[REDACTED]


Ontario Superior Court of Justice
[REDACTED].

[REDACTED].

Counsel:
[REDACTED], for the Crown.
[REDACTED], for the Accused.


REASONS ON CHARTER APPLICATION

  1. Judge: [REDACTED].:— The accused, [REDACTED], 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. [REDACTED] 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. [REDACTED] 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. [REDACTED]'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. [REDACTED]'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. [REDACTED] 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.
  6. Evidence

  7. On June 19, 2006, at 6:30 p.m., Sgt. [REDACTED] learned through the police dispatcher that gunshots had been heard in the area of Mount Olive Drive and Kipling Avenue in Etobicoke. Sgt. [REDACTED] 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.
  8. At 6:34 p.m., Sgt. [REDACTED] 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.
  9. Sgt. [REDACTED] 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.
  10. When Sgt. [REDACTED] 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.
  11. 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. [REDACTED] 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.
  12. Sgt. [REDACTED] testified that a Metropolitan Housing Security Guard by the name of "[REDACTED]" approached her and began to pass on information he was receiving from people calling him on his cell phone. [REDACTED] 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. [REDACTED] did not know the number at the time. The description provided by [REDACTED] was similar to the description of the suspect broadcast over the police radio at 6:34 p.m.
  13. [REDACTED] also advised Sgt. [REDACTED] that "the mom lives in Unit 75." Sgt. [REDACTED] 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.
  14. At 6:40 p.m., after learning the location of one of the shooters and that he may still be armed, Sgt. [REDACTED] asked that the Emergency Task Force attend.
  15. 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.
  16. In terms of securing 1 Mount Olive Drive, Sgt. [REDACTED] testified that she only had enough officers to cover the north, south and west sides of the building. Officers [REDACTED] and [REDACTED], 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.
  17. Officers [REDACTED] and [REDACTED] took up their posts at Mount Olive and Kipling at 6:40 p.m. Officer [REDACTED] remained there until 8:05 p.m. [REDACTED] remained until 8:25 p.m. Throughout that time, the police presence in the area was obvious. [REDACTED] 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.
  18. Sgt. [REDACTED] was in charge of the ETF team, which included Officers [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED] and Lawrence. Sgt. [REDACTED] conducted a briefing in which she advised Sgt. [REDACTED] 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. [REDACTED], made notes at the time; rather, they made their notes at the end of the day and after completing other calls. [REDACTED] did not make his notes until the following day. In making their notes, the officers relied on Sgt. [REDACTED]'s notes for the times at which various events took place.
  19. 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 [REDACTED]. [REDACTED], 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 [REDACTED], which lasted about two minutes.
  20. At 7:44 p.m., Sgt. [REDACTED] reported his encounter with [REDACTED] to Sgt. [REDACTED], who asked him whether the officers had actually entered the apartment and whether [REDACTED] appeared nervous. Sgt. [REDACTED] advised that they had not gone into the residence and that [REDACTED] had appeared very nervous. A CPIC check disclosed an outstanding warrant for [REDACTED]'s arrest on a drug trafficking charge. Sgt. [REDACTED] asked Sgt. [REDACTED] and his team to assist in the arrest of [REDACTED].
  21. At 8:10 p.m., the ETF officers entered 1 Mount Olive Drive again, this time through the north entrance. Sgt. [REDACTED] held the door open and the team, led by [REDACTED], 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.
  22. Testimony of [REDACTED]

  23. [REDACTED] testified that as he turned to his right, he saw a male, later identified as Mr. [REDACTED], at the doorway of Unit 68. The male matched the description of the suspect provided by Sgt. [REDACTED]; 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 [REDACTED]' belief that he was the suspect involved in the shooting.
  24. [REDACTED] recalled that Sgt. [REDACTED]'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. [REDACTED]. It would seem that following these events, [REDACTED] 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.
  25. [REDACTED] testified that Mr. [REDACTED] 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. [REDACTED] yelled "Stop" but Mr. [REDACTED] continued running until he reached the door of a unit further down the hall, later confirmed by [REDACTED] to be Unit 75. The distance between Units 68 and 75 is about 84 feet. [REDACTED] testified that Mr. [REDACTED] 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?"
  26. [REDACTED] ordered Mr. [REDACTED] to turn his back to the officers and walk backwards towards them. [REDACTED] 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.
  27. [REDACTED] ordered the accused to keep his hands on his head. However, Mr. [REDACTED] kept dropping his hands in front of his body. [REDACTED] 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. [REDACTED] 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. [REDACTED] was taking place in a hallway, which [REDACTED] 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.
  28. [REDACTED] testified that when Mr. [REDACTED] 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, [REDACTED] decided to approach Mr. [REDACTED] "to get him under control and to control the situation so that no one got hurt".
  29. [REDACTED] 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. [REDACTED] 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. [REDACTED] to fall flat down onto his stomach. When asked to describe the force used on the accused, [REDACTED] testified, "A lot of force. He is a big man so it took a lot of force to get him down to the ground."
  30. Officers [REDACTED] and [REDACTED] rushed in and attempted to handcuff Mr. [REDACTED]. However, Mr. [REDACTED] struggled, resisted giving his hands to the officers, and was trying to get back on his feet. [REDACTED] was telling him to stop resisting, stop fighting and to give up his hands. [REDACTED] testified that at that point he decided his "only option was to step on the back of [Mr. [REDACTED]'s] head to control him". By putting his foot on his head, [REDACTED] was able to keep Mr. [REDACTED]'s head, as well as the rest of his body, on the floor. This enabled [REDACTED] and [REDACTED] to take hold of the accused's hands and handcuff him. Mr. [REDACTED] was then picked up and escorted out of the building. [REDACTED] noted that Mr. [REDACTED] 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.
  31. [REDACTED] testified that he remained somewhere in the vicinity of Units 65 to 68 prior to approaching Mr. [REDACTED] and while ordering him to walk backward towards him. The rest of the team was behind [REDACTED]. Everything happened very quickly. [REDACTED] estimated that there was only a minute or a minute-and-a-half between the time that Mr. [REDACTED] took off down the hall and the time that he approached the accused and pushed him to the floor.
  32. [REDACTED] 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."
  33. Testimony of [REDACTED]

  34. [REDACTED] 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 [REDACTED], who was to be arrested, was located. However, as he entered, he heard [REDACTED] yelling "Stop! Police!" and saw Mr. [REDACTED] at the end of the hall in the area of Unit 75. Mr. [REDACTED] 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. [REDACTED] testified that [REDACTED] was telling the accused to keep his hands in the air and to keep showing his hands. Mr. [REDACTED] kept dropping his hands down to his waist area. [REDACTED] called the accused back towards the team and then got him to go down on his knees to effect the arrest. [REDACTED] 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".
  35. [REDACTED] testified that [REDACTED] was yelling commands at Mr. [REDACTED] for what seemed to be a long time but in reality was probably only a minute or two.
  36. [REDACTED] testified that when he first saw Mr. [REDACTED], 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. [REDACTED] 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. [REDACTED] estimated that Mr. [REDACTED] walked backwards for a distance of about 10 or 15 feet.
  37. [REDACTED] testified that when Mr. [REDACTED] 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. [REDACTED] 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. [REDACTED]'s hands were off to the side and "heading towards his stomach" as the officers approached. Mr. [REDACTED] was also looking around, trying to see where the officers were in relation to him.
  38. [REDACTED] testified that he did not actually see [REDACTED] force Mr. [REDACTED] 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, [REDACTED] was able to assist in handcuffing the accused. He testified that at one point he was on top of Mr. [REDACTED], pushing his chest into Mr. [REDACTED]'s back and putting all his weight on him in an effort to get hold of Mr [REDACTED]'s hand. Mr. [REDACTED] was trying to get up. [REDACTED] was struggling to take hold of the accused's other hand.
  39. [REDACTED] did not see [REDACTED] step on Mr. [REDACTED]'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 [REDACTED], Mr. [REDACTED] was fighting hard not to be handcuffed.
  40. Testimony of [REDACTED]

  41. [REDACTED] testified that when the ETF entered 1 Mount Olive Drive the second time, there was still concern that the suspect was in the building. [REDACTED]' 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 [REDACTED] and [REDACTED] were standing, which was close to Unit 68. [REDACTED] and [REDACTED] were in front of him and partially obstructing his view. He heard [REDACTED] yell "Stop!" and saw the accused in the area of Units 75, 76 or 77, or somewhere near the end of the hallway. [REDACTED] was ordering Mr. [REDACTED] to turn around, put his hands in the air, and to walk backward towards the officers. Mr. [REDACTED] appeared to be looking for an avenue of escape and was "jumpy." He was not following [REDACTED]' 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 [REDACTED] to have concern that he had a firearm. [REDACTED] also had safely concerns with respect to Unit 68.
  42. [REDACTED] recalled [REDACTED] ordering Mr. [REDACTED] to lie down on the ground. I note that [REDACTED] made no mention in his testimony of giving this order. In any event, [REDACTED] testified that after the accused was on his knees, he continued to drop his hands. Officers [REDACTED], [REDACTED] and [REDACTED] then advanced towards him.
  43. [REDACTED] observed [REDACTED] "push-kick" Mr. [REDACTED] in the back, forcing him to the ground. Mr. [REDACTED]'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. [REDACTED] then stepped on his neck. Officers [REDACTED] and [REDACTED], who were kneeling on Mr. [REDACTED]'s back, finally managed to pull out his hands and get him handcuffed. [REDACTED] noticed at that time that the accused was bleeding.
  44. [REDACTED] testified that in the circumstances, he did not see any other way of getting Mr. [REDACTED] 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.
  45. Testimony of [REDACTED]

  46. [REDACTED] was the fourth officer to enter the building. He testified that as he turned right to go down the hallway, Officers [REDACTED], [REDACTED] and [REDACTED] were past Unit 68 and running south down the hallway. [REDACTED] did not see the male they were pursuing; he only heard someone say, "He's running." Officers [REDACTED] and [REDACTED] stayed outside Unit 68 and tied the door off so that it could not be opened. [REDACTED] consequently had his back to the officers dealing with Mr. [REDACTED]. However, he could hear them giving Mr. [REDACTED] various commands, including "Stop resisting" and "Give me your hands."
  47. [REDACTED] saw Mr. [REDACTED] as he was escorted out of the building. He observed that Mr. [REDACTED]'s hair was messy and described it as looking as though he had "combed it with a firecracker".
  48. Following Mr. [REDACTED]'s arrest, the officers knocked on the door of Unit 68. [REDACTED] came to the door and was arrested. The children he was babysitting were taken out. No one else was located in the apartment.
  49. [REDACTED] testified that while Unit 68 was being cleared, he heard [REDACTED], who was in close proximity to him, broadcast over the police radio that Mr. [REDACTED] 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, [REDACTED], to search and clear her residence. It was during his search of Unit 75 that [REDACTED] 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. [REDACTED]'s shirt.
  50. Testimony of Sgt. Peter [REDACTED]

  51. Sgt. [REDACTED] 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. [REDACTED] standing in front of the door of Unit 68. He could not tell whether Mr. [REDACTED] was entering or exiting the unit; he did not recall whether the apartment door was open or closed.
  52. Sgt. [REDACTED] testified that Mr. [REDACTED] 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.
  53. Sgt. [REDACTED] testified that the accused looked at him briefly, appeared surprised and then ran quickly down the hallway. Sgt. [REDACTED] regarded his flight as a further indication that he was the suspect described by Sgt. [REDACTED]. [REDACTED] ran after the accused, who tried to enter an apartment at the end of the hall.
  54. Sgt. [REDACTED] 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 [REDACTED] ordering Mr. [REDACTED] to stop and giving him commands with respect to his hands. He also heard the sounds of a struggle. Moments later, Mr. [REDACTED] was arrested.
  55. Sgt. [REDACTED] testified that the ETF was in 1 Mount Olive Drive for less than a minute before the officers exited with Mr. [REDACTED] in custody. She noted that time as 8:14 p.m. Just prior to that, Sgt. [REDACTED] 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.
  56. 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. [REDACTED] 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.
  57. Testimony of [REDACTED]

  58. At 8:05 p.m., [REDACTED] learned through P.C. Balaga that a uniformed officer was required inside 1 Mount Olive Drive. [REDACTED] 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. [REDACTED] 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. [REDACTED] did not say anything and was not struggling. He had been handcuffed.
  59. The ETF officers brought Mr. [REDACTED] to his feet and told [REDACTED] to take custody of him. [REDACTED] noted a two-inch cut to Mr. [REDACTED]'s chin. The wound was bleeding onto his white tank top.
  60. [REDACTED] denied searching Mr. [REDACTED] in the hallway and testified that he did not actually take custody of him until they were exiting the building. Once outside, Det.Cst. [REDACTED] approached and identified Mr. [REDACTED] as "[REDACTED]." Mr. [REDACTED] said nothing in response. Officer [REDACTED] then instructed [REDACTED] to arrest Mr. [REDACTED] for discharging a firearm.
  61. [REDACTED]'s understanding of the grounds for arrest included the location where Mr. [REDACTED] was found; that is, inside 1 Mount Olive Drive. Mr. [REDACTED] 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. [REDACTED] 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 [REDACTED] that braids or corn rows had been ripped or yanked out of the accused's hair; some of the "curls" were still visible.
  62. Prior to formally arresting Mr. [REDACTED], [REDACTED] escorted him twenty or thirty meters to where the paramedics were located. Mr. [REDACTED] was walking normally and did not say anything. [REDACTED] was advised by the paramedics that Mr. [REDACTED] required stitches to close the cut to his chin. Mr. [REDACTED] also had two cracked molars.
  63. [REDACTED] testified that the accused identified himself as [REDACTED]. In the presence of the paramedics, [REDACTED] advised him that he was under arrest for discharging a firearm. He also advised him of his rights to counsel and cautioned him. When [REDACTED] asked him if he understood, Mr. [REDACTED] 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." [REDACTED] then asked if he wanted to call a lawyer. Mr. [REDACTED] replied, "Yes."
  64. [REDACTED] testified that Mr. [REDACTED] randomly repeated on two more occasions that he had just wanted to get his hair done.
  65. While conducting a search incidental to the arrest, [REDACTED] located a pill bottle filled with a yellow rock-like substance in the accused's left pant pocket. When [REDACTED] asked Mr. [REDACTED] what it was, Mr. [REDACTED] stated, "Crack cocaine." It was later confirmed that the bottle contained 18.47 grams of crack cocaine. [REDACTED] 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. [REDACTED] replied, "Some more crack." The cocaine in this package weighed 6.88 grams.
  66. [REDACTED] then arrested Mr. [REDACTED] for possession of cocaine for the purpose of trafficking. He again read him his rights to counsel and cautioned him. Again, Mr. [REDACTED] indicated that he wanted to speak to a lawyer.
  67. At 8:35 p.m., [REDACTED] and the accused left the scene in an ambulance to go to the hospital, which took 5 or 10 minutes. On route, Mr. [REDACTED] 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. [REDACTED] to be seen by a doctor.
  68. At 10:29 p.m., Detective [REDACTED] attended at the hospital and tested Mr. [REDACTED]'s hands for gunshot residue. The test took a couple of minutes, during which time Mr. [REDACTED] displayed no sign of being uncomfortable. He did not say anything.
  69. [REDACTED], who was also at the hospital, testified that Mr. [REDACTED] 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.
  70. At 11:07 p.m., after receiving four stitches to his chin, Mr. [REDACTED] was transported to 23 Division by Officers [REDACTED] and [REDACTED]. They arrived there at 11:15 p.m.
  71. A strip search of the accused was conducted from 11:28 p.m. to 11:30 p.m. At 11:45 p.m., Detective [REDACTED] took photographs of Mr. [REDACTED] and seized his clothing except for his socks and underwear. The accused was issued an orange jump suit.
  72. At 11:55 p.m., Det. [REDACTED] entered the interview room and, after advising Mr. [REDACTED] 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.
  73. Testimony of [REDACTED]

  74. [REDACTED] 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. [REDACTED] heard the same report heard by Sgt. [REDACTED] 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. [REDACTED] 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."
  75. Other reports heard by [REDACTED] included the following:
    • 7:27 p.m.: orig. comp. advises male is [REDACTED] ... Street "[REDACTED]"... light skin black ... long mouth on him;
    • 7:29 p.m.: [REDACTED] should be in his early 20's. Just got out of jail. Lives in Brampton. Goes by "Denise". 2nd house in off parking lot. From 1 Mt. Olive.
    • 7:32 p.m.: [REDACTED] aka [REDACTED] apparently hangs around Denise at 1 Mount Olive. 2nd house in from the parking lot. Comp. who adv. this wants to be anonymous.
  76. [REDACTED] 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.
  77. [REDACTED] testified that the name "[REDACTED]" was familiar to him. When the name was checked on a police data base, the accused's name, [REDACTED], came up. [REDACTED] testified that he then realized he had encountered Mr. [REDACTED] in 2002, and that his partner at the time had advised him that Mr. [REDACTED]'s nickname was "[REDACTED]." Although Mr. [REDACTED] did not live in the complex at Mount Olive and Kipling, he was known to hang around that area.
  78. Further checks conducted by [REDACTED] at 23 Division indicated that Mr. [REDACTED] lived in Brampton and used the alias "[REDACTED]." 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. [REDACTED] concluded that Mr. [REDACTED] had been convicted in the past of either firearms offences or offences involving violence.
  79. [REDACTED] and Det. [REDACTED] arrived on scene at 7:55 p.m. [REDACTED] was standing outside 1 Mount Olive Drive as Mr. [REDACTED] was escorted out of the building in handcuffs. He testified that he immediately identified Mr. [REDACTED] as "[REDACTED]" and said that name out loud to the accused. Mr. [REDACTED] did not react. [REDACTED] instructed [REDACTED] to arrest Mr. [REDACTED] 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. [REDACTED]'s nickname was [REDACTED], which was the name used by the 911 callers.
    • Mr. [REDACTED] fit the description of the suspect in that he was wearing a white tank top.
    • Mr. [REDACTED]'s hair was not in corn rows but was "all over the place", which suggested to [REDACTED] that braids had recently been pulled out.
    • Mr. [REDACTED] was apprehended by police in 1 Mount Olive Drive, where the suspect was reported to have fled. Mr. [REDACTED] 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. [REDACTED] was the subject of two firearms prohibition orders suggested a criminal record for violence or firearms offences.
  80. Testimony of [REDACTED]

  81. Mr. [REDACTED] testified on the voir dire. He agreed that his nickname is "[REDACTED]" and that people also call him [REDACTED]. At the time of this incident, he was living with his mother and six siblings in Brampton.
  82. Mr. [REDACTED] 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.
  83. Mr. [REDACTED] testified that on June 19, 2006, [REDACTED], whom he described as a close friend, drove him to the townhouse complex, where Mr. [REDACTED] visited his grandmother at 27 Mount Olive Drive.
  84. Mr. [REDACTED] 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. [REDACTED] was banned from the area.
  85. Mr. [REDACTED] 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.
  86. Mr. [REDACTED] 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.
  87. Mr. [REDACTED] 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. [REDACTED] refused to name this individual, explaining that to do so would put the lives of Mr. [REDACTED]'s family members in jeopardy.
  88. Mr. [REDACTED] also testified that he had arranged to meet [REDACTED] that day, as she was supposed to braid his hair. No fixed time had been set. Although [REDACTED] lived in Unit 75 at 1 Mount Olive, the hair braiding was supposed to take place at Unit 68, where [REDACTED]'s sister resided. He testified that [REDACTED] had braided his hair on two prior occasions.
  89. Mr. [REDACTED] 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. [REDACTED] 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.
  90. Despite his cousin's warning, Mr. [REDACTED] 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. [REDACTED] also refused to disclose. Mr. [REDACTED] testified that the three of them planned to go drinking.
  91. Mr. [REDACTED] testified that at some point, a "kid" by the name of [REDACTED] went by and told them that "there's a guy walking through with a gun." Mr. [REDACTED] replied, "Okay". It was shortly after that that the shooting took place.
  92. When asked why the information from his cousin and [REDACTED] didn't appear to concern him, Mr. [REDACTED] stated that "a lot of stuff happens around in that neighbourhood before. You get accustomed to it."
  93. Mr. [REDACTED] 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. [REDACTED] and his friends dove behind the dumpster for cover. Mr. [REDACTED] testified that both of his friends were armed and began returning the fire from behind the dumpster. One was to Mr. [REDACTED]'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.
  94. Mr. [REDACTED] testified that when it was over, his two friends ran off. Mr. [REDACTED] 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 [REDACTED]. He told [REDACTED] that "somebody rolled up. There's a shooting." He and [REDACTED] then walked to 1 Mount Olive and entered via the south side. They were in the building for "a little bit." Mr. [REDACTED] 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."
  95. When asked how long [REDACTED] was with him in 1 Mount Olive, Mr. [REDACTED] testified, "Part of the time. Then there was some, a girl named [REDACTED] 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. [REDACTED] testified that [REDACTED]'s apartment was either Unit 70 or 72. The boyfriend was in the hall, but [REDACTED]'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.
  96. Mr. [REDACTED] 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 [REDACTED] was in Unit 68 that day. [REDACTED]'s mother lived in Unit 68. [REDACTED] lived in Unit 75.
  97. Mr. [REDACTED] 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. [REDACTED] 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. [REDACTED], he was never kicked in the back.
  98. Mr. [REDACTED] 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.
  99. According to Mr. [REDACTED], [REDACTED] searched him in the hallway of 1 Mount Olive while ETF officers were still present. When [REDACTED] located the pill bottle containing crack cocaine, he asked Mr. [REDACTED] if he had any other drugs on him; Mr. [REDACTED] lied and replied, "No." Mr. [REDACTED] testified that [REDACTED] 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. [REDACTED] managed to remove some powder cocaine wrapped in foil in his pocket and threw or flicked it under the ambulance. However, [REDACTED] saw it and picked it up.
  100. Mr. [REDACTED] testified that Officer [REDACTED] 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. [REDACTED] 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. [REDACTED] 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.
  101. According to Mr. [REDACTED], his reason for going to 1 Mount Olive after the shooting was to have his hair braided by [REDACTED]. There was no particular time set for this appointment; he was just to show up. He and [REDACTED] had discussed this matter the previous day when he was at the complex.
  102. In cross-examination, Mr. [REDACTED] 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. [REDACTED], the dumpster had been "pulled out" from its original location.
  103. Mr. [REDACTED] 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.
  104. Mr. [REDACTED] 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.
  105. When it was pointed out to Mr. [REDACTED] in cross-examination that he was not in possession of a cell phone at the time of his arrest, Mr. [REDACTED] 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 [REDACTED]." 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. [REDACTED] 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. [REDACTED], 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.
  106. Mr. [REDACTED] 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. [REDACTED]'s position that he was nowhere near Unit 68 when the ETF first encountered him.
  107. Mr. [REDACTED]'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. [REDACTED] 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 [REDACTED]'s lighter and gave it back to him.
  108. In cross-examination, Mr. [REDACTED] 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 [REDACTED]'s boyfriend and [REDACTED] 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. [REDACTED], despite this incident and the bad feelings it created, all the parties went back to being friends; hence, his stopping to chat with [REDACTED]'s sister and her boyfriend in the hallway on June 19th. In his examination in chief, Mr. [REDACTED] 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.
  109. During cross-examination, Mr. [REDACTED] testified that [REDACTED] was in the hallway as the ETF entered and that [REDACTED] told him, "ETF is coming". [REDACTED] then took off. Mr. [REDACTED] 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.
  110. Mr. [REDACTED] 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 [REDACTED] was holding his arm. There were also other officers present when Mr. [REDACTED] allegedly flicked the drug under the ambulance.
  111. Mr. [REDACTED] attempted during his evidence to minimize his connection to Unit 75 by downplaying his relationship with the occupant of that apartment, [REDACTED]. He denied that [REDACTED] 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 [REDACTED] just happened to be in the same car when the car was involved in an accident. He also agreed that he spoke to [REDACTED] outside 1 Mount Olive on June 18 and that his close friend, [REDACTED], is related to her family. Nevertheless, Mr. [REDACTED] maintained that prior to June 19, [REDACTED] was just someone he would see in the neighbourhood; he did not know her well. Mr. [REDACTED] testified that it was only after this incident that they became boyfriend/girlfriend. He acknowledged that [REDACTED] is now the mother of his 21-month old daughter.
  112. According to the defence witness [REDACTED] [REDACTED] ( "[REDACTED]"), Mr. [REDACTED] and [REDACTED] have been dating for five years.
  113. Although Mr. [REDACTED] maintained that [REDACTED] 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. [REDACTED], 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.
  114. Mr. [REDACTED] agreed that he told [REDACTED] 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. [REDACTED] 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.
  115. Mr. [REDACTED] agreed that he lied to [REDACTED] 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.
  116. Testimony of [REDACTED] [REDACTED] or "[REDACTED]"

  117. The defence witness, [REDACTED] [REDACTED], age 21, testified that on June 19, 2006, he happened to see Mr. [REDACTED] in the hallway at 3 Mount Olive. Mr. [REDACTED] knew nothing about the shooting at that time. He had not heard any shots fired. He testified that initially he and Mr. [REDACTED] chatted in the hall but then went into Mr. [REDACTED]'s apartment, where Mr. [REDACTED] lives with his mother and sister. They spoke for 5 or 10 minutes. When Mr. [REDACTED] told him he was going to get his hair done at 1 Mount Olive, Mr. [REDACTED] accompanied him there. Mr. [REDACTED] did not observe anything unusual along the way; he did not notice any police officers or cruisers in the area. He and Mr. [REDACTED] entered 1 Mount Olive from the door on the south side.
  118. Mr. [REDACTED] testified that he and Mr. [REDACTED] continued to talk in the foyer of 1 Mount Olive for a further five or ten minutes. Mr. [REDACTED] understood that Mr. [REDACTED] was going to [REDACTED]'s apartment to have his hair done. He described Mr. [REDACTED]'s hair as "out like an afro."
  119. Mr. [REDACTED] 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. [REDACTED], who was still standing in the foyer. According to Mr. [REDACTED], Mr. [REDACTED] did not react other than to say "Okay." Mr. [REDACTED] then returned home. He saw no other police in the area. About ten minutes later, however, he saw the SWAT team escorting Mr. [REDACTED], who was in handcuffs, out the door on the north side of the building.
  120. According to Mr. [REDACTED], Mr. [REDACTED] at no time mentioned anything to him about a shooting or being shot at.
  121. Mr. [REDACTED] testified that he specifically recalled that Mr. [REDACTED] was smoking a cigarette at 1 Mount Olive and that he lit the cigarette with a lighter.
  122. Mr. [REDACTED] never saw Mr. [REDACTED] speaking to anyone in the hallway of 1 Mount Olive. When he left, Mr. [REDACTED] was still in the foyer. Mr. [REDACTED] also testified that he never saw the police enter the building and that he never told the accused that the ETF were there.
  123. Factual Findings

  124. In assessing the credibility of the accused and [REDACTED] [REDACTED], 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. [REDACTED] 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.
  125. Counsel for the accused submitted that the court should also take into account Mr. [REDACTED]'s lifestyle and the milieu in which he lived in assessing his credibility. Mr. [REDACTED], 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.
  126. Defence counsel also asked the court to consider Mr. [REDACTED]'s lifestyle in assessing his reaction to the shooting. According to Mr. [REDACTED], who spoke to Mr. [REDACTED] only moments after the shooting, Mr. [REDACTED] made no mention of someone having tried to kill him. Instead, Mr. [REDACTED] remained in the complex and decided to have his hair braided. [I note that Mr. [REDACTED] testified that he did, in fact, tell Mr. [REDACTED] about the shooting]. Counsel for Mr. [REDACTED] 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.
  127. Even after due allowance is made for such matters, there are a number of aspects of Mr. [REDACTED]'s testimony that raise concerns regarding the credibility and reliability of his version of events.
  128. According to Mr. [REDACTED], 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.
  129. Contrary to the testimony of Mr. [REDACTED], 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. [REDACTED].
  130. Mr. [REDACTED]'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.
  131. Mr. [REDACTED]'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. [REDACTED] 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.
  132. I also note that although Mr. [REDACTED] 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. [REDACTED] 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 [REDACTED].
  133. As already stated, Mr. [REDACTED]'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. [REDACTED] 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.
  134. Mr. [REDACTED] claimed to recall that Mr. [REDACTED] was smoking a cigarette at 1 Mount Olive on the day in question. However, I find it highly improbable and that Mr. [REDACTED] would or could remember such an inconsequential detail some three and a half years after the fact.
  135. There is no question that there was a cigarette in the hallway of 1 Mount Olive when Mr. [REDACTED] was arrested. However, the evidence is such that I am not satisfied that Mr. [REDACTED] 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. [REDACTED] was standing in the hall when the ETF entered the building.
  136. There were significant discrepancies between the evidence of Mr. [REDACTED] and Mr. [REDACTED] in terms of their locations when the ETF arrived. Mr. [REDACTED] testified that he was outside the door of [REDACTED]'s unit, where he had stopped to chat with [REDACTED]'s sister and her boyfriend. According to Mr. [REDACTED], he was on friendly terms with the occupants of that unit, despite the fight a few weeks earlier between [REDACTED]'s boyfriend and Mr. [REDACTED], during which Mr. [REDACTED] was hit with a bottle. In any event, Mr. [REDACTED] testified that Mr. [REDACTED], who was also present, warned him, "ETF is coming" and then took off.
  137. According to Mr. [REDACTED], he never saw Mr. [REDACTED] speaking to anyone at 1 Mount Olive. When Mr. [REDACTED] left the building for the second and last time, Mr. [REDACTED] was still in the foyer at the south entrance. Mr. [REDACTED] did not observe the ETF officers until ten minutes later, when they escorted Mr. [REDACTED] out of the building in handcuffs. If, as Mr. [REDACTED] described, Mr. [REDACTED] saw the heavily armed ETF officers coming into 1 Mount Olive, warned Mr. [REDACTED] of their presence and then took flight, he would surely have remembered such an event.
  138. Mr. [REDACTED] 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. [REDACTED]'s attempts to minimize his connection to Unit 75. He denied that he frequented that address or that [REDACTED], who lived in that unit, was his girlfriend at the time. The evidence of Mr. [REDACTED] indicates otherwise. Mr. [REDACTED] testified that Mr. [REDACTED] has dated Ms. [REDACTED] for about five years, or as long as he has known him.
  139. Mr. [REDACTED] also had connections to Unit 68. His close friend, [REDACTED], was in that unit on the day of the incident.
  140. In summary, I reject Mr. [REDACTED]'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 [REDACTED]'s apartment - Unit 70 or 72 - as he described. Nor was he smoking the cigarette shown in the crime scene photographs.
  141. I accept the evidence of [REDACTED] that Mr. [REDACTED] was near or in the area of Unit 68 when he first saw him and that Mr. [REDACTED] took flight down the hall. Officers [REDACTED] and [REDACTED] did not see Mr. [REDACTED] run away, most likely because they were behind [REDACTED]. I also note that it would not have taken Mr. [REDACTED], 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 [REDACTED] and [REDACTED] observed him, he was already at or near the end of the hallway. Both [REDACTED] and [REDACTED] testified that they heard [REDACTED] yell "Stop! Police!" - presumably because Mr. [REDACTED] had taken flight. [REDACTED], who was focused on Unit 68, heard someone say, "He's running!"
  142. 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. [REDACTED] estimated that there were only sixty to ninety seconds between the time that Mr. [REDACTED] 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. [REDACTED], who testified that the ETF officers were only in the building for about a minute before they emerged with Mr. [REDACTED] in custody.
  143. Mr. [REDACTED] testified that he complied with all of the officers' commands. However, I find that this was not the case. [REDACTED] described Mr. [REDACTED] as running around or darting from side to side at the end of the hallway and yelling at the officers. [REDACTED] described Mr. [REDACTED] as "jumpy" and appearing to look for an avenue of escape. All three officers - [REDACTED], [REDACTED], and [REDACTED] - testified that even after Mr. [REDACTED] complied by walking backwards and going down on his knees, he refused to keep his hands in the air and kept dropping them down to his waist or in front of his body. Mr. [REDACTED] denied doing this. However, I do not accept his evidence in this regard. It must be remembered that Mr. [REDACTED] had a substantial amount of crack cocaine in his pant pocket which, on his own admission, he was very anxious to get rid of given the circumstances. In fact, according to Mr. [REDACTED], he later managed while in handcuffs and in the custody of [REDACTED] to reach into his pocket, pull out the cocaine and flick it under the ambulance.
  144. Mr. [REDACTED] testified that after he lay down on the floor pursuant to [REDACTED]' instructions and was handcuffed, [REDACTED], for no apparent reason, stepped on his head, thereby causing the injury to his chin. Again, I reject Mr. [REDACTED]'s version of events. I accept the evidence of [REDACTED] and [REDACTED] that [REDACTED] shoved or push-kicked Mr. [REDACTED] in the back while he was kneeling, causing Mr. [REDACTED] to go flat on his stomach. That is most likely when Mr. [REDACTED] sustained the injury to his chin.
  145. I accept the officers' evidence that Mr. [REDACTED] resisted being handcuffed after he was down on the floor. [REDACTED] testified that Mr. [REDACTED]'s hands were under his chest at that point and that he kept trying to push himself up. [REDACTED] testified to a similar effect. [REDACTED] ended up on top of Mr. [REDACTED] and was pushing his chest into Mr. [REDACTED]'s back in an effort to get hold of his hand. [REDACTED] was struggling to take hold of Mr. [REDACTED]'s other hand. That was when [REDACTED] put his boot on Mr. [REDACTED]'s head. The result was that Mr. [REDACTED]'s entire body was on the floor, which allowed the officers to gain control over him so that he could be handcuffed. Mr. [REDACTED] was still on the floor when [REDACTED] arrived. The ETF officers then brought Mr. [REDACTED] to his feet and escorted him outside, where [REDACTED] took custody of him.
  146. I accept the evidence of [REDACTED] that he approached Mr. [REDACTED] and [REDACTED] as they exited 1 Mount Olive, that he addressed Mr. [REDACTED] as "[REDACTED]," and that he then instructed [REDACTED] to arrest Mr. [REDACTED] for discharging a firearm. I find that [REDACTED] followed through with that instruction after Mr. [REDACTED] had been attended to by the paramedics on scene. [REDACTED] then advised Mr. [REDACTED] of his rights to counsel and cautioned him. Upon conducting a search pursuant to the arrest, [REDACTED] discovered the crack cocaine on Mr. [REDACTED]'s person, at which point he advised him that he was also under arrest for possession of cocaine for the purpose of trafficking.
  147. Mr. [REDACTED] testified that he was only arrested for the drug charges that night and that he first learned of the firearms offences when he was in court for a bail hearing the following day. I do not accept his evidence in this regard. His answer to [REDACTED], when asked if he understood his rights to counsel and the caution, was clearly in response to having learned he was facing a charge of discharging a firearm as opposed to a drug offence. He told the officer, "Yes, but I didn't shoot nothing. I just came here from my grandma's to get my hair done. I wanted corn rows." Mr. [REDACTED] repeated on several occasions that night when speaking to Police Constables [REDACTED] and [REDACTED] that he was in the area to see his grandmother and to have his hair done.
  148. Whether there were reasonable grounds to arrest the accused

  149. Section 495 of the Criminal Code permits an officer to arrest without a warrant a person who, on reasonable grounds, he believes has committed or is about to commit an indictable offence. This section requires that an arresting officer must subjectively have reasonable and probable grounds on which to base an arrest. Those grounds must also be justified from an objective point of view. In other words, a reasonable person placed in the position of the officer must be able to conclude that there were, indeed, reasonable and probable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12 at paras. 15-16.
  150. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not 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 the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called on before acting to have anything like a prima facie case for conviction.
  151. In R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont. C.A.), at para. 18, the court pointed out that information that would not meet the reasonableness standard on an application for a search warrant may still meet that standard in the context 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 exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. [emphasis added]
  152. In effecting an arrest, there must be some relationship or logical association of the accused to the crime. Otherwise, there would be very little protection offered by the requirement that the police have reasonable and probable grounds before making an arrest. As stated in R. v. Hall (1995), 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 warrant respectively, are subject to an objective assessment. That is to say there must be a constellation of objectively discernible facts amounting to articulable cause for a lawful investigative detention and a constellation of objectively discernible facts amounting to reasonable and probable grounds for a lawful arrest without warrant.
  153. It is the "constellation of objectively discernible facts" that associates the person to be arrested to the crime.
  154. The totality of the circumstances relied upon by the arresting officer will form the basis for the objective assessment. It would constitute an error in law to assess each fact or observation in isolation. An objective assessment will include the dynamics within which the 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) at para. 4; R. v. Simpson (1993), 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), 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.
  155. 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. The reasonable 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), 122 A.R. 131, [1991] A.J. No.1211 (Q.B.) at para. 72.
  156. In terms of the subjective branch of the test, [REDACTED] testified that he believed he had reasonable grounds to arrest Mr. [REDACTED] based on the description of the suspect shooter and his observations of the accused in what he perceived to be a potentially volatile situation.
  157. The description of the suspect was admittedly vague - a black male wearing a white tank top and with corn rows in his hair. Mr. [REDACTED] 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 [REDACTED], appeared "altered." [REDACTED]' evidence in this regard was supported by the testimony of other officers who observed the accused that night. Given the passage of time - the shooting occurred around 6:30 p.m. and Mr. [REDACTED] was not arrested until after 8:00 p.m. - it was reasonable for [REDACTED] to discount the discrepancy between the suspect's hairstyle and that of the accused.
  158. In addition to fitting the general description of the suspect, Mr. [REDACTED] was in the same building to which the suspect had reportedly fled. The pool of potential suspects was limited in the sense that 1 Mount Olive contains only 13 townhouses; it was not a high rise building with hundreds of tenants. That pool was further narrowed by the fact that [REDACTED] observed Mr. [REDACTED] at or near the door of the same unit the suspect had reportedly entered; that is, the second unit on the right, which is Unit 68.
  159. Another factor [REDACTED] took into account was the fact that when Mr. [REDACTED] saw the police, he took off down the hallway.
  160. I am satisfied that the subjective branch of the test has been satisfied.
  161. The objective branch of the test has also been met: there was a "constellation of objectively discernible facts" amounting to reasonable and probable grounds for the lawful arrest of Mr. [REDACTED] without a warrant. In coming to this conclusion, I have considered the totality of the circumstances, including Mr. [REDACTED]'s proximity to Unit 68 in 1 Mount Olive, the fact that he was a black male wearing a white tank top, and his flight down the hallway. I have also taken into account the dynamics of the entire situation.
  162. Counsel for Mr. [REDACTED] submitted that the significance of the accused's presence at 1 Mount Olive is undermined by the fact that he was not observed there until an hour and a half after the shooting, during which time the perimeter of the building had not been completely secured by police. There were admittedly gaps in the perimeter, most notably on the east side of the building, although Officers [REDACTED] and [REDACTED] had a view of that side. Sgt. [REDACTED] posted officers on the north, south and west sides of the building shortly after her arrival at 6:35 p.m. She also detailed officers to guard the locations where the shooting occurred and shut down all vehicular and pedestrian traffic along Mount Olive. The police presence in the area was obvious; scout cars and uniformed officers from 23 Division were on scene. By 7:15 p.m., members of the ETF had arrived, as well as Sgt. [REDACTED] from the canine unit.
  163. The fact that the building was not entirely secured is certainly a matter for consideration. However, taking into account the totality of the circumstances, I am satisfied that a reasonable person, placed in the position of [REDACTED], would be able to conclude that there were reasonable and probable grounds to arrest Mr. [REDACTED]. As stated in Storrey, supra, police need not have anything like a prima facie case for conviction before making an arrest.
  164. The ETF officers promptly delivered Mr. [REDACTED] into the custody of [REDACTED], who was promptly instructed by Officer [REDACTED] to arrest Mr. [REDACTED] for discharging a firearm. Officer [REDACTED] had additional information on which he based his grounds for arrest, including the fact that the accused's name was "[REDACTED]" - the name attributed to the suspect by 911 callers. Officer [REDACTED] was also aware that Mr. [REDACTED] was the subject of two firearms prohibition orders, suggesting a criminal record for violent or firearms offences. At the time that [REDACTED] carried out Officer [REDACTED]'s instructions to execute the arrest, there were clearly reasonable and probable grounds for the arrest from an objective point of view.
  165. I am satisfied that the "constellation of objectively discernible facts" available to the ETF officers and to [REDACTED], viewed in the context of all of the circumstances amounted to reasonable and probable grounds for the arrest of Mr. [REDACTED]. The arrest was lawful, as was the search conducted pursuant to the arrest. There was no violation of the accused's s. 8 or 9 Charter rights.
  166. Whether there was a violation of the accused's s. 7 Charter rights

  167. I find that the force used by the ETF officers was not excessive and that Officer [REDACTED] acted reasonably in the circumstances. Those circumstances included the fact that Mr. [REDACTED] kept dropping his hands in front of his body, despite being ordered to keep them up or on his head where the officers could see them. This caused Officer [REDACTED] to be concerned that Mr. [REDACTED] was reaching for a weapon concealed in his waistband. In reality, Mr. [REDACTED] was probably reaching for the cocaine in his pocket, but the officers had no way of knowing that. What they did know was that there had been a shooting in the area - confirmed by the presence of multiple shell casings on the ground - and that an armed suspect had been seen fleeing into the same building in which they encountered Mr. [REDACTED]. The officers testified that hallways are a particularly problematic setting in these situations: there is no place to go if someone starts shooting. In addition, innocent residents could walk into the hallway at any time and get caught in the cross-fire. This potential danger added further urgency to the situation in terms of gaining control over Mr. [REDACTED] and executing the arrest.
  168. After Mr. [REDACTED] went to his knees, he continued to drop his hands in front of him, despite [REDACTED]' commands to keep his hands up. He continued to yell at the officers. At that point, Officer [REDACTED] decided to approach Mr. [REDACTED] "to get him under control and to control the situation so that no one got hurt." He consequently shoved or "push-kicked" Mr. [REDACTED] between his shoulder blades to get him down as fast as possible. The force applied caused Mr. [REDACTED] to go down on his stomach. His hands, according to Officer [REDACTED], were under his chest. As stated earlier, this is most likely when Mr. [REDACTED] sustained the cut to his chin and the two cracked molars. Officer [REDACTED], who saw [REDACTED] administer the push-kick, testified that given the circumstances, he did not see any other way of getting Mr. [REDACTED] to the ground. Mr. [REDACTED] was described as, and is in fact, a big man.
  169. Once prone, Mr. [REDACTED] resisted being handcuffed and would not let the officers take his hands. [REDACTED], who described Mr. [REDACTED] as "fighting hard" not be handcuffed, was trying to take hold of his one hand while [REDACTED] struggled to take hold of the other. Mr. [REDACTED] was trying to get up or push himself off the ground. As a result, [REDACTED] stepped on the back of Mr. [REDACTED]'s head - an action he took in order to keep Mr. [REDACTED]'s head, as well as the rest of his body, on the ground. In the end, this maneuver enabled the other two officers to finally pull out Mr. [REDACTED]'s hands from under him and get him handcuffed. Officer [REDACTED], who observed [REDACTED] step on Mr. [REDACTED]'s neck, 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.
  170. The force used by [REDACTED] was not gratuitous or used for the purpose of causing bodily harm to Mr. [REDACTED]. The force was employed for the purpose of getting and keeping Mr. [REDACTED] on the ground so that he could be handcuffed and prevented from using any firearm or weapon he may potentially have had on his person. While considerable force was used, causing some pain or injury to Mr. [REDACTED], the situation was such that the police could not be expected to measure the force used with exactitude: see R. v. Mulligan, [2000] O.J. No. 59, 142 C.C.C. (3d) 14 (C.A.) at para. 41, citing R. v. Bottrell (1981), 60 C.C.C. (2d) 211, [1981] B.C.J. No. 855 (C.A.) at 218.
  171. Given the potentially volatile circumstances as outlined above, as well as Mr. [REDACTED]'s refusal to keep his hands where the officers could see them and his resistance to being handcuffed, I conclude that the force used by the officers in executing the arrest was not excessive or abusive. There was no violation of Mr. [REDACTED]'s s. 7 Charter rights.
  172. Whether the test for gunshot residue and the seizure of the accused's tank top violated the accused's s. 8 Charter rights

  173. Mr. [REDACTED] was arrested around 8:14 p.m. He was immediately escorted by [REDACTED] to where the paramedics were located and examined by them. He was then told by [REDACTED] that he was under arrest for discharging a firearm, advised of his rights to counsel and cautioned. A search incidental to the arrest led to the discovery of crack cocaine on Mr. [REDACTED]'s person. Mr. [REDACTED] was then advised that he was also under arrest for possession of cocaine for the purpose of trafficking. He was again told of his rights to counsel and cautioned. Mr. [REDACTED] indicated that he wished to speak to counsel.
  174. The paramedics advised [REDACTED] that Mr. [REDACTED] required sutures to close the wound to his chin. Consequently, the officer escorted Mr. [REDACTED] to the hospital, arriving there around 8:45 p.m. They waited two-and-a-half hours before Mr. [REDACTED] was seen by a doctor. In the meantime, at 10:29 p.m., and before Mr. [REDACTED] was given the opportunity to speak to his lawyer, Detective [REDACTED] attended at the hospital and tested Mr. [REDACTED]'s hands for gunshot residue. The test took a couple of minutes and involved taking tape-lifts from his hands. It did not cause Mr. [REDACTED] any pain or discomfort.
  175. In R. v. Backhouse, [2005] O.J. No. 754 (C.A.), the Court held that a test for gunshot residue was a search incident to arrest. Rosenberg J.A., at paragraphs 141 to 143 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, [1997] 1 S.C.R. 607, at paras. 41 and 42, Cory J. approved of the following excerpt from R. v. Paul (1994), 95 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 or dangerous and seizures are justified to preserve evidence that may go out of existence or be otherwise lost. As neither circumstance existed here, the Crown cannot rely on a power that is incidental to an arrest to justify seizure of the hair samples.... In my opinion, the power 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 the evidence would have been lost. However, the fact that a seizure may be necessary to preserve evidence does not determine the question of 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 substances. The search conducted in this case did not involve the seizure of bodily substances. The officer merely used the "dabbers" to remove the gunshot residue from the appellant's skin.
    • As Lamer C.J.C. said in R. v. Caslake, [1998] 1 S.C.R. 51, 121 C.C.C. (3d) 97 (S.C.C.) at para. 15, "Since search incident to arrest is a common-law power, there are no readily ascertainable limits on its scope. It is therefore the courts' responsibility to set boundaries which allow the state to pursue its legitimate interests, while vigorously protecting individuals' right to privacy." The state had a legitimate interest in conducting the hand washing in this case to determine whether the appellant had been handling a firearm. The procedure was conducted within hours of the shooting, within the time that useful results could be expected to be obtained. The appellant's right to privacy was not seriously compromised by the procedure. He was already lawfully under arrest, the procedure was not intrusive, and it involved only a washing of the surface of the skin. It was far removed from the strip search considered in R. v. Golden, [2001] 3 S.C.R. 679, or a body cavity search. I note that in Golden, the Supreme Court held that even strip searches could be conducted as searches incident to arrest, provided certain conditions are met. See R. v. Golden at paras. 87, 99 and 104. No such additional conditions are necessary for a hand washing test.
  176. In the present case, as in Backhouse, the state had a legitimate interest in conducting the GSR test to determine whether Mr. [REDACTED] had been handling a firearm. The procedure was conducted within hours of the shooting and within the time-frame that useful results could be expected to be obtained. Mr. [REDACTED]'s right to privacy was not seriously compromised by the procedure. He was already lawfully under arrest, the procedure was not intrusive, and it involved only a dabbing of the surface of the skin. The test was conducted in a reasonable way that did not interfere with Mr. [REDACTED]'s dignity or bodily integrity.
  177. I find that the tape-lifts taken for gunshot residue constituted a search incidental to the arrest and did not violate Mr. [REDACTED]'s rights under s. 8 of the Charter.
  178. I also find that the seizure of Mr. [REDACTED]'s tank top did not violate his s. 8 rights. Again, I rely on the Backhouse decision, which dealt with a similar issue at paras. 84 to 90.
  179. As previously stated, for a search incident to arrest to be lawful, it must meet three conditions: the arrest must be lawful, the search must be incident to arrest (i.e., related to the reasons for the arrest itself), and the search must not be conducted in an abusive fashion.
  180. Mr. [REDACTED]'s arrest was, in my view, lawful. The search was related to the reasons for his arrest. The police had reason to believe that Mr. [REDACTED] had been involved in a shooting that had taken place only hours earlier. The seizure of his clothes, including the white tank top with the blood on it, was for the purpose of inspection and forensic examination and was related to the reasons for the arrest. The police needed to preserve the evidence and to prevent its disposal. They could only do so by seizing the clothing. Finally, the seizure was conducted in a non-abusive fashion. Mr. [REDACTED]'s clothing was taken from him at the police station without the use of force and by officers of the same gender. He was provided with other clothing. I conclude that the seizure of the white tank top and his jeans was a lawful search.
  181. If I am wrong and the gunshot residue procedure carried out on the accused's hands was not a lawful search as a search incident to arrest, and the seizure of his clothing was unlawful, I would nevertheless not exclude this evidence under s. 24(2) of the Charter.
  182. In R. v. [REDACTED][2009] 2 S.C.R. 353, 2009 SCC 32, the Supreme Court held that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2). These lines of inquiry are to be viewed in a long-term, forward-looking, and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:
    • the seriousness of the Charter-infringing state conduct (the admission of the evidence may send the message the justice system condones serious state misconduct);
    • the impact of the breach on the Charter-protected interests of the accused (the admission of the evidence may send the message that individual rights count for little); and
    • society's interest in the adjudication of the case on its merits.
  183. In the present case, the police behaviour in breaching the accused's s. 8 rights, if such a breach occurred with respect to the GSR test, cannot be categorized as egregious. The police had reasonable grounds to believe that evidence would be obtained through the testing. There was some urgency to carrying out the procedure as soon as possible. I refer in this regard to the evidence of the expert witness, Robert Gerard, who testified as to the rate of depletion of gunshot residue particles. The procedure was carried out before Mr. [REDACTED] had an opportunity to consult with his lawyer. However, given the fact that gunshot residue may be rubbed off, there would have been a risk of compromising the test results had Mr. [REDACTED] been afforded privacy while speaking to counsel. The procedure was conducted in a non-intrusive fashion and was completed in a few minutes. The results of the test are not crucial to the Crown's case but are a piece of circumstantial evidence to be considered in the context of all of the other evidence. Balancing the factors set out in Grant, I find that the repute of the justice system would not suffer from allowing the GSR test and its results to be admitted into evidence.
  184. I have come to a similar conclusion with respect to the seizure of Mr. [REDACTED]'s tank top. The police had reasonable grounds to believe that evidence would be obtained from an examination and testing of the clothing and that the seizure was necessary in order to preserve evidence that may otherwise be lost. Their conduct in seizing the shirt was not capricious or egregious. The seizure was conducted in a non-abusive manner. The results of the DNA testing, which is crucial to the Crown's case, may be described as reliable. Society's interest in having this case adjudicated on its merits strongly favours the admission of the evidence. A balancing of the factors set out in [REDACTED]leads me to conclude that the admission of the shirt and the scientific evidence derived from it would not bring the administration of justice into disrepute.
  185. The DNA Warrant

  186. Subsection (c) of the accused's Notice of Application asks for the exclusion of the results of the forensic analysis conducted on a DNA sample obtained from Mr. [REDACTED] by the execution of a search warrant by police on November 17, 2008. The information to obtain the warrant refers to statements made by Mr. [REDACTED] to Sgt. [REDACTED] during an interview commencing at 11:55 p.m. on June 19, 2006. The Crown has conceded that these statements are inadmissible on the basis that Mr. [REDACTED]'s s. 10(b) Charter rights were violated. However, given the other facts contained in the information, the warrant would have been issued in any event, even without reference to the impugned statements. Their excision would not have altered the Provincial Court Judge's decision to authorize the warrant.
  187. Conclusion

  188. There being no violation of Mr. [REDACTED]'s s. 7, 8 or 9 Charter rights, the application to exclude the evidence listed in paragraphs (a) to (e) of the accused's Notice of Application is dismissed.
  189. Judge: [REDACTED].

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