R. v. T.(J.), 2013 ONCJ 509

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Toronto 998-12-Y124185-00 DATE: January 18, 2013 Citation: R. v. T.(J.) , 2013 ONCJ 509 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — J.T., a young person (or “young persons”) Before Justice A.

Hall Heard on September 25, 2012, September 27, 2012, October 9, 2012, October 12, 2012, November 7, 2012, November 8, 2012, December 11, 2012 and December 12, 2012 Reasons for Judgment released on January 18, 2013 Kosta Stratos ............................................................................................................. for the Crown Brian Kolman ...................................................................................... counsel for the accused J.T.

HALL, J.: Introductory Statement [ 1 ] This case is about a firearm that was found by two members of the Toronto Police service in a taxi cab, in which J.T. was a passenger. [ 2 ] On the evening of April 20, 2012, at approximately 9:10 p.m., P.C. Boncordo and P.C. Brown, both members of the Toronto Police Services, were working on general patrol in the Kingston Road and Morningside Avenue area of Scarborough, in the City of Toronto. According to the evidence of the police officers, this is a high crime area.

They were in a marked police scout car travelling south on Morningside Avenue, close to Danzig Avenue. [ 3 ] There, they claim to have observed a taxi cab travelling west on Danzig Avenue approaching the traffic light at Morningside Avenue. The taxi cab that was driven by Mr. Faruq Sheikh was stopped by the police. J.T., the defendant, was the only passenger seated in the rear of the vehicle. He was directed, during the Police investigation, to exit the taxi cab. At that point, P.C. Brown saw a firearm in the foot well of the rear passenger seat area, where J.T. was seated.

He is alleged to be in possession of the firearm. [ 4 ] He is charged with numerous firearms offences under the Youth Criminal Justice Act . Counsel for J.T. brought a Charter application to exclude the firearm from the evidence. The application was heard as blended voir dire. The only source of evidence came from the four witnesses called by the crown. [ 5 ] The first issue that was raised was whether or not J.T. was arbitrarily detained contrary to

section 9 of the Charter . When he was detained for investigative purposes, it was argued that the officers did not have any reasonable suspicion to believe that J.T. was connected to any kind of criminal behaviour. [ 6 ] The second issue is whether or not the crown’s case has proven beyond a reasonable doubt that J.T. had the required knowledge and control of the firearm to establish possession of this object. Overview of the facts [ 7 ] On the 20 th of April 2012, Mr. Faruq Sheikh was driving his taxi cab in the Morningside Avenue and Kingston Road area, of Scarborough in the City of Toronto.

On Danzig Avenue, he picked up a lone passenger, J.T. He directed the taxi cab driver to take him to Kennedy Road, south of the 401 highway, also in the City of Toronto. The driver noticed he was carrying a knapsack type bag on his back, with straps over his shoulders. There were no noticeable characteristics of anything unusual about J.T. when he entered the taxi cab. From the cab driver’s perspective, namely, no change or smells of odour. [ 8 ] Before picking up J.T., the cab driver collected the car from another cab driver that operated the cab the previous twelve hours.

Before coming in contact, J.T., on the evening in question, the cab driver had about four or five other fares in and around the eastern part of the Scarborough area. [ 9 ] While driving north on Morningside Avenue, the cab driver observed a marked police car with the emergency lights activated behind him. The cab driver, at first, was not sure if the police wanted to get his attention or some other motorist. It is the cab driver’s view he was not speeding at the time. Even if he was, it would have been no more than five kilometres over the posted sixty kilometres zone.

Once the cab driver realized he was the object of the police’s attention, he told the passenger that the police wanted him to stop the cab. The passenger then asked, “Why the police want to stop you?” The cab driver was not able to provide a reason. [ 10 ] Both P.C.’s Boncardo and Brown were on general patrol in the Kingston Road and Morningside Avenue area, in a marked police scout car, travelling south on Morningside Avenue. The two police officers noticed the taxi cab approaching the traffic lights at Danzig Avenue and Morningside Avenue. It’s the evidence of P.C.

Boncardo that the taxi cab came to a rolling stop. They then turned north on Morningside Avenue travelling at high rates of speed. He estimated the speed of the taxi cab to be in the range of 85 to 100 kilometres per hour. P.C. Brown was driving the scout car and turned the car around, activated the emergency lights and tried to follow the taxi cab north bound on Morningside Avenue. [ 11 ] The taxi cab was eventually located going northbound on Morningside Avenue. The taxi cab came to a stop but not before the wheels skidded on the wet asphalt, according to the police. [ 12 ] P.C.

Boncardo testified that the taxi cab was travelling north. He speculated as to the possible reasons why this car was travelling, at what was described as a high rate of speed. Possibly, the driver had been threatened, or was avoiding the police. P.C. Boncardo went to the passenger side of the taxi cab and P.C. Brown went to the driver’s side. [ 13 ] P.C. Boncardo testified that he went to the front passenger window of the taxi cab, and when he arrived there, he smelled a strong odour of marijuana coming from inside the taxi cab, vindictive of the presence of a large quantity of marijuana. P.C.

Brown went to the opposite side of the taxi cab and spoke to the driver about him speeding. At that location, he did not detect any odour of marijuana coming from the taxi cab, however; when P.C. Brown went to the passenger side of the taxi cab, he testified that he detected the odour of marijuana coming from the taxi cab at that point. No marijuana was ever found in the taxi cab or on the person of J.T.

[14] P.C. Boncardo focused on the passenger in the rear of the taxi cab. He engaged the passenger in conversation, amongother things, as to his destination. J.T. responded, “Military Trail.” The officer tried to confirm, with the driver, the passenger’sdestination. The taxi indicated to the officer that J.T. requested him to take him to an address on Glenmorgan, which is another part ofthe city. P.C. Boncardo testified, as well, that he observed the passenger to be fidgety and was not wearing his seat belt in the rear seat ofthe taxi cab, as is required by the Highway Traffic Act (H.T.A.). P.C.

Boncardo testified before leaving the police scout car. He hadobserved the passenger’s shoulders and head moved forward, but could not tell for what purpose. [15] The passenger of the cab was requested to provide identification, because he was not wearing a seat belt. He providedthis, however; it was without a picture. P.C. Boncordo continued the conversation with the passenger, while he remained seated in thecab. [16] P.C. Boncardo remains immediately outside the rear passenger door of the taxi cab. During this period, J.T. also had aconversation by cell phone with his mother. [17] P.C.

Brown took both cab driver and passenger identifications to run their names on the police computer system. He ranthe passenger’s name first and there was no indication that J.T. had a criminal record, however; the officer then discovered a policebulletin claiming that J.T. was “armed and dangerous,” plus “access to guns.” The information on C.P.I.C. was one month old at thetime. [18] P.C. Brown testified that he was about to call the police officer responsible for the content of the bulletin. As a result, hedisengaged the on-board camera, not wanting sensitive information to be recorded.

He changed his mind, given the nature of theinformation. He wanted to alert P.C. Boncardo immediately of what he discovered. He did, however; he failed to reengage the on-boardcamera. As a result of the information received by P.C. Boncardo, from P.C. Brown, P.C. Boncardo directed J.T. to exit the taxi cab andhe conducted a pat down search with negative results. P.C. Boncardo testified the reason for this action, is for officer safety concerns. While he was doing that, P.C.

Brown testified that he just looked in the rear seat area of the taxi cab, and saw what appeared to him tobe a handle of a gun in the foot well of the rear passenger seat. [19] Both P.C. Brown and P.C. Boncardo took physical control of J.T. He was placed under arrest for gun possession relatedoffences. A more detailed search of J.T. revealed he had two cellphones and fourteen hundred ($1,400) in cash. The gun was removedfrom the taxi.

Positions of the parties [20] The defence argued that J.T. was detained, when the police officers stopped the taxi cab, regarding a Highway Traffic Act(H.T.A.) offence and that it had transitioned into a criminal investigation. When there was no basis or reason to suspect J.T. wasconnected to any criminal activity, at the time of detention, particularly given there was no legitimate officer safety concerns. The actionof the police officers is a breach of J.T. in

section 9 of the Charter of Rights. On the issue of possession of the firearm, it was argued thatJ.T. did not have possession. Particularly given, he did not have exclusive control of the taxi cab. In addition, other passengers were inthe cab on the same day prior to J.T. hiring the taxi cab. No one made any effort to search the taxi cab before J.T. engaged it, therefore;the firearm could have been placed in the foot well by someone else. The essence of the argument is, mere presence in the vehicle doesnot mean knowledge and control of the firearm. [21] The Crown, on the other hand, takes the view there was no breach of J.T.’s

section 9 Charter. On the night in question,the police were conducting a legitimate H.T.A. investigation. The information, the police discovered on the Canadian Police InformationCenter, (C.P.I.C.) justified the pat down search of J.T. The gun, found by P.C. Brown in the taxi cab, was a matter of plain view, and notthe consequence of a breach of J.T.’s

section 9 Charter right. On the possession question, the Crown argues, the only reasonableinference to draw from these circumstances is that the firearm belongs to J.T. He attempted to dispose of it, because the taxi cab hadbeen stopped by the police. The Crown argues further, that the camera in the taxi cab captured movements of J.T., which clearly suggestshe is disposing of the firearm.

The law: Charter analysis [22] The central issue was whether or not J.T. had established, on the balance of probability, that he was arbitrarily detained,within the test, established by the Supreme Court of Canada in Grant 2009 SCC 32 , 2009 S.C.C. 32, where at paragraph 44 thecourt defined detention as follows: Detention under ss.9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by significant physical orpsychological restraint.

Psychological detention is established either where the individual has a legal obligation to comply with therestrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she has no choice but tocomply. [at para 44, emphasis added] The court in Suberu stated, at paras. 24-25, that: ...this Court’s conclusion in Mann, 2004 SCC 52 , [2004] 3 S.C.R. 59, that there was an “investigative detention” does not meanthat a detention is necessarily grounded the moment the police engage an individual for investigative purposes.

Indeed, Iacobucci J.,writing for the majority explained as follows: Detention has been held to cover, in Canada, the broad range of encounters between police officers and members of the public. Even so,the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes ofidentification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”

but the constitutional rights recognized by ss. 9 and 10 in the Charter are not engaged by delays that involve no significant physical or psychological restraint.... ...To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter . Likewise, the Supreme Court held in R. v.

Mann (at paras. 34-35 ): The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence .

Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.

Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain.

The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest . [Emphasis added.] Findings and analysis [ 23 ] There is no dispute that the police officers had the legal authority to have investigated the taxi driver and the passenger for alleged H.T.A. violations, in the case at bar.

Therefore, I find that in the initial stage of the H.T.A. investigation, J.T. was not arbitrarily detained and unlawful. [ 24 ] The question that I must resolve is this: is there any evidence to support the investigative detention of J.T. particularly when he was directed to exit the vehicle and be subjected to a pat down search. [ 25 ] The taxi cab driver had no stake in this case. He does not know J.T. or any of the two Police officers.

The taxi cab driver did not notice any change of the odour in the vehicle when J.T. entered it. [ 26 ] The police officer, on the other hand, claimed to have detected a particularly strong odour of marijuana coming from the vehicle, especially in the rear. [ 27 ] No marijuana was found either in the taxi cab or on J.T. In my view, if there was such a pungent odour emanating the taxi cab, the driver would have detected it. I do not accept the evidence of the police officers that a strong odour of marijuana was emanating from the taxi cab. [ 28 ] P.C.

Boncardo testified that J.T. was fidgety when he interacted with him during the investigation. This might have been just nervousness on the part of J.T., a young person who had been confronted by the police. This factor by itself, or on the totality of the evidence before me, I find that this cannot be said to amount to reasonable suspicion. I make the same finding in relation to discrepancy with intended destination. [ 29 ] In my view, the police bulletin discovered on (“C.P.I.C.”), P.C.

Brown indicated J.T. was “armed, dangerous and had access to guns,” does not amount to reasonable suspicions that J.T. was involved in any criminal offence, for the following reasons. [ 30 ] The information was general. It lacks sufficient details or specificity regarding J.T. There was no evidence before me that demonstrated the information was even credible or reliable.

Given the other findings I have made earlier, the information from “C.P.I.C.,” standing on its own, as it is in this case, would not be sufficient to establish the presence of reasonable suspicion to justify an investigative detention, particularly when contrasted with the constellation of factors found in R v. Plummer 2011 O.J., No. 1034, at paragraph 24 . [ 31 ] It is my view that the gun would not have been discovered, had J.T. not been directed to exit the taxi cab. After considering the totality of the circumstances, I have concluded, at that stage of the investigation, J.T. was arbitrarily detained.

For the reasons I have indicated above, I find that J.T.’s

section 9 Charter right was breached. I shall now move the 24(2) analysis to determine if the firearm should be admitted into evidence or not. Exclusion of the Evidence: s. 24(2) of the Charter [ 32 ] The evidence that the Crown seeks to introduce, and which the defence seeks to exclude, is the loaded handgun that was found by P.C. Brown in the rear passenger foot well where J.T. had been sitting.

[33] In Grant, the Supreme Court of Canada recently revisited the test to be applied under s. 24(2) of the Charter indetermining whether the admission of illegally obtaining evidence would bring the administration of justice into disrepute. The Courtheld, at para. 71: A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewedin a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court mustassess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) theseriousness of the Charter-infringing state conduct (admission may send the message of the justice system condones serious statemisconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message thatindividual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2)application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances,admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking thecategories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins andsubsequent jurisprudence. [34] The first criteria, is the seriousness of the breach, as stated by Justice Molloy in R. v. Taylor [ 2011 ONSC 1737 ,2011] O.J.

No. 1356, this factor is “the one which has the most influence in my decision of this case.” The breach, in this case, was theunlawful detention of J.T., where he was directed to leave the taxi cab, and was subjected to a pat down search. This lead to thediscovery of the gun in the foot well. As a result of the investigation, J.T. was delayed on his journey, but the search was not intrusive. The infringement of his Charter right was not particularly significant. This was not a situation where there were multiple infringementsof the Charter.

This is not the kind of case where the police demonstrated a total disregard for the Charter rights of J.T. [35] The second criterion, impact on the Charter rights of J.T., this is the case of an unlawful investigated detention, where agun was found in the taxi cab in which J.T. was the sole passenger. There is a limited expectation of privacy in these circumstances, asopposed to a home. I hasten to say

section 8 of the Charter was never argued. The firearm was found in the rear foot well of the taxicab. This is not a case in which the impact on the accused has a significant effect on admissibility. The evidence is not conscripted andthere was no violation of the physical integrity of the accused, as would be the case. For example, with a strip search or cavity search. (That came from R. v. Taylor 2011 ONSC 1737 , [2011] O.J. No. 1356, para. 96. The investigation took place just after 9 p.m.,but was not for a lengthy period.

The breach must not be minimized, however; it was not the most serious. [36] The third criterion, society’s interest in an adjudication of the case on the merits. The evidence of the firearm is anessential part of the Crown’s case. Without this evidence, the case would collapse. This is real and reliable evidence. The Court ofAppeal in R. v. Blake 2010 ONCA 1 , [2010] O.J. No. 48 (Ont. C.A.) at para. 31 “Society’s interest is an adjudication on themerits is seriously undercut, where highly reliable and important evidence is excluded. Conclusion [37] I have examined carefully all the circumstances of this case.

I have carried out the inquiries directed by the SupremeCourt of Canada in Grant 2019 SCC 32 , [2019] S.C.J. No. 32. I have found that J.T. was arbitrarily detained. I have evaluatedthe balance of the three competing principles, and have found the most significant, in the context of this case, to be the seriousness of thebreach. In all the circumstances of this case at bar, the breach is not all that significant. I find that the balance is in favour of admittingthe evidence. I am in no way condoning the actions of the police in this case. A breach of this nature does not warrant the exclusion.

It ismy view to exclude real and reliable evidence in these circumstances, viewed in the long term, would bring the administration of justiceinto disrepute. [38] My finding is that the application to have the firearm excluded is denied under the 24(2) procedure of Grant. [39] Possession: There was no dispute that a loaded firearm was located in the taxi cab at the foot well, where J.T. was seated.The sole issue that must be determined is whether the Crown has proven beyond doubt that J.T. was in possession of the firearm.

Inother words, did J.T. have knowledge and control of the firearm that was found at his feet? The evidence on this point is circumstantial. [40] During the trial, they filed as an exhibit a video that was taken inside the taxi cab. This video depicts J.T. sitting in therear passenger seat of the taxi cab. I am unable to determine from this video that J.T. was disposing the firearm, as argued by the Crown. [41] I have considered the defence’s submission on this point that the gun could have been left in the taxi cab by some otherunknown person, at some other time prior to J.T.’s entering the taxi cab.

I am unable to accept this submission, because it is rooted innothing but speculation. There is no evidentiary basis to support such an assertion. In my view, a firearm is far too valuable a commodityto simply abandon in a taxi cab. In my view, the only reasonable inference to be drawn is that J.T. had the firearm in his possession andattempted to dispose of it, because he saw the police and realized the taxi cab was going to be stopped. Given where the firearm waslocated in the taxi cab, in the foot well, just where J.T. was seated.

I find that the Crown has proven beyond a reasonable doubt that J.T.was in possession of the firearm. [42] Given my findings, I invite submissions on the kind apple principle.

Released: January 18, 2013 Signed: “Justice A. Hall”