the drug is added, it gives no information of who deals in what drugs and in what way and in what time of day.

Officer White had very little experience at the time of this detention. He was sworn in as an officer in January 2009, so he had been anofficer less than two years. There is no evidence as to how many drug transactions that he had seen or how many times he has seenpersons in possession of drugs turn and change directions. This contrasts with the case of R. v. Hanson, [2009] O.J. No. 4152, on which the prosecution relies.

There Justice Garton found that anexperienced officer, based on his experience could form reasonable grounds to believe that a drug transaction had taken place and couldconsider a flicking motion that he saw as a ground for believing that a drug transaction had taken place. Here is the evidence of the officer’s experience in that case: Over the course of his twenty-two year career as a police officer-most of which has been spent in 51 Division-Det. Dey has arrestedthousands of individuals for street-level drug dealing and has witnessed literally hundreds of street-level drug deals.

From 1992 until1999, he patrolled the areas of St. Jamestown and Regent Park on foot and on bicycle. From 1999 until 2005, he was with the CanineUnit but continued to spend a lot of time doing drug work within 51 Division, which involved apprehending and arresting individuals fordrug offences. In 2005, Det.

Dey returned to 51 Division and became a sergeant in charge of police officers on bicycle and foot patrol.Hanson, paragraph 22 Officer White had none of that experience, and there was no evidence as to how many arrests he had done and how many tosses andhidings he had seen and how many times he had seen drugs wrapped in black plastic. It is correct as submitted that the proper test in R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241 is, would a reasonable personplaced in the position of the officer, be able to conclude there were indeed reasonable grounds to make, in that case an arrest, and herereasonable grounds to detain. I also accept, for the purposes of this case that it is correct as stated by the British Columbia Court of Appeal, in R. v. Luong, 2010BCCA 158 , [2010] B.C.J.

No. 918 another case on which the prosecution relies, that “Objective grounds must be measuredfrom the standpoint of the officer with his skills and knowledge rather from the standpoint of the average citizen,” quoting from LaFave,Search and Seizure A Treatise on the Fourth Amendment. But here, Officer White’s skills and knowledge were not established. All hesaid was that it was a high drug area, he had seen drugs wrapped and he used his experience. I have already commented on the knowledge and there is further evidence about his skills.

He did not make notes of the time ofdetention or arrest though he wished that he had; he did not know whether he told Dauda why he was detaining him, or what he told him,he did not give him his rights to counsel though he had been trained to do so, he had to keep Dauda in the car for at least 15 minuteswhile he consulted his sergeant about whether to release Mr. Dauda or bring him in. Further he grabbed him for this detention whenthere is no evidence of any need of physical detention in this case whatsoever, a point to which I will return.

His skills and knowledge arenothing like the veteran’s in Hanson, and they do not extend much beyond that of the average person. Objectively reliance on this beinga high drug or crime area is not strong on these facts. As for the officers’ observation, that they both made, it was at 10 metres, of a still unclear toss or throw of an object the size of a looney. It was black plastic; at my request, Officer Oroz produced it. I accept that White saw the object, size and colour.

I do not accept that hecould have seen the texture or material from that distance in that period of time to determine that it was plastic - this is probably a detailthat he filled in after the fact. In any event, he considered all of the factors in coming to his reasonable suspicion but the turning around from the police and the highdrug area contribute little for the reasons that I have just given. The real ground is tossing the object. It is not a crime to litter or toss an object. Other items are wrapped in black. The act could be an indication of a crime and the officerneed not consider every explanation for

an act that could have innocent and suspicious explanations: R. v. Bush (2010), 2010 ONCA554 , 259 C.C.C. (3d) 127. But the court must still evaluate whether an officer’s suspicion rises to the level of reasonablesuspicion - a legal concept, or is just a hunch that is not sufficient as explained in Mann and Simpson. In considering this question, in my opinion it is not necessary to allow for the dynamic nature of the situation referred to in R. v. Golub(1997), (ON CA), 117 C.C.C. (3d) 193 explaining the difference between reasonable grounds for arrest when

evaluating an officer’s grounds and reasonable grounds for arrest when evaluating an information to obtain a search warrant. There inreference to arrest, the court said: In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercisedmust be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a searchwarrant. Often, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is nota luxury the officer can afford.

The officer must make his or her decision based on available information which is often less than exact orcomplete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of ajustice faced with an application for a search warrant. Paragraph 22. The important words here are the nature of the power exercised and the context within which it was exercised. There are detentions andthere are detentions.

When the police know that a crime has been committed and want to investigate someone then rapid decisions mustbe made and the context may allow for the difference in scrutiny the Court of Appeal is referring to in Golub when it discusses arrest.But here, there was no crime reported; the police were investigating. Mr. Dauda was walking; at that point there was no indication hewas going anywhere. They could have asked him a question or two without detaining him as Mr. Dauda says they did - do you live here - what did you throwover the fence? There was time to reflect.

There was no need to get out of the car and grab him. Detention, particularly physicaldetention, was not necessary on the second branch of Waterfield. In Grant, supra, the Supreme Court stated at paragraph 56 that the approach taken in Mann to permitting investigative detention basedon reasonable suspicion mirrored the framework developed for assessing unreasonable searches and seizures under s. 8 of the Charter.The court stated: Under R. v.

Collins, (SCC), [1987] 1 S.C.R. 265, and subsequent cases dealing with s.8, a search must be authorized bylaw to be reasonable, the authorizing law must itself be reasonable and the search must be carried out in a reasonable manner. If the framework for analyzing arbitrary detention mirrors the Collins framework, then a detention must be carried out in a reasonablemanner. The allegation of arbitrary detention was sufficient to raise the issue in this case, however, it was not specifically argued. Therefore, I do not find this as a separate ground for finding the detention arbitrary.

However, considering Officer White’s grounds, finding little objective support for his reliance on this being a high drug area, finding theturning around and changing direction when seeing a police car a neutral or weak factor, and given the context which allowed for a morereflective approach and investigation, and considering seeing the object thrown over the wall, I do find that objectively, what White hadwas a hunch within the meaning of Simpson and Mann. It turned out to be a good hunch but that fact cannot be used to justify thisdetention after the fact.

Officer White fell just short of having reasonable suspicion objectively considered and his detention of Mr.Dauda was arbitrary. Section 24(2) of the Charter In order to determine whether admitting the evidence of the cocaine that was obtained in a manner that breached Mr. Dauda’s rightsunder ss. 9, 10(

a) and 10(

b) of the Charter, would bring the administration of justice into disrepute, I must consider (1) the seriousness ofthe Charter infringing state conduct, (2) the impact of the breach on the Charter protected interests of the accused and the (3) society’sinterest in the adjudication of the case on its merits.

(1) The seriousness of the Charter infringing state conduct The Crown admits that the breach of s.10 (

b) in this case was serious. For an undetermined length of time, Mr. Dauda was detainedwithout being advised of his rights to counsel. He was either 18 or just 19 years old and had never been convicted of any offence. Officer White knew he should give the rights to counsel upon detention - he just did not and neither did Officer Oroz who was holdingMr. Dauda for at least 5 minutes before he was arrested. This is not purposeful denial of rights but nor can it be held to be good faith. It iscareless denial of rights that the police knew that they had to give.

On the s.9 breach, the officers were close to having reasonable suspicion and the Crown puts this forward as a reason for finding that thebreach is not serious. But the reasonable suspicion standard is not a high one to begin with, so being just below it, while less serious than

having no grounds does not lessen the seriousness of what occurred. A citizen was walking when the police jumped out of the car andinstead of exploring their investigative alternatives, which the Supreme Court does canvas in Grant, and just talking to him, theyphysically grab him and hold him, do not tell him what for in any meaningful way and do not give him his rights to counsel. This is acase where the cumulation of the breaches makes the less serious ones more serious. As well, for a young man to be grabbed and not to be advised of the reason as required under s.10 (

a) is also serious. The purpose of s.10 (

a) has been determined by the Court of Appeal in R. v. Nguyen (2008) 2008 ONCA 49 , 55 C.R. (6th) 82 to be to inform theperson of the reasons and give meaning to s. 10 (

b) so that a detainee can decide whether or not to exercise that right meaningfully. Butthese purposes are not exhaustive. Knowing why you are detained by the police must be less frightening and strange than not knowing,especially for such a young man with no criminal record. And the purposeful

interpretation of s.10 (

a) becomes more significant whenthe s.10 (

b) right is violated because at least a detainee who is told that they can call a lawyer will know that they will be told at somepoint why they are being detained. Further the fact that Officer White would even mention that Mr. Dauda walked past the front door of the building as noteworthy, thoughin the same breath he said it was nothing by itself, shows the frame of mind of the police. It is not noteworthy that a man walked past adoor; it is meaningless. Once they saw this young man see them and turn around they followed him and they were determined toinvestigate him, no matter what he did.

So although the detention was short, the breaches were serious. 2) The impact of the breach on the Charter protected interests of the accused. The cocaine that the police found on the other side of the wall was discoverable even without the detention of the accused. It is correctthat the connection between the breach and the discovery of the evidence is temporal and not causal, but temporal is sufficient of courseto bring the cocaine within the meaning of “obtained in a manner” under s.24 (2). The impact of the s.9 breach on the Charter protectedright is minimal.

Similarly the accused gave no statement and therefore the breach of his rights under all three sections of the Charter led to no evidencebeing elicited other than the cocaine itself, real evidence that existed except for the breach. However, the prosecution is not correct in restricting the analysis of the impact of the breach to the question of whether or not thediscovery resulted. Serious breaches of Charter rights can have an impact on the interests that those rights are meant to protect. Oneimportant right is to walk freely in the street and not be detained without grounds.

The nature of the breach can impact more or less onthose interests. As the Supreme Court said in R. v. Grant: The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on theaccused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, howeverhigh sounding are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. Paragraph 76.

In Grant, the Court gave examples using s. 7(paragraph 77) and s. 8 (paragraph 78), but not s.9. To have your arm grabbed arbitrarily, bya uniformed police officer in public, (Mr. Dauda testified that there were other people around), is not only a serious breach but alsoseriously intrusive with a significant impact on the interest that the right is meant to protect. It was entirely unnecessary to jump out ofthe car and grab Mr.

Dauda, and although I did not rely on this in finding a breach of s. 9 because it was not argued and the Crown hadno opportunity to respond, it is fair to use it in the s. 24(2) analysis as all of the circumstances will be relevant to that issue and it was theCrown’s evidence that officer White grabbed Dauda’s arm. The second Grant category, in isolation, favours admission but not conclusively.

(3) Society’s Interest in the Adjudication of the Case on its Merits The third category of factors is whether exclusion would bring the administration of justice into disrepute. This is definitely real evidence as discussed above in relation to the second category. It is essential to the prosecution’s case. Sodepending on why it was being excluded its exclusion could bring the administration of justice into disrepute.

But, this is 3.75 grams of cocaine - a charge of simple possession. The majority of the Supreme Court in Grant holds that the seriousness of the charge has the potential to cut both ways. But the context of the discussion shows that the court is concerned with serious cases. Less serious cases will always cut only one way and that is that exclusion is less likely to bring the administration of justice into disrepute. Although it is a hard drug, it is clearly possession of an amount that could be for personal use, nothing else is suggested.

Once the youth of the detainee, the accumulation of breaches, and the physical detention when none was initially inquired is considered, exclusion would not bring the administration of justice into disrepute. The final decision on whether the applicant has met his onus under s.24 (2) always involves a conclusion after applying the Grant framework. The balancing of all the factors is the decision of the judge and cannot be reduced to a formula. The impact, the second factor in the Grant analysis favours admission but not completely and the number of breaches and their seriousness favours exclusion.

Exclusion would not bring the administration of justice into disrepute when an officer knew what he had to do under s.10 (

b) and did not do it. Five minutes may seem short, but it depends on what is happening to you. I have concluded that the admission of the cocaine would bring the administration of justice into disrepute and I order it excluded. _________________________ Brent Knazan Ontario Court of Justice December 23, 2011