)) HER MAJESTY THE QUEEN – v. –, 2010 ONSC 701

CITATION : R. v. Reid, 2010 ONSC 701 COURT FILE NO.: 25/08 DATE: 20100427 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – RENALDO REID )) )) )) )) ) )))))) A. Faith , for the Crown M. Friedberg , for the Accused REASONS ON CHARTER APPLICATION GARTON J. : [ 1 ] The accused, Renaldo Reid, age 23, has applied pursuant to s. 24 (2) of the Charter to exclude certain evidence obtained following his arrest on various firearms offences arising from a shooting incident on June 19, 2006. Mr.

Reid alleges violations of his ss. 7, 8, and 9 Charter rights. [ 2 ] The accused submits that the police did not have the necessary grounds for either an investigative detention or an arrest. It is also alleged that the police used excessive and gratuitous violence in effecting the arrest, which resulted in Mr. Reid sustaining a cut to his chin. The blood from that injury stained his shirt, which was later seized by police and submitted to the Centre of Forensic Sciences for DNA testing.

A DNA profile developed from the blood on the shirt matched a DNA profile developed from hairs found in a bag containing two loaded firearms, one of which is linked to the shooting incident in question. [ 3 ] Gunshot residue tests were performed on Mr. Reid’s hands while he was at the hospital and waiting to be seen by a doctor. The tests later proved positive for gunshot residue (GSR). [ 4 ] Mr.

Reid’s shirt was seized and the GSR tests were performed without his having been given an opportunity to consult counsel. [ 5 ] The defence submits that the blood on the shirt and all the scientific evidence derived from it, as well as the GSR test and its results, should be excluded as evidence at this trial. The defence also submits that reference to all of these items should be excised from the information to obtain a DNA warrant, which required Mr. Reid to provide a sample of his blood.

The position of the defence is that if these matters were excised, there would be no basis on which the warrant could have been granted. Evidence [ 6 ] On June 19, 2006, at 6:30 p.m., Sgt. Cheryl Sanson learned through the police dispatcher that gunshots had been heard in the area of Mount Olive Drive and Kipling Avenue in Etobicoke. Sgt. Sanson continued to listen to the information being relayed by the dispatcher from 911 callers as she made her way to the scene. Callers reported hearing the rapid succession of gun shots. People were scattering.

Descriptions of various suspects were given. [ 7 ] At 6:34 p.m., Sgt. Sanson heard that two males had run into the building closest to Kipling Avenue at Kipling and Mount Olive (a reference to 1 Mount Olive). The first suspect was described as having a gun under a dark jacket. He was wearing a white tank

top and his hair was braided tightly to his head. The other suspect was wearing a maroon shirt. [ 8 ] Sgt. Sanson testified that in her mind, a tank top or “muscle” shirt differs from a regular tee shirt in that the tank top has no neck or sleeves. [ 9 ] When Sgt. Sanson arrived on scene at 6:35 p.m., she saw a group of people in the driveway between the buildings at 1 and 3 Mount Olive Drive. One witness advised her that males had been shooting at each other across the street. A vehicle was involved.

One of the suspects, who ran north on Kipling, was described as carrying a handgun and wearing a long white tee shirt and blue jeans. [ 10 ] Another witness provided further information regarding the respective positions of the shooters; that is, towards the back of North Albion Collegiate on the north side of Mount Olive, and an area near the underground parking lot on the south side of Mount Olive. Sgt. Sanson detailed two police officers to guard those areas. She also detailed officers to close off all vehicular and pedestrian traffic on Mount Olive Drive between Kipling and Silverstone Drive. [ 11 ] Sgt.

Sanson testified that a Metropolitan Housing Security Guard by the name of “Lennon” approached her and began to pass on information he was receiving from people calling him on his cell phone. Lennon told her that one suspect was described as a black male wearing or with a black jacket. He had a sawed off shotgun and was wearing a white muscle shirt. He had corn rows in his hair. The gun was wrapped in a shirt. He was seen going into the second unit on the right from the north entrance of 1 Mount Olive.

The apartment described by the caller – that is, the second unit on the right – is actually Unit 68, although Sgt. Sanson did not know the number at the time. The description provided by Lennon was similar to the description of the suspect broadcast over the police radio at 6:34 p.m. [ 12 ] Lennon also advised Sgt. Sanson that “the mom lives in Unit 75.” Sgt. Sanson took this to mean that one part of the family lived in the second unit on the right and that “the mom” lived in Unit 75. [ 13 ] At 6:40 p.m., after learning the location of one of the shooters and that he may still be armed, Sgt.

Sanson asked that the Emergency Task Force attend. [ 14 ] The building at 1 Mount Olive Drive consists of thirteen townhouses. Six of the units run along the west side of the building; seven units run along the east side. A narrow hallway – 3 feet and 9 inches in width – runs down the middle. Each unit has a door off the hallway, as well as a back door leading outside to a small yard. The back doors of the units on the east side of the building face onto Kipling Avenue. [ 15 ] In terms of securing 1 Mount Olive Drive, Sgt.

Sanson testified that she only had enough officers to cover the north, south and west sides of the building. Officers Halagian and Skolly, who were posted at the north west corner of the intersection at Mount Olive and Kipling, had a view of the east side but were not in a position to prevent pedestrians from entering or leaving the units on that side. [ 16 ] Officers Halagian and Skolly took up their posts at Mount Olive and Kipling at 6:40 p.m. Officer Halagian remained there until 8:05 p.m. P.C. Skolly remained until 8:25 p.m. Throughout that time, the police presence in the area was obvious. P.C.

Skolly testified that there were three or four scout cars and eight to ten uniformed officers from 23 Division on scene. The lights in her scout car, which was blocking access to Mount Olive Drive, were activated throughout the time she was guarding the intersection. In addition, all members of the Emergency Task Force (the “ETF”), as well as a canine unit, had arrived by 7:15 or 7:20 p.m. [ 17 ] Sgt. Laufer was in charge of the ETF team, which included Officers Fotopolous, Morris, Parliament, Hughes, Daley, Hill and Lawrence. Sgt. Sanson conducted a briefing in which she advised Sgt.

Laufer and the other officers as to the location and description of the suspect; that is, that he was a black male wearing a white muscle shirt and corn rows, and was seen going into 1 Mount Olive Drive, second unit on the right from the north entrance. None of the ETF officers, with the exception of Sgt. Laufer, made notes at the time; rather, they made their notes at the end of the day and after completing other calls. P.C. Fotopolous did not make his notes until the following day. In making their notes, the officers relied on Sgt.

Laufer’s notes for the times at which various events took place. [ 18 ] Members of the ETF entered 1 Mount Olive Drive on two occasions that night. The first entry was around 7:40 p.m. By that time, the ETF, along with the canine unit, had contained access to Unit 68. A knock on the door was answered by a person who identified himself as Clayton MacFarlane. MacFarlane, who did not match the description of the suspect, indicated that he had been babysitting five children all afternoon and that no one had entered the apartment. Children could be seen or heard in the residence.

The officers left the building after their interchange with MacFarlane, which lasted about two minutes. [ 19 ] At 7:44 p.m., Sgt. Laufer reported his encounter with MacFarlane to Sgt. Sanson, who asked him whether the officers had actually entered the apartment and whether MacFarlane appeared nervous. Sgt. Laufer advised that they had not gone into the residence and that MacFarlane had appeared very nervous. A CPIC check disclosed an outstanding warrant for MacFarlane’s arrest on a drug trafficking charge. Sgt. Sanson asked Sgt.

Laufer and his team to assist in the arrest of MacFarlane. [ 20 ] At 8:10 p.m., the ETF officers entered 1 Mount Olive Drive again, this time through the north entrance. Sgt. Laufer held the door open and the team, led by P.C. Fotopoulos, went in. The layout of the small foyer is such that the officers were required to take a few steps east before turning right or south in order to have a view down the hallway. Testimony of P.C. Fotopoulos [ 21 ] P.C. Fotopoulos testified that as he turned to his right, he saw a male, later identified as Mr. Reid, at the doorway of Unit 68.

The male matched the description of the suspect provided by Sgt. Sanson; that is, he was a black male wearing a white tank top and was in the vicinity of Unit 68, which the suspect had reportedly entered. The fact that the accused immediately fled upon seeing the police further strengthened P.C. Fotopoulos’ belief that he was the suspect involved in the shooting. [ 22 ] P.C. Fotopoulos recalled that Sgt. Sanson’s description of the suspect also included a height of “6 feet plus” (the accused is over 6 feet tall), and that he was wearing dark pants (the accused was wearing dark pants).

These latter two descriptors were, in fact, not

part of the description provided by Sgt. Sanson. It would seem that following these events, P.C. Fotopoulos conflated in his mind the actual appearance of the accused in terms of his height and the pants he was wearing with the description given to him by the sergeant. [ 23 ] P.C. Fotopoulos testified that Mr. Reid was facing into the hallway or walking towards the hallway from the apartment when he first saw him. The door to Unit 68 was open. The accused made eye contact with him and then ran south down the hall. Fotopoulos yelled “Stop” but Mr.

Reid continued running until he reached the door of a unit further down the hall, later confirmed by Fotopoulos to be Unit 75. The distance between Units 68 and 75 is about 84 feet. P.C. Fotopoulos testified that Mr. Reid tried to open the door to Unit 75 but it was locked. He then went a little further south, stopped, turned toward the officers and yelled at them, telling them to “fuck off,” “get lost” and asking, “Who the fuck are you guys?” [ 24 ] P.C. Fotopoulos ordered Mr. Reid to turn his back to the officers and walk backwards towards them.

Fotopoulos acknowledged that he had no note in his notebook about giving this command to the accused. Nor did he mention having made this particular command during his testimony at the preliminary hearing. [ 25 ] P.C. Fotopoulos ordered the accused to keep his hands on his head. However, Mr. Reid kept dropping his hands in front of his body. P.C. Fotopoulos testified that this was of great concern to him given the fact that the accused could have been reaching for a weapon concealed in his waistband and given the overall circumstances.

Those circumstances included the fact that the officers had attended on scene as a result of a gun call. Fotopoulos had seen the shell casings on the ground outside, which confirmed that whoever had a gun was prepared to use it. One of the armed suspects was reported to have fled to this very building. In addition, the interaction between the officers and Mr. Reid was taking place in a hallway, which P.C. Fotopoulos described as a “horror show,” and which other officers referred to as a “fatal funnel”.

They testified that hallways are particularly problematic because there is no place to go if someone starts shooting. There is a problem with ricocheting bullets. Innocent residents may walk into the hallway at any moment and get caught in the crossfire. [ 26 ] P.C. Fotopoulos testified that when Mr. Reid was about 25 to 30 feet from him, he ordered him to stop walking backwards and to kneel. The accused went to his knees, but continued to drop his hands in front of him. He was still yelling at the officers. At that point, Fotopoulos decided to approach Mr.

Reid “to get him under control and to control the situation so that no one got hurt”. [ 27 ] P.C. Fotopoulos was carrying a fully-loaded shotgun that was ready to be fired. He could not, in the circumstances, put down the gun. There was no sling on the gun. Since his hands were not free, he used his foot to bring the accused under control. He testified that he shoved Mr. Reid with his foot in the upper area of his back or between his shoulder blades to get him down as fast as possible. The force applied caused Mr. Reid to fall flat down onto his stomach.

When asked to describe the force used on the accused, Fotopoulos testified, “A lot of force. He is a big man so it took a lot of force to get him down to the ground.” [ 28 ] Officers Parliament and Morris rushed in and attempted to handcuff Mr. Reid. However, Mr. Reid struggled, resisted giving his hands to the officers, and was trying to get back on his feet. P.C. Fotopoulos was telling him to stop resisting, stop fighting and to give up his hands. Fotopoulos testified that at that point he decided his “only option was to step on the back of [Mr. Reid’s] head to control him”.

By putting his foot on his head, P.C. Fotopoulos was able to keep Mr. Reid’s head, as well as the rest of his body, on the floor. This enabled Parliament and Morris to take hold of the accused’s hands and handcuff him. Mr. Reid was then picked up and escorted out of the building. P.C. Fotopoulos noted that Mr. Reid was bleeding from an injury to his face – an injury which he acknowledged having caused, either when he push-kicked the accused to the floor or when he used his foot to keep his head down. [ 29 ] P.C.

Fotopoulos testified that he remained somewhere in the vicinity of Units 65 to 68 prior to approaching Mr. Reid and while ordering him to walk backward towards him. The rest of the team was behind Fotopoulos. Everything happened very quickly. Fotopoulos estimated that there was only a minute or a minute-and-a-half between the time that Mr. Reid took off down the hall and the time that he approached the accused and pushed him to the floor. [ 30 ] P.C.

Fotopoulos acknowledged that the accused’s hair did not match the description of the suspect’s hair: it was not in corn rows but was “completely dishevelled” and looked as though it had been “altered.” Testimony of P.C. Parliament [ 31 ] P.C. Parliament testified that he was the third ETF officer to enter 1 Mount Olive on the second occasion. His initial focus was on Unit 68, which the officers intended to clear of people and where MacFarlane, who was to be arrested, was located. However, as he entered, he heard P.C. Fotopoulos yelling “Stop! Police!” and saw Mr.

Reid at the end of the hall in the area of Unit 75. Mr. Reid was running around or “darting” from side to side and yelling back at the officers, who were stacked or lined up against the wall five or six feet north of Unit 68. P.C. Parliament testified that Fotopoulos was telling the accused to keep his hands in the air and to keep showing his hands. Mr. Reid kept dropping his hands down to his waist area. Fotopoulos called the accused back towards the team and then got him to go down on his knees to effect the arrest.

Parliament testified, “[He] is turned around and then as we start approaching the male, he starts getting up. He is pushed down to the ground and restrained. He is fighting to get away and he is held down to the ground. We restrain him and I cuff him with his hands to the back”. [ 32 ] P.C. Parliament testified that Fotopoulos was yelling commands at Mr. Reid for what seemed to be a long time but in reality was probably only a minute or two. [ 33 ] P.C. Parliament testified that when he first saw Mr. Reid, he was facing the officers and acting “weird”: “He is not keeping his hands down.

He is not - usually when you talk to people with a gun pointed at them they kind of like freeze and he didn’t want to do that. He was looking around trying to get a way out. To me, it appeared like he was trying to get out … away from us in the hallway.” Even as Mr. Reid complied with the order to walk backwards towards the officers, he was “looking and fidgeting and appeared to be looking for a way to get away”. He also continued to yell at the officers. P.C. Parliament estimated that Mr. Reid walked backwards for a distance of about 10 or 15 feet. [ 34 ] P.C. Parliament testified that when Mr.

Reid went to his knees, he was about 20 feet north of Unit 75. His hands were still going down towards his waist area, which caused the officer great concern in terms of executing a safe arrest. P.C. Parliament explained

that if the accused’s hands were on his head, it would take him a longer time to reach for a gun in his waistband if he were so inclined. When a person obeys the command to put his hands on his head, the officers can approach and then handcuff him by simply taking hold of one hand and then the other. That did not happen in this case because Mr. Reid’s hands were off to the side and “heading towards his stomach” as the officers approached. Mr. Reid was also looking around, trying to see where the officers were in relation to him. [ 35 ] P.C. Parliament testified that he did not actually see Fotopoulos force Mr.

Reid to the floor as he was concentrating on freeing his hands of his firearm. By using the sling on his submachine gun and letting it hang behind his back, Parliament was able to assist in handcuffing the accused. He testified that at one point he was on top of Mr. Reid, pushing his chest into Mr. Reid’s back and putting all his weight on him in an effort to get hold of Mr Reid’s hand. Mr. Reid was trying to get up. P.C. Morris was struggling to take hold of the accused’s other hand. [ 36 ] P.C. Parliament did not see Fotopoulos step on Mr. Reid’s neck.

However, he testified that in a situation like this, it is important to keep the entire body of the person being arrested down on the ground. He stated that in his experience, it is very difficult to handcuff someone who does not want to be handcuffed. According to P.C. Parliament, Mr. Reid was fighting hard not to be handcuffed. Testimony of P.C. Morris [ 37 ] P.C. Morris testified that when the ETF entered 1 Mount Olive Drive the second time, there was still concern that the suspect was in the building. P.C.

Morris’ role evolved from containing the outside of Unit 68 to being somewhere behind the “stack” of officers who entered the building. Upon hearing that someone was in the hallway, he pushed past the other officers covering Unit 68 and moved up to where Fotopoulos and Parliament were standing, which was close to Unit 68. Fotopoulos and Parliament were in front of him and partially obstructing his view. He heard Fotopoulos yell “Stop!” and saw the accused in the area of Units 75, 76 or 77, or somewhere near the end of the hallway. Fotopoulos was ordering Mr.

Reid to turn around, put his hands in the air, and to walk backward towards the officers. Mr. Reid appeared to be looking for an avenue of escape and was “jumpy.” He was not following Fotopoulos’ command to keep his hands up, but he did walk partly down the hall and then knelt. He continued to drop his hands in front of him, which caused P.C. Morris to have concern that he had a firearm. P.C. Morris also had safely concerns with respect to Unit 68. [ 38 ] P.C. Morris recalled P.C. Fotopoulos ordering Mr. Reid to lie down on the ground. I note that Fotopoulos made no mention in his testimony of giving this order.

In any event, P.C. Morris testified that after the accused was on his knees, he continued to drop his hands. Officers Fotopoulos, Parliament and Morris then advanced towards him. [ 39 ] P. C. Morris observed Fotopoulos “push-kick” Mr. Reid in the back, forcing him to the ground. Mr. Reid’s hands were under his chest at that point. He continued to try to push himself off the ground and was resisting being handcuffed. He appeared angry, was asking why they had their guns pointed at him, and was stating that he hadn’t done anything. P.C. Fotopoulos then stepped on his neck.

Officers Morris and Parliament, who were kneeling on Mr. Reid’s back, finally managed to pull out his hands and get him handcuffed. P.C. Morris noticed at that time that the accused was bleeding. [ 40 ] P.C. Morris testified that in the circumstances, he did not see any other way of getting Mr. Reid to the ground other than by employing the push-kick to his back. He testified as to the importance of getting an accused person who is not compliant, who may be armed, and who is resisting being handcuffed, into a prone position. Testimony of P.C. Daley [ 41 ] P.C. Daley was the fourth officer to enter the building.

He testified that as he turned right to go down the hallway, Officers Fotopoulos, Parliament and Morris were past Unit 68 and running south down the hallway. P.C. Daley did not see the male they were pursuing; he only heard someone say, “He’s running.” Officers Daley and Hughes stayed outside Unit 68 and tied the door off so that it could not be opened. P.C. Daley consequently had his back to the officers dealing with Mr. Reid. However, he could hear them giving Mr. Reid various commands, including “Stop resisting” and “Give me your hands.” [ 42 ] P. C. Daley saw Mr. Reid as he was escorted out of the building.

He observed that Mr. Reid’s hair was messy and described it as looking as though he had “combed it with a firecracker”. [ 43 ] Following Mr. Reid’s arrest, the officers knocked on the door of Unit 68. Clayton MacFarlane came to the door and was arrested. The children he was babysitting were taken out. No one else was located in the apartment. [ 44 ] P. C. Daley testified that while Unit 68 was being cleared, he heard P.C. Fotopoulos, who was in close proximity to him, broadcast over the police radio that Mr. Reid had come out of Unit 68 and had tried to enter Unit 75.

That information resulted in the police obtaining the consent of the tenant at Unit 75, Tiffany Senior, to search and clear her residence. It was during his search of Unit 75 that P.C. Daley located in the basement a black canvas bag containing a loaded Sterling 9mm sub-machine gun and a loaded SigSauer 9mm semi-automatic handgun. Also in the bag was a tuft of hair. The DNA profile developed from that hair matched a DNA profile developed from the blood on Mr. Reid’s shirt. Testimony of Sgt. Peter Laufer [ 45 ] Sgt.

Laufer held the door open for the other officers and consequently was the last one to enter the building. He testified that as he entered, he saw Mr. Reid standing in front of the door of Unit 68. He could not tell whether Mr. Reid was entering or exiting the unit; he did not recall whether the apartment door was open or closed. [ 46 ] Sgt. Laufer testified that Mr. Reid matched the description of the suspect except for his hair. He was a black male wearing a white tank top or muscle shirt, and he was in the vicinity of Unit 68. His hair was not in corn rows but was very dishevelled and standing

up in different directions. One side appeared to be higher than the other. [ 47 ] Sgt. Laufer testified that the accused looked at him briefly, appeared surprised and then ran quickly down the hallway. Sgt. Laufer regarded his flight as a further indication that he was the suspect described by Sgt. Sanson. P.C. Fotopoulos ran after the accused, who tried to enter an apartment at the end of the hall. [ 48 ] Sgt. Laufer testified that his attention was focussed on covering Unit 68, as he did not want anyone exiting that apartment. He drew his pistol and pointed it at the door. He could hear Fotopoulos ordering Mr.

Reid to stop and giving him commands with respect to his hands. He also heard the sounds of a struggle. Moments later, Mr. Reid was arrested. [ 49 ] Sgt. Sanson testified that the ETF was in 1 Mount Olive Drive for less than a minute before the officers exited with Mr. Reid in custody. She noted that time as 8:14 p.m. Just prior to that, Sgt.

Sanson received information from another officer that a black male wearing a green shirt, dark coloured shorts, and dark socks but no shoes, had run from Unit 75 in a south east direction across Kipling Avenue. [ 50 ] Another individual by the name of Peter Broomfield was also seen leaving Unit 75 that evening. When stopped and questioned by an officer from 23 Division, Broomfield lied about having been in the apartment. Broomfield was ultimately charged with the same offences Mr. Reid is facing.

However, the charges against him were eventually withdrawn after he made a statutory declaration that he was not involved in and did not witness the shooting. Testimony of P.C. Adam Halagian [ 51 ] At 8:05 p.m., P.C. Halagian learned through P.C. Balaga that a uniformed officer was required inside 1 Mount Olive Drive. P.C. Halagian testified that when he entered the building, he observed ETF officers half or three-quarters of the way down the hall, somewhere in the vicinity of Units 71 to 75. Mr. Reid was on the floor. One officer was standing over him.

Another was kneeling beside him with an arm or leg over him, keeping him on the floor. Mr. Reid did not say anything and was not struggling. He had been handcuffed. [ 52 ] The ETF officers brought Mr. Reid to his feet and told P.C. Halagian to take custody of him. P.C. Halagian noted a two-inch cut to Mr. Reid’s chin. The wound was bleeding onto his white tank top. [ 53 ] P.C. Halagian denied searching Mr. Reid in the hallway and testified that he did not actually take custody of him until they were exiting the building. Once outside, Det.Cst. Locke approached and identified Mr. Reid as “Beefy.” Mr.

Reid said nothing in response. Officer Locke then instructed P.C. Halagian to arrest Mr. Reid for discharging a firearm. [ 54 ] P.C. Halagian’s understanding of the grounds for arrest included the location where Mr. Reid was found; that is, inside 1 Mount Olive Drive. Mr. Reid also matched the description of the suspect in that he was a black male of a similar age and was wearing a white tank top. P.C. Halagian was aware that the accused’s hair differed from the description of the suspect’s hair – it was not in corn rows. However, it appeared to P.C.

Halagian that braids or corn rows had been ripped or yanked out of the accused’s hair; some of the “curls” were still visible. [ 55 ] Prior to formally arresting Mr. Reid, P.C. Halagian escorted him twenty or thirty meters to where the paramedics were located. Mr. Reid was walking normally and did not say anything. P.C. Halagian was advised by the paramedics that Mr. Reid required stitches to close the cut to his chin. Mr. Reid also had two cracked molars. [ 56 ] P.C. Halagian testified that the accused identified himself as Renaldo Reid. In the presence of the paramedics, P.C.

Halagian advised him that he was under arrest for discharging a firearm. He also advised him of his rights to counsel and cautioned him. When P.C. Halagian asked him if he understood, Mr. Reid stated, “Yes, but I didn’t shoot nothing. I just came here from my grandma’s to get my hair done. I wanted corn rows.” P.C. Halagian then asked if he wanted to call a lawyer. Mr. Reid replied, “Yes.” [ 57 ] P.C. Halagian testified that Mr. Reid randomly repeated on two more occasions that he had just wanted to get his hair done. [ 58 ] While conducting a search incidental to the arrest, P.C.

Halagian located a pill bottle filled with a yellow rock-like substance in the accused’s left pant pocket. When P.C. Halagian asked Mr. Reid what it was, Mr. Reid stated, “Crack cocaine.” It was later confirmed that the bottle contained 18.47 grams of crack cocaine. P.C. Halagian also found a piece of tinfoil containing a white- coloured substance in the accused’s right pant pocket. When asked by the officer what it was, Mr. Reid replied, “Some more crack.” The cocaine in this package weighed 6.88 grams. [ 59 ] P.C. Halagian then arrested Mr. Reid for possession of cocaine for the purpose of trafficking.

He again read him his rights to counsel and cautioned him. Again, Mr. Reid indicated that he wanted to speak to a lawyer. [ 60 ] At 8:35 p.m., P.C. Halagian and the accused left the scene in an ambulance to go to the hospital, which took 5 or 10 minutes. On route, Mr. Reid repeated that he was coming from his grandmother’s to get his hair done. Once at the hospital, they waited for two- and-a-half hours for Mr. Reid to be seen by a doctor. [ 61 ] At 10:29 p.m., Detective Hicks attended at the hospital and tested Mr. Reid’s hands for gunshot residue. The test took a couple of minutes, during which time Mr.

Reid displayed no sign of being uncomfortable. He did not say anything. [ 62 ] P.C. Skolly, who was also at the hospital, testified that Mr. Reid stated several times while waiting to see the doctor that he had been in the area to see his grandmother and to get his hair braided. On at least one occasion, he stated that it was his cousin who was to braid his hair. [ 63 ] At 11:07 p.m., after receiving four stitches to his chin, Mr. Reid was transported to 23 Division by Officers Halagian and Skolly. They arrived there at 11:15 p.m.

[ 64 ] A strip search of the accused was conducted from 11:28 p.m. to 11:30 p.m. At 11:45 p.m., Detective Hicks took photographs of Mr. Reid and seized his clothing except for his socks and underwear. The accused was issued an orange jump suit. [ 65 ] At 11:55 p.m., Det. Elliot entered the interview room and, after advising Mr. Reid of his rights to counsel, questioned him about the shooting. The Crown has acknowledged that the resulting statement is inadmissible on the basis that the accused’s s.10(

b) Charter rights were infringed. Testimony of P.C. Locke [ 66 ] P. C. Locke was at 23 Division when he heard the police dispatcher report that multiple shots had been fired in the area of Mount Olive Drive and Kipling Avenue. P.C. Locke heard the same report heard by Sgt. Sanson at 6:34 p.m. – that is, that two males had run into the building closest to Kipling Avenue at Kipling and Mount Olive. The first suspect had a gun under a dark jacket. He had hair braided tightly to his head and was wearing a white tank top. The other suspect was wearing a maroon shirt. P.C.

Locke also heard the report at 6:49 p.m., which described a “male black, black jacket, sawed off shotgun in his shirt, white muscle shirt, corn rows.” [ 67 ] Other reports heard by P.C. Locke included the following: 7:27 p.m .: orig. comp. advises male is Andre… Street “Beefy”..light skin black… long mouth on him; 7:29 p.m .: Andre should be in his early 20’s. Just got out of jail. Lives in Brampton. Goes by “Denise”. 2 nd house in off parking lot. From 1 Mt. Olive. 7:32 p.m .: Andre aka Beefy apparently hangs around Denise at 1 Mount Olive. 2nd house in from the parking lot.

Comp. who adv. this wants to be anonymous. [ 68 ] P.C. Locke continued listening to the dispatcher reports until he left the station at 7:46 p.m. to attend the scene. While on route, he reviewed the text of all the reports up to that point. [ 69 ] P. C. Locke testified that the name “Beefy” was familiar to him. When the name was checked on a police data base, the accused’s name, Renaldo Reid, came up. P.C. Locke testified that he then realized he had encountered Mr. Reid in 2002, and that his partner at the time had advised him that Mr. Reid’s nickname was “Beefy.” Although Mr.

Reid did not live in the complex at Mount Olive and Kipling, he was known to hang around that area. [ 70 ] Further checks conducted by P.C. Locke at 23 Division indicated that Mr. Reid lived in Brampton and used the alias “Andre Reid.” His date of birth was March 28, 1986. He was the subject of two firearms prohibition orders – one in June 2004 and another in September 2005. P.C. Locke concluded that Mr. Reid had been convicted in the past of either firearms offences or offences involving violence. [ 71 ] P.C. Locke and Det. Elliot arrived on scene at 7:55 p.m. P.C.

Locke was standing outside 1 Mount Olive Drive as Mr. Reid was escorted out of the building in handcuffs. He testified that he immediately identified Mr. Reid as “Beefy” and said that name out loud to the accused. Mr. Reid did not react. P.C. Locke instructed P.C. Halagian to arrest Mr. Reid for discharging a firearm. He testified that he had reasonable grounds for the arrest based on all the information he had at that time, including the dispatcher reports and the following: Mr. Reid’s nickname was Beefy, which was the name used by the 911 callers. Mr.

Reid fit the description of the suspect in that he was wearing a white tank top. Mr. Reid’s hair was not in corn rows but was “all over the place”, which suggested to P.C. Locke that braids had recently been pulled out. Mr. Reid was apprehended by police in 1 Mount Olive Drive, where the suspect was reported to have fled. Mr. Reid was familiar with that building as he had a friend in the second unit to the right off the north entrance. The fact that Mr. Reid was the subject of two firearms prohibition orders suggested a criminal record for violence or firearms offences. Testimony of Renaldo Reid [ 72 ] Mr.

Reid testified on the voir dire . He agreed that his nickname is “Beefy” and that people also call him Andre. At the time of this incident, he was living with his mother and six siblings in Brampton. [ 73 ] Mr. Reid acknowledged his criminal record, which is as follows: 2000: (Youth Court): Uttering threats – 12 months probation; 2001: (Youth Court): Assault – 12 months probation; 2002: (Youth Court): Possession of a scheduled substance for the purpose of trafficking – 30 days secure custody;

2003: (Youth Court): Assault with intent to resist arrest (2 counts) – probation for 18 months; 2005: Possession of a prohibited or restricted firearm with ammunition and unauthorized possession of a prohibited or restricted weapon – one day in jail, plus 11 months of pre-trial custody, plus 7 months consecutive, as well as a prohibition order; 2007: Possession of cocaine for the purpose of trafficking and simple possession of cocaine – 1 day plus 324 days in pre-trial custody; and 2009: Obstruct police and escape lawful custody – sentence not yet imposed. [ 74 ] Mr.

Reid testified that on June 19, 2006, Clayton MacFarlane, whom he described as a close friend, drove him to the townhouse complex, where Mr. Reid visited his grandmother at 27 Mount Olive Drive. [ 75 ] Mr. Reid acknowledged having been served with a trespass notice that prohibited him from being in the complex unless he was accompanied by his mother or grandmother. The security guard was aware that Mr. Reid was banned from the area. [ 76 ] Mr. Reid acknowledged that on June 19, 2006, he was in possession of about 25 grams of crack cocaine, which he estimated was worth about $1200.

He testified that he planned to sell the drugs later on that day, either downtown or on what he referred to as the Jane strip. [ 77 ] Mr. Reid testified that he arrived at his grandmother’s place around 11:00 a.m. Two hours later, or around 1:00 p.m., he walked alone to the Albion Mall, where he purchased a 12-pack of Corona beer and a package of Captain Black cigarillos. He then returned to his grandmother’s apartment. [ 78 ] Mr.

Reid testified that around 4:00 p.m., he left his grandmother’s place to meet a friend at the “bottom” of the complex, an area that he described as between the buildings at 1 and 3 Mount Olive. He stated that having just gotten out of jail, he was eager to see this friend, whom he had not seen in awhile. Mr. Reid refused to name this individual, explaining that to do so would put the lives of Mr. Reid’s family members in jeopardy. [ 79 ] Mr. Reid also testified that he had arranged to meet Tiffany Senior that day, as she was supposed to braid his hair. No fixed time had been set.

Although Tiffany lived in Unit 75 at 1 Mount Olive, the hair braiding was supposed to take place at Unit 68, where Tiffany’s sister resided. He testified that Tiffany had braided his hair on two prior occasions. [ 80 ] Mr. Reid testified that while he was talking to his unnamed friend, his cousin called him on his cell phone and told him that he had “seen somebody in the mall.” His cousin warned him to “look out” and that “people are lurking around.” In cross-examination, Mr. Reid testified that his cousin called him before he met up with his friend.

He then stated that he could not recall when his cousin called, although he acknowledged that the call was important as it constituted, in his mind, a warning that someone might try to kill him. [ 81 ] Despite his cousin’s warning, Mr. Reid continued to stand outside with his friend. They eventually walked to the sidewalk and then west to 3 Mount Olive, where they stopped by a dumpster. There they met another male whose identity Mr. Reid also refused to disclose. Mr. Reid testified that the three of them planned to go drinking. [ 82 ] Mr.

Reid testified that at some point, a “kid” by the name of Derek went by and told them that “there’s a guy walking through with a gun.” Mr. Reid replied, “Okay”. It was shortly after that that the shooting took place. [ 83 ] When asked why the information from his cousin and Derek didn’t appear to concern him, Mr. Reid stated that “a lot of stuff happens around in that neighbourhood before. You get accustomed to it.” [ 84 ] Mr. Reid denied possessing or firing a gun that day.

He testified that as he and his friends were starting to head back to their earlier location, a man got out of a car in the school parking lot across the street and immediately began shooting at them. Mr. Reid and his friends dove behind the dumpster for cover. Mr. Reid testified that both of his friends were armed and began returning the fire from behind the dumpster. One was to Mr. Reid’s right and the other to his left. He could not recall what sort of guns they were using. Both men fired a lot of shots. [ 85 ] Mr. Reid testified that when it was over, his two friends ran off. Mr.

Reid ran through 3 Mount Olive because he “knows some kids that live in that building.” As it happens, he talked for “a bit” to one of these kids, whom he knew as Buzzum. He told Buzzum that “somebody rolled up. There’s a shooting.” He and Buzzum then walked to 1 Mount Olive and entered via the south side. They were in the building for “a little bit.” Mr. Reid testified, “Then the kid must have been like ‘the Task Force is coming in the building’. He went out and then the next thing I know, the Task Force is coming in.” [ 86 ] When asked how long Buzzum was with him in 1 Mount Olive, Mr.

Reid testified, “Part of the time. Then there was some, a girl named Natalie who used to live there and her sister was there with her boyfriend and they were talking in the hallway. I am smoking a cigarette.” Mr. Reid testified that Natalie’s apartment was either Unit 70 or 72. The boyfriend was in the hall, but Natalie’s sister was inside, sitting on the stairs and visible through the open door. They were talking as the ETF ran in. When the officers began shouting, “Don’t move!” they closed the door. [ 87 ] Mr.

Reid denied running from Unit 68 to Unit 75 as the officers entered, although he agreed that those are the two units in the

building to which he is most closely connected. His friend Clayton MacFarlane was in Unit 68 that day. Tiffany Senior’s mother lived in Unit 68. Tiffany lived in Unit 75. [ 88 ] Mr. Reid testified that he complied with all the officers’ demands and never yelled or swore at them. He froze, went to his knees and then lay down on the floor. He was in the vicinity of Units 72 or 74 at the time. The police approached him and, after he was handcuffed, an officer stepped on his head. Mr. Reid testified that his chin was on the floor and his teeth were clenched at the time.

Consequently, his chin “burst” and his molars were cracked. He later received four stitches to close the cut to his chin. According to Mr. Reid, he was never kicked in the back. [ 89 ] Mr. Reid testified that he never struggled with the officers or resisted being handcuffed; there would have been little point in doing so as the officers were very heavily armed. [ 90 ] According to Mr. Reid, P.C. Halagian searched him in the hallway of 1 Mount Olive while ETF officers were still present. When P.C. Halagian located the pill bottle containing crack cocaine, he asked Mr. Reid if he had any other drugs on him; Mr.

Reid lied and replied, “No.” Mr. Reid testified that P.C. Halagian performed only half a search and therefore failed to find the other drugs on him. Later on, when they were outside near the ambulance, Mr. Reid managed to remove some powder cocaine wrapped in foil in his pocket and threw or flicked it under the ambulance. However, P.C. Halagian saw it and picked it up. [ 91 ] Mr. Reid testified that Officer Hicks never asked his permission to perform the gunshot residue test, which involved obtaining tape-lift samples from his hands when he was at the hospital. Mr.

Reid testified that he did not want the testing done but agreed that it did not cause him any pain or discomfort. He testified that he was unaware that he was facing any charges other than the drug charges at the time of the GSR test. In fact, Mr. Reid testified that he was never told that night that he was under arrest for the discharge of a firearm. It was not until he was in court for a bail hearing the following day that he learned about the firearms offences. [ 92 ] According to Mr. Reid, his reason for going to 1 Mount Olive after the shooting was to have his hair braided by Tiffany.

There was no particular time set for this appointment; he was just to show up. He and Tiffany had discussed this matter the previous day when he was at the complex. [ 93 ] In cross-examination, Mr. Reid testified that the dumpster that he hid behind during the shootout was not located in the same position as it appears in photographs taken by crime scene officers that night. According to Mr. Reid, the dumpster had been “pulled out” from its original location. [ 94 ] Mr.

Reid had no explanation as to why the police found no casings in or around the dumpster, or why the casings for only one gun were found on the south side of Mount Olive. He denied the suggestion that only one gun was fired from that side of the street. [ 95 ] Mr. Reid testified that he spent about two hours with the first unnamed friend, and then another twenty minutes with the second individual before the shooting started. [ 96 ] When it was pointed out to Mr. Reid in cross-examination that he was not in possession of a cell phone at the time of his arrest, Mr.

Reid testified that the phone on which he allegedly received the call from his cousin “probably got put down.” He denied making up the entire story about his cousin having called him, and testified, “I could have gave [the phone] to one of these kids, I could have gave it to Buzzum.” He also testified that he wouldn’t have wanted anyone to see the telephone numbers in his phone. He agreed that based on his evidence, he had done nothing wrong and did not need to be concerned about being arrested when he walked into 1 Mount Olive. There was therefore no reason to get rid of the phone. However, Mr.

Reid then stated that he has personal issues with officers from 23 Division, who pick him up whenever they see him. Later on in his testimony, however, he stated that he was not particularly concerned about the police presence that day because the officers on scene were new and didn’t know him. According to Mr. Reid, the only officers he saw as he entered 1 Mount Olive were on the other side of a chain link fence, which they would have had to scale in order to get to his location. [ 97 ] Mr.

Reid claimed that a cigarette seen in a police photograph of the hallway at 1 Mount Olive was his and that he was smoking it when the ETF entered. If this were in fact the case, it would support Mr. Reid’s position that he was nowhere near Unit 68 when the ETF first encountered him. [ 98 ] Mr. Reid’s evidence regarding the cigarette was problematic. He agreed that he did not have a packet of cigarettes or any cigarettes on him when he was arrested. He explained that someone had given him the cigarette but he could not recall who. He testified that he lit the cigarette with a lighter as he left 3 Mount Olive.

When it was pointed out to Mr. Reid that he did not have a lighter with him when he was arrested, he stated that he didn’t know what happened to the lighter and that he probably gave it to someone, although he could not recall to whom. He then stated that he probably borrowed Buzzum’s lighter and gave it back to him. [ 99 ] In cross-examination, Mr. Reid agreed that he had not been on the friendliest terms with the people he alleges he was speaking to just prior to the ETF entering the building.

He testified that Natalie’s boyfriend and Clayton MacFarlane had gotten into a fight a few weeks earlier and that when he attempted to intervene, he ended up getting hit on the head with a bottle. According to Mr. Reid, despite this incident and the bad feelings it created, all the parties went back to being friends; hence, his stopping to chat with Natalie’s sister and her boyfriend in the hallway on June 19th. In his examination in chief, Mr.

Reid described the boyfriend as standing in the hallway, but in cross-examination stated that the boyfriend was at the door, with his body half in and half out of the apartment. [ 100 ] During cross-examination, Mr. Reid testified that Buzzum was in the hallway as the ETF entered and that Buzzam told him, “ETF is coming”. Buzzum then took off. Mr. Reid denied trying to flee the scene as well, despite the fact that he was in possession of a substantial amount of crack cocaine, had been present at the shooting and was trespassing at the time.

He stated that he did not run away because the officers had their guns pointed at him. [ 101 ] Mr. Reid denied letting his hands drop down towards his waist or that he was reaching for the crack cocaine in his pocket. However, he acknowledged that the crack was of enough concern to him that he tried to get rid of some of it surreptitiously after his arrest, while he was handcuffed and while P.C. Halagian was holding his arm. There were also other officers present when Mr. Reid

allegedly flicked the drug under the ambulance. [ 102 ] Mr. Reid attempted during his evidence to minimize his connection to Unit 75 by downplaying his relationship with the occupant of that apartment, Tiffany Senior. He denied that Tiffany was anything more than his hairdresser at the time or that he often visited her in her residence. However, he conceded that on June 1, 2006, just 19 days before this incident, he and Tiffany just happened to be in the same car when the car was involved in an accident.

He also agreed that he spoke to Tiffany outside 1 Mount Olive on June 18 and that his close friend, Clayton MacFarlane, is related to her family. Nevertheless, Mr. Reid maintained that prior to June 19, Tiffany was just someone he would see in the neighbourhood; he did not know her well. Mr. Reid testified that it was only after this incident that they became boyfriend/girlfriend. He acknowledged that Tiffany is now the mother of his 21-month old daughter. [ 103 ] According to the defence witness Tervil Brown ( “Buzzum”), Mr. Reid and Tiffany have been dating for five years. [ 104 ] Although Mr.

Reid maintained that P.C. Halagian only advised him that he was under arrest for the drug charges, he agreed that he told the officer, “Yes, but I didn’t shoot nothing.” According to Mr. Reid, he uttered these words in response to the officer’s query as to whether he was involved in the shooting, and not in response to the officer’s asking him if he understood his rights to counsel and the caution after his arrest for discharging a firearm. [ 105 ] Mr. Reid agreed that he told P.C. Halagian that he had just come from his grandmother’s to get his hair done.

However, he stated that this statement was in response to the officer’s question as to what he was doing in the area or where he was coming from. Mr. Reid denied telling the officer that he had wanted his hair done in corn rows, as opposed to being braided, but acknowledged that he does wear corn rows. [ 106 ] Mr. Reid agreed that he lied to P.C. Halagian when he told him he had just come from his grandmother’s place. He explained that he lied because he did not want the police to believe he had anything to do with the shooting.

Testimony of Tervil Brown or “Buzzum” [ 107 ] The defence witness, Tervil Brown, age 21, testified that on June 19, 2006, he happened to see Mr. Reid in the hallway at 3 Mount Olive. Mr. Brown knew nothing about the shooting at that time. He had not heard any shots fired. He testified that initially he and Mr. Reid chatted in the hall but then went into Mr. Brown’s apartment, where Mr. Brown lives with his mother and sister. They spoke for 5 or 10 minutes. When Mr. Reid told him he was going to get his hair done at 1 Mount Olive, Mr. Brown accompanied him there. Mr.

Brown did not observe anything unusual along the way; he did not notice any police officers or cruisers in the area. He and Mr. Reid entered 1 Mount Olive from the door on the south side. [ 108 ] Mr. Brown testified that he and Mr. Reid continued to talk in the foyer of 1 Mount Olive for a further five or ten minutes. Mr. Brown understood that Mr. Reid was going to Tiffany’s apartment to have his hair done. He described Mr. Reid’s hair as “out like an afro.” [ 109 ] Mr. Brown testified that after leaving 1 Mount Olive, he noticed a police cruiser drive by.

He then returned to the building and reported this observation to Mr. Reid, who was still standing in the foyer. According to Mr. Brown, Mr. Reid did not react other than to say “Okay.” Mr. Brown then returned home. He saw no other police in the area. About ten minutes later, however, he saw the SWAT team escorting Mr. Reid, who was in handcuffs, out the door on the north side of the building. [ 110 ] According to Mr. Brown, Mr. Reid at no time mentioned anything to him about a shooting or being shot at. [ 111 ] Mr. Brown testified that he specifically recalled that Mr.

Reid was smoking a cigarette at 1 Mount Olive and that he lit the cigarette with a lighter. [ 112 ] Mr. Brown never saw Mr. Reid speaking to anyone in the hallway of 1 Mount Olive. When he left, Mr. Reid was still in the foyer. Mr. Brown also testified that he never saw the police enter the building and that he never told the accused that the ETF were there. Factual Findings [ 113 ] In assessing the credibility of the accused and Tervil Brown, I have made allowance for the fact that they are unsophisticated witnesses testifying about events that took place over three-and-a-half years ago.

Unlike the police witnesses, they made no notes from which they could refresh their memories. Mr. Brown did not know until very recently that he would be called as a witness at this trial. In these circumstances, discrepancies in their evidence on minor matters is to be expected. [ 114 ] Counsel for the accused submitted that the court should also take into account Mr. Reid’s lifestyle and the milieu in which he lived in assessing his credibility. Mr.

Reid, as a self-admitted drug dealer, is part of a culture in which he dare not be viewed as a “rat.” For that reason, his refusal to identify the two friends whom he says fired guns that day does not necessarily reflect adversely on his credibility. [ 115 ] Defence counsel also asked the court to consider Mr. Reid’s lifestyle in assessing his reaction to the shooting. According to Mr. Brown, who spoke to Mr. Reid only moments after the shooting, Mr. Reid made no mention of someone having tried to kill him. Instead, Mr. Reid remained in the complex and decided to have his hair braided. [I note that Mr.

Reid testified that he did, in fact, tell Mr. Brown about the shooting]. Counsel for Mr. Reid pointed out that someone who is part of the drug culture may well have a more blasé attitude about the use of guns than those who are not part of that culture. [ 116 ] Even after due allowance is made for such matters, there are a number of aspects of Mr. Reid’s testimony that raise concerns regarding the credibility and reliability of his version of events. [ 117 ] According to Mr. Reid, he was positioned between his two friends behind the dumpster when the shooting began. Both friends

were armed and fired multiple shots. Yet the police located no shell casings in the area of the dumpster. The seven casings that were found were some distance from the dumpster and on the other side of a fence. [See exhibits 24-26 and 28]. All of the casings came from the same firearm – that is, the loaded submachine gun later located in Unit 75. [ 118 ] Contrary to the testimony of Mr. Reid, the evidence regarding the casings suggests there was only one shooter on the south side of the street. The evidence also indicates that the shooter was firing from a different location than that described by Mr.

Reid. [ 119 ] Mr. Reid’s suggestion that the dumpster was moved between the time of the shooting and the time when the police photographed the scene is highly improbable. The dumpster, which is at least six feet long and was full of garbage, could only have been moved by a truck. The police arrived within minutes of the shooting and had closed off all vehicular and pedestrian traffic along Mount Olive by 6:40 p.m. There is no evidence of a truck having come on scene to interfere with or change the position of the dumpster. [ 120 ] Mr.

Reid’s testimony that he continued to stand outside after he was warned by his cousin that he was in danger – that someone might try to kill him – does not make any sense. If Mr. Reid had, in fact, received such a call, common sense dictates that he would have sought cover or refuge somewhere indoors or have left the area altogether. [ 121 ] I also note that although Mr. Reid testified that he received his cousin’s call on a cell phone, he was not in possession of a cell phone at the time of his arrest. In cross-examination, Mr.

Reid stated that the phone “probably got put down” but provided no further details as to where he might have left it, other than to speculate that he could have given it to Buzzum. [ 122 ] As already stated, Mr. Reid’s claim that the cigarette, which is visible in the police photographs of the hallway at 1 Mount Olive, belonged to him and that he was smoking it when he was arrested, is problematic in a number of respects. At the time of his arrest, Mr. Reid was not in possession of any cigarettes or a lighter. He claimed that someone gave him the cigarette but could not recall who.

His evidence regarding the lighter he allegedly used to light the cigarette was equally vague. [ 123 ] Mr. Brown claimed to recall that Mr. Reid was smoking a cigarette at 1 Mount Olive on the day in question. However, I find it highly improbable and that Mr. Brown would or could remember such an inconsequential detail some three and a half years after the fact. [ 124 ] There is no question that there was a cigarette in the hallway of 1 Mount Olive when Mr. Reid was arrested. However, the evidence is such that I am not satisfied that Mr. Reid ever smoked it or that it is linked to him in any way.

The location of the cigarette is therefore of no assistance in terms of determining where Mr. Reid was standing in the hall when the ETF entered the building. [ 125 ] There were significant discrepancies between the evidence of Mr. Reid and Mr. Brown in terms of their locations when the ETF arrived. Mr. Reid testified that he was outside the door of Natalie’s unit, where he had stopped to chat with Natalie’s sister and her boyfriend. According to Mr. Reid, he was on friendly terms with the occupants of that unit, despite the fight a few weeks earlier between Natalie’s boyfriend and Mr.

MacFarlane, during which Mr. Reid was hit with a bottle. In any event, Mr. Reid testified that Mr. Brown, who was also present, warned him, “ETF is coming” and then took off. [ 126 ] According to Mr. Brown, he never saw Mr. Reid speaking to anyone at 1 Mount Olive. When Mr. Brown left the building for the second and last time, Mr. Reid was still in the foyer at the south entrance. Mr. Brown did not observe the ETF officers until ten minutes later, when they escorted Mr. Reid out of the building in handcuffs. If, as Mr. Reid described, Mr.

Brown saw the heavily armed ETF officers coming into 1 Mount Olive, warned Mr. Reid of their presence and then took flight, he would surely have remembered such an event. [ 127 ] Mr. Reid denied fleeing down the hall and attempting to gain entry to Unit 75. In assessing the credibility of his evidence in terms of his location in the hallway and what he did or did not do when he saw the officers, I take into account Mr. Reid’s attempts to minimize his connection to Unit 75. He denied that he frequented that address or that Tiffany Senior, who lived in that unit, was his girlfriend at the time. The evidence of Mr.

Brown indicates otherwise. Mr. Brown testified that Mr. Reid has dated Ms. Senior for about five years, or as long as he has known him. [ 128 ] Mr. Reid also had connections to Unit 68. His close friend, Clayton MacFarlane, was in that unit on the day of the incident. [ 129 ] In

summary, I reject Mr. Reid’s evidence as to his location in the hallway when the officers entered the building. I find that he was not talking to the occupants of Natalie’s apartment – Unit 70 or 72 – as he described. Nor was he smoking the cigarette shown in the crime scene photographs. [ 130 ] I accept the evidence of P.C. Fotopoulos that Mr. Reid was near or in the area of Unit 68 when he first saw him and that Mr. Reid took flight down the hall. Officers Morris and Parliament did not see Mr. Reid run away, most likely because they were behind Fotopoulos. I also note that it would not have taken Mr.

Reid, who is over six feet tall, much time to reach the area of Unit 75 – a distance of about eighty feet. By the time Officers Parliament and Morris observed him, he was already at or near the end of the hallway. Both Parliament and Morris testified that they heard P.C. Fotopoulos yell “Stop! Police!” – presumably because Mr. Reid had taken flight. P.C. Daley, who was focused on Unit 68, heard someone say, “He’s running!” [ 131 ] I recognize that there were a number of discrepancies in the officers’ descriptions of events in the hallway.

This, no doubt, was due in part to their different positions in the hall, the different roles they undertook, and the speed at which things happened. P.C. Fotopoulos estimated that there were only sixty to ninety seconds between the time that Mr. Reid ran down the hall to the point where he was forced to the floor and handcuffed. This time estimate is consistent with that of Sgt. Sanson, who testified that the ETF officers were only in the building for about a minute before they emerged with Mr. Reid in custody. [ 132 ] Mr. Reid testified that he complied with all of the officers’ commands.

However, I find that this was not the case. P.C. Parliament described Mr. Reid as running around or darting from side to side at the end of the hallway and yelling at the officers. P.C. Morris described Mr. Reid as “jumpy” and appearing to look for an avenue of escape. All three officers – Fotopoulos, Parliament, and

Morris – testified that even after Mr. Reid complied by walking backwards and going down on his knees, he refused to keep his hands inthe air and kept dropping them down to his waist or in front of his body. Mr. Reid denied doing this. However, I do not accept hisevidence in this regard. It must be remembered that Mr. Reid had a substantial amount of crack cocaine in his pant pocket which, on hisown admission, he was very anxious to get rid of given the circumstances. In fact, according to Mr. Reid, he later managed while inhandcuffs and in the custody of P.C.

Halagian to reach into his pocket, pull out the cocaine and flick it under the ambulance. [133] Mr. Reid testified that after he lay down on the floor pursuant to P.C. Fotopoulos’ instructions and was handcuffed, P.C.Fotopoulos, for no apparent reason, stepped on his head, thereby causing the injury to his chin. Again, I reject Mr. Reid’s version ofevents. I accept the evidence of Fotopoulos and Morris that P.C. Fotopoulos shoved or push-kicked Mr. Reid in the back while he waskneeling, causing Mr. Reid to go flat on his stomach. That is most likely when Mr.

Reid sustained the injury to his chin. [134] I accept the officers’ evidence that Mr. Reid resisted being handcuffed after he was down on the floor. P.C. Morris testifiedthat Mr. Reid’s hands were under his chest at that point and that he kept trying to push himself up. P.C. Fotopoulos testified to a similareffect. P.C. Parliament ended up on top of Mr. Reid and was pushing his chest into Mr. Reid’s back in an effort to get hold of his hand. P.C. Morris was struggling to take hold of Mr. Reid’s other hand. That was when P.C. Fotopoulos put his boot on Mr. Reid’s head. Theresult was that Mr.

Reid’s entire body was on the floor, which allowed the officers to gain control over him so that he could behandcuffed. Mr. Reid was still on the floor when P.C. Halagian arrived. The ETF officers then brought Mr. Reid to his feet andescorted him outside, where P.C. Halagian took custody of him. [135] I accept the evidence of P.C. Locke that he approached Mr. Reid and P.C. Halagian as they exited 1 Mount Olive, that headdressed Mr. Reid as “Beefy,” and that he then instructed P.C. Halagian to arrest Mr. Reid for discharging a firearm. I find that P.C.Halagian followed through with that instruction after Mr.

Reid had been attended to by the paramedics on scene. P.C. Halagian thenadvised Mr. Reid of his rights to counsel and cautioned him. Upon conducting a search pursuant to the arrest, P.C. Halagian discoveredthe crack cocaine on Mr. Reid’s person, at which point he advised him that he was also under arrest for possession of cocaine for thepurpose of trafficking. [136] Mr. Reid testified that he was only arrested for the drug charges that night and that he first learned of the firearms offenceswhen he was in court for a bail hearing the following day. I do not accept his evidence in this regard. His answer to P.C.

Halagian,when asked if he understood his rights to counsel and the caution, was clearly in response to having learned he was facing a charge ofdischarging a firearm as opposed to a drug offence. He told the officer, “Yes, but I didn’t shoot nothing. I just came here from mygrandma’s to get my hair done. I wanted corn rows.” Mr. Reid repeated on several occasions that night when speaking to PoliceConstables Halagian and Skolly that he was in the area to see his grandmother and to have his hair done. Whether there were reasonable grounds to arrest the accused [137]

Section 495 of the Criminal Code permits an officer to arrest without a warrant a person who, on reasonable grounds, hebelieves has committed or is about to commit an indictable offence. This

section requires that an arresting officer must subjectively havereasonable and probable grounds on which to base an arrest. Those grounds must also be justified from an objective point of view. Inother words, a reasonable person placed in the position of the officer must be able to conclude that there were, indeed, reasonable andprobable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12 at paras. 15-16. [138] On the other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically, they arenot required to establish a prima facie case for conviction before making the arrest. As stated in Dumbell v. Roberts, [1944] 1 All E.R.326 (C.A.) at 329, quoted in Storrey, supra, at para. 15: The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that theconstable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement isvery limited. The police are not called on before acting to have anything like a prima facie case for conviction. [139] In R. v.

Golub (1997), (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at para. 18, the court pointed out thatinformation that would not meet the reasonableness standard on an application for a search warrant may still meet that standard in thecontext of an arrest. The court stated: 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. The officer must makehis or her decision based on available information which is often less than exact or complete. The law does not expect the same kind ofinquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a searchwarrant. [emphasis added] [140] In effecting an arrest, there must be some relationship or logical association of the accused to the crime.

Otherwise, there wouldbe very little protection offered by the requirement that the police have reasonable and probable grounds before making an arrest. Asstated in R. v. Hall (1995), (ON CA), 22 O.R. (3d) 289, 79 O.A.C. 24 (C.A.), at para. 31: Both ‘articulable cause’ and ‘reasonable and probable grounds’, as related to an investigative detention and an arrest without warrantrespectively, are subject to an objective assessment.

That is to say there must be a constellation of objectively discernible factsamounting to articulable cause for a lawful investigative detention and a constellation of objectively discernible facts amounting toreasonable and probable grounds for a lawful arrest without warrant. [141] It is the “constellation of objectively discernible facts” that associates the person to be arrested to the crime. [142] The totality of the circumstances relied upon by the arresting officer will form the basis for the objective assessment. It wouldconstitute an error in law to assess each fact or observation in isolation.

An objective assessment will include the dynamics within whichthe police officer acted, as well as his or her experience. Because a trained officer is entitled to draw inferences and make deductions

drawing on experience, a reviewing court must take these factors into account: R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (QL) atpara. 4; R. v. Simpson (1993), (ON CA), 12 O.R. (3d) 182, 79 C.C.C. (3d) 482 (C.A.) at para. 55; R. v. Cunsolo,[2008] O.J. No. 3754 (Sup. Ct.) (QL) at para. 68 (6); R. v. Polashek (1999), (ON CA), 45 O.R. (3d) 434, [1999] O.J.No. 968 (C.A.) at paras. 13-14; and R. v.

Juan, 2007 BCCA 351, 222 C.C.C. (3d) 289 at para. 19. [143] The test for reasonableness does not require that the matter be viewed from the perspective of a reasonable lay person but rather,from the standpoint of the reasonable person “standing in the shoes of the police officer”: R. v. Tran, 2007 BCCA 491 at para. 12. Thereasonable person must be deemed to have the same level of experience as the police officer whose actions are being scrutinized;otherwise, the reasonable man would have no standard or guideline against which to measure the reasonableness of the officer’s belief:R. v.

Quillian (1991), (AB KB), 122 A.R. 131, [1991] A.J. No.1211 (Q.B.) at para. 72. [144] In terms of the subjective branch of the test, P.C. Fotopoulos testified that he believed he had reasonable grounds to arrest Mr.Reid based on the description of the suspect shooter and his observations of the accused in what he perceived to be a potentially volatilesituation. [145] The description of the suspect was admittedly vague – a black male wearing a white tank top and with corn rows in his hair. Mr. Reid is a black male and was wearing a white tank top.

He did not have corn rows in his hair, but his hair, according to P.C.Fotopoulos, appeared “altered.” Fotopoulos’ evidence in this regard was supported by the testimony of other officers who observed theaccused that night. Given the passage of time – the shooting occurred around 6:30 p.m. and Mr. Reid was not arrested until after 8:00p.m. – it was reasonable for P.C. Fotopoulos to discount the discrepancy between the suspect’s hairstyle and that of the accused. [146] In addition to fitting the general description of the suspect, Mr. Reid was in the same building to which the suspect hadreportedly fled.

The pool of potential suspects was limited in the sense that 1 Mount Olive contains only 13 townhouses; it was not ahigh rise building with hundreds of tenants. That pool was further narrowed by the fact that P.C. Fotopoulos observed Mr. Reid at ornear the door of the same unit the suspect had reportedly entered; that is, the second unit on the right, which is Unit 68. [147] Another factor P.C. Fotopoulos took into account was the fact that when Mr.

Reid saw the police, he took off down thehallway. [148] I am satisfied that the subjective branch of the test has been satisfied. [149] The objective branch of the test has also been met: there was a “constellation of objectively discernible facts” amounting toreasonable and probable grounds for the lawful arrest of Mr. Reid without a warrant. In coming to this conclusion, I have considered thetotality of the circumstances, including Mr. Reid’s proximity to Unit 68 in 1 Mount Olive, the fact that he was a black male wearing awhite tank top, and his flight down the hallway.

I have also taken into account the dynamics of the entire situation. [150] Counsel for Mr. Reid submitted that the significance of the accused’s presence at 1 Mount Olive is undermined by the fact thathe was not observed there until an hour and a half after the shooting, during which time the perimeter of the building had not beencompletely secured by police. There were admittedly gaps in the perimeter, most notably on the east side of the building, althoughOfficers Halagian and Skolly had a view of that side. Sgt.

Sanson posted officers on the north, south and west sides of the buildingshortly after her arrival at 6:35 p.m. She also detailed officers to guard the locations where the shooting occurred and shut down allvehicular and pedestrian traffic along Mount Olive. The police presence in the area was obvious; scout cars and uniformed officers from23 Division were on scene. By 7:15 p.m., members of the ETF had arrived, as well as Sgt. Venn from the canine unit. [151] The fact that the building was not entirely secured is certainly a matter for consideration.

However, taking into account thetotality of the circumstances, I am satisfied that a reasonable person, placed in the position of P.C. Fotopoulos, would be able to concludethat there were reasonable and probable grounds to arrest Mr. Reid. As stated in Storrey, supra, police need not have anything like aprima facie case for conviction before making an arrest. [152] The ETF officers promptly delivered Mr. Reid into the custody of P.C. Halagian, who was promptly instructed by OfficerLocke to arrest Mr. Reid for discharging a firearm.

Officer Locke had additional information on which he based his grounds for arrest,including the fact that the accused’s name was “Beefy” – the name attributed to the suspect by 911 callers. Officer Locke was alsoaware that Mr. Reid was the subject of two firearms prohibition orders, suggesting a criminal record for violent or firearms offences. Atthe time that P.C.

Halagian carried out Officer Locke’s instructions to execute the arrest, there were clearly reasonable and probablegrounds for the arrest from an objective point of view. [153] I am satisfied that the “constellation of objectively discernible facts” available to the ETF officers and to P.C. Locke, viewed inthe context of all of the circumstances amounted to reasonable and probable grounds for the arrest of Mr. Reid. The arrest was lawful, aswas the search conducted pursuant to the arrest. There was no violation of the accused’s s. 8 or 9 Charter rights.

Whether there was a violation of the accused’s s.7 Charter rights [154] I find that the force used by the ETF officers was not excessive and that Officer Fotopolous acted reasonably in thecircumstances. Those circumstances included the fact that Mr. Reid kept dropping his hands in front of his body, despite being orderedto keep them up or on his head where the officers could see them. This caused Officer Fotopolous to be concerned that Mr. Reid wasreaching for a weapon concealed in his waistband. In reality, Mr. Reid was probably reaching for the cocaine in his pocket, but theofficers had no way of knowing that.

What they did know was that there had been a shooting in the area – confirmed by the presence ofmultiple shell casings on the ground – and that an armed suspect had been seen fleeing into the same building in which they encounteredMr. Reid. The officers testified that hallways are a particularly problematic setting in these situations: there is no place to go if someonestarts shooting. In addition, innocent residents could walk into the hallway at any time and get caught in the cross-fire. This potentialdanger added further urgency to the situation in terms of gaining control over Mr.

Reid and executing the arrest. [155] After Mr. Reid went to his knees, he continued to drop his hands in front of him, despite P.C. Fotopolous’ commands to keep hishands up. He continued to yell at the officers. At that point, Officer Fotopolous decided to approach Mr. Reid “to get him under control

and to control the situation so that no one got hurt.” He consequently shoved or “push-kicked” Mr. Reid between his shoulder blades toget him down as fast as possible. The force applied caused Mr. Reid to go down on his stomach. His hands, according to OfficerMorris, were under his chest. As stated earlier, this is most likely when Mr. Reid sustained the cut to his chin and the two crackedmolars. Officer Morris, who saw P.C. Fotopoulos administer the push-kick, testified that given the circumstances, he did not see anyother way of getting Mr. Reid to the ground. Mr.

Reid was described as, and is in fact, a big man. [156] Once prone, Mr. Reid resisted being handcuffed and would not let the officers take his hands. P.C. Parliament, who describedMr. Reid as “fighting hard” not be handcuffed, was trying to take hold of his one hand while P.C. Morris struggled to take hold of theother. Mr. Reid was trying to get up or push himself off the ground. As a result, P.C. Fotopolous stepped on the back of Mr. Reid’shead – an action he took in order to keep Mr. Reid’s head, as well as the rest of his body, on the ground.

In the end, this maneuverenabled the other two officers to finally pull out Mr. Reid’s hands from under him and get him handcuffed. Officer Morris, whoobserved P.C. Fotopolous step on Mr. Reid’s neck, testified as to the importance of getting an accused person who is not compliant, whomay be armed, and who is resisting being handcuffed, into a prone position. [157] The force used by P.C. Fotopolous was not gratuitous or used for the purpose of causing bodily harm to Mr. Reid. The forcewas employed for the purpose of getting and keeping Mr.

Reid on the ground so that he could be handcuffed and prevented from usingany firearm or weapon he may potentially have had on his person. While considerable force was used, causing some pain or injury toMr. Reid, the situation was such that the police could not be expected to measure the force used with exactitude: see R. v. Mulligan, (ON CA), [2000] O.J. No. 59, 142 C.C.C. (3d) 13 (C.A.) at para. 41, citing R. v. Bottrell (1981), (BCCA), 60 C.C.C. (2d) 211, [1981] B.C.J. No. 855 (C.A.) at 218. [158] Given the potentially volatile circumstances as outlined above, as well as Mr.

Reid’s refusal to keep his hands where theofficers could see them and his resistance to being handcuffed, I conclude that the force used by the officers in executing the arrest wasnot excessive or abusive. There was no violation of Mr. Reid’s s. 7 Charter rights. Whether the test for gunshot residue and the seizure of the accused’s tank top violated the accused’s s. 8 Charter rights [159] Mr. Reid was arrested around 8:14 p.m. He was immediately escorted by P.C. Halagian to where the paramedics were locatedand examined by them. He was then told by P.C.

Halagian that he was under arrest for discharging a firearm, advised of his rights tocounsel and cautioned. A search incidental to the arrest led to the discovery of crack cocaine on Mr. Reid’s person. Mr. Reid was thenadvised that he was also under arrest for possession of cocaine for the purpose of trafficking. He was again told of his rights to counseland cautioned. Mr. Reid indicated that he wished to speak to counsel. [160] The paramedics advised P.C. Halagian that Mr. Reid required sutures to close the wound to his chin. Consequently, the officerescorted Mr.

Reid to the hospital, arriving there around 8:45 p.m. They waited two-and-a-half hours before Mr. Reid was seen by adoctor. In the meantime, at 10:29 p.m., and before Mr. Reid was given the opportunity to speak to his lawyer, Detective Hicks attendedat the hospital and tested Mr. Reid’s hands for gunshot residue. The test took a couple of minutes and involved taking tape-lifts from hishands. It did not cause Mr. Reid any pain or discomfort. [161] In R. v. Backhouse, (ON CA), [2005] O.J. No. 754 (C.A.), the Court held that a test for gunshot residue wasa search incident to arrest.

Rosenberg J.A., at paragraphs 141to143 of that decision, stated: I have already found that the arrest here was lawful. I am also of the view that the search was incident to the arrest. In R. v. Stillman atparas. 41 and 42, Cory J. approved of the following excerpt from R. v. Paul (1994), 96 C.C.C.(3d) 266 (N.B.C.A.), at p. 274, that: Searches made incidentally to an arrest are justified so that the arresting officer can be assured that the person arrested is not armed ordangerous and seizures are justified to preserve evidence that may go out of existence or be otherwise lost.

As neither circumstanceexisted here, the Crown cannot rely on a power that is incidental to an arrest to justify seizure of the hair samples …. In my opinion, thepower to search and seize does not extend beyond those purposes. [Emphasis added.] The hand washing was necessary to preserve evidence. It had to be conducted within a few hours of the handling of the firearm or theevidence would have been lost. However, the fact that a seizure may be necessary to preserve evidence does not determine the questionof whether the search is a valid exercise of the search incident to arrest power.

There are limits to the power. In Stillman, at para. 49,Cory J. held that the search incident to arrest power cannot include the power to seize bodily subs

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