Counsel for the Crown, B. Gluckman, Mr.
Counsel for the Accused, D. Brown, Mr.
¶ 1 R.G. BIGELOW J. (orally):— Mr. Ferrigon is charged with simple possession of cocaine and two counts of fail to comply with probation. He has brought an application for a stay of proceedings based on alleged breach of his rights under sections 8 and 9 of the Charter or in the alternative for the exclusion of any evidence obtained as a result of the alleged breaches.
¶ 2 I heard evidence on the application from the Applicant as well as from the two police officers involved in the Applicant's arrest and it was agreed by the parties that the evidence would apply to the trial proper.
¶ 3 The Applicant indicated that on the 10th of July, 2004, he had gone to the home of his girlfriend and when he left he had called a cab to take him to his mother's house since the buses were no longer running. He was wearing a white tee shirt, light blue jeans and white shoes. He stated that he is between 5'8" and 5'9" tall and his hair was braided. At approximately 4:00 a.m., as he was getting into the cab, he noticed a police car. As the cab started up the police car blocked it from continuing and one of the officers from the car approached the cab with his hand on his gun and stated, "Get your hands up. You're under arrest." When the Applicant asked what for, he was told, "For robbery." The Applicant was then pulled from the car and asked, "Where's the Jewellery?" He was searched and a quantity of cocaine was found in the right change pocket of his pants. He was then taken to a nearby plaza where the victim of the alleged robbery was brought to the police vehicle and indicated that Mr. Ferrigon was not the individual who had robbed him.
¶ 4 The evidence of the police officers was that they were on routine patrol at about 3:30 a.m. on the 10th of July, 2004, when they received a radio call with respect to a robbery of a cab driver. The description of the suspect that they received was male, black, 6'1", skinny, long braids, white tee shirt, light blue jeans, white shoes and tattoos on the neck and arms. At approximately 4:00 a.m. they saw a person they described in their evidence as male, black, 6', wearing light tee shirt and light jeans approaching a cab approximately a block from the scene of the robbery. The area was not well lit.
¶ 5 They blocked the cab from proceeding and approached the male. They asked him to get out of the cab and show them his hands. He complied. One of the officers stated that he had a brief conversation with Mr. Ferrigon advising him that they were investigating a robbery and that he fit the description of the suspect and asking him where he was coming from and where he was going. That officer also stated that Mr. Ferrigon indicated he was coming from a friend's house and was going to his girlfriend's house but was unable to give the address of the friend and appeared nervous and wanted to leave. Neither officer saw any tattoos. They stated that the area was very dark, Mr. Ferrigon had dark skin and they did not know what type of tattoos to be looking for. They made no effort to use a flashlight or any other source of light to better determine whether he had any tattoos.
¶ 6 They further indicated that he was searched pursuant to arrest, both for weapons and for any evidence related to the offence. An amount of cocaine was found on him. He was then taken to the scene of the robbery and the victim advised that he was not the man who had committed that offence. Later it was determined that Mr. Verrigan was on probation and had conditions that he not have narcotics in his possession and not be in an area which included the place where he was arrested.
¶ 7 Constable Zettler stated in his evidence that he was 6' tall. Therefore, based on the description provided, he was looking for an individual somewhat taller than he was.
¶ 8 It was agreed by the Crown that in fact Mr. Ferrigon is between 5'8" and 5'9" tall, three to four inches shorter than Constable Zettler.
¶ 9 A copy of the Toronto Police I/CAD Event Details Report, which summarizes police radio communications with respect to this matter indicates that the description provided over the radio with respect to the tattoos on the suspect's neck and arms included the statement, "No descrip (sic), just very visible tattoos." Both officers stated they had not heard this portion of the description, although they heard the rest of the description.
¶ 10 Counsel for the Applicant takes the position there were no reasonable and probable grounds to arrest his client since he clearly did not fit the description of the suspect and that absent such grounds the arrest of his client was illegal and therefore, the search was unlawful.
¶ 11 The Crown takes the position that the police did in fact have reasonable and probable grounds to arrest the Applicant and that the police were entitled to search him incident to the arrest both for weapons and evidence. In his factum, the Crown also argued that even if there were not reasonable and probable grounds for arrest there were grounds for detaining the Applicant for investigative purposes and a cursory search was reasonable, although he appeared to have abandoned that argument in his oral submissions.
¶ 12 The Crown further argued that even if the Court found a breach of sections 8 or 9 of the Charter, the evidence should still be admitted since it was real evidence that would not affect trial fairness, any violation was brief and technical and the admission of the evidence would not bring the administration of justice into disrepute.
¶ 13 The law is clear that Section 8 of the Charter allows for a warrantless search only where it is authorized by law, the law is reasonable and the search is conducted in a reasonable manner. It is also clear that the onus is on the Crown to establish that a warrantless search complies with those requirements. R. v. Collins (1987), 56 C.R. (3d) 193 (S.C.C.). In this case, the Crown takes the position that the search was authorized by law as a search incident to arrest and was conducted in a reasonable manner.
¶ 14 In R. v. Storrey (1990), 53 C.C.C. (3d) 316, Justice Cory discussed the meaning of the requirement for reasonable and probable grounds to make an arrest and stated: "In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, 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. On the other hand, the police need not demonstrate anything more than reasonable and probably grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest."
¶ 15 In the case of R. v. Golub, 117 C.C.C. (3d) 193, the Ontario Court of Appeal considered what inquiries a police officer was required to make in the course of determining whether or not reasonable grounds existed for arrest and stated:
"In deciding whether reasonable grounds exist, the officer must conduct the inquiry, which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable."
¶ 16 The Crown relies on the decision of our Court of Appeal in R. v. Hall,  O.J. No. 544, for the proposition that a perfect match to a description is not required in order for a police officer to have reasonable grounds for arrest. In that case a description of a suspect had been provided, which included an estimation of age as in his 20s. When the arresting officer approached the accused, he estimated his age to be in his 40s. In upholding the conviction the Court of Appeal stated:
"There is no doubt that the appellant did not match the age estimate including the description made available to Constable Clarida. This, however, is but one factor which might suggest that the appellant was not the suspect. A perfect match is not required."
¶ 17 However, the Court also went on to state:
"In my view, it is the accumulation of identification-related factors which is significant."
¶ 18 In reviewing those identification-related factors or identifiers all of the information available to the officer at the time or easily obtainable in the circumstances must be considered. Those factors which are not supportive of the identification cannot just be ignored. I am satisfied the arresting officers believed they had reasonable grounds to arrest, but I am also satisfied that in coming to that conclusion they ignored at least two very significant factors, which not only suggested that the accused was not the suspect, but made it clear he could not have been the suspect: the lack of tattoos and the clear and significant discrepancy in the height of Mr. Ferrigon and that provided in the description of the suspect. They had no reason to disregard those factors. Any issues arising from the lighting conditions and the darkness of Mr. Ferrigon's skin could have been easily addressed. There was no urgency. Both officers indicated that Mr. Ferrigon was cooperative and followed their instructions.
¶ 19 In my view, an objective person who had the information which was available to the arresting officers could not have had reasonable grounds to arrest. Accordingly, I find that the arrest of Mr. Ferrigon was unlawful and therefore, any search cannot be justified as being incident to a lawful arrest.
¶ 20 As I indicated above, the Crown in his written material also argued that the stop and search of the Accused could be justified as investigative detention but did not argue that in oral argument. Although there may well have been grounds for a brief investigative detention and perhaps pat down search for weapons, clearly the arresting officers went beyond that.
¶ 21 Counsel for the Accused has applied for both a stay of proceedings and exclusion of evidence as a result of the breaches of Mr. Ferrigon's Charter rights. I do not find that the breaches here are of the type required to justify a stay of proceedings. However, I am satisfied that this is a case where the exclusion of evidence is an appropriate remedy. The evidence sought to be excluded is the evidence obtained as a result of the breach. Although it is evidence which would not affect the fairness of the trial, the seriousness of the breach in my view is such that the admission of the evidence would bring the administration of justice into disrepute.
¶ 22 Therefore, I exclude from evidence the findings of the narcotics as well as the fact that Mr. Ferrigon was in an area which he was prohibited from entering by terms of probation order at the time of his arrest. Without that evidence the Crown has failed to prove any of the offences upon which the Accused was arraigned beyond a reasonable doubt and accordingly, all charges are dismissed. I would like to thank both counsel for their assistance in dealing with this matter. Both their written and oral submissions were of great assistance to the Court.
QL UPDATE: 20051207