Case Name:
R. v. Kerr

Between
Her Majesty the Queen, and
Kevin Kerr

[2005] O.J. No. 5655

Ontario Superior Court of Justice
Toronto, Ontario
P.U. Rivard J.

Oral judgment: November 24, 2005.
(83 paras.)

Constitutional law — Canadian Charter of Rights and Freedoms — Legal rights — Protection against unreasonable search and seizure — Remedies for denial of rights — Specific remedies — Exclusion of evidence — Application by Kerr for exclusion of evidence allowed — Given very loose clothes worn by Kerr that day, officer could not have noticed bulge in Kerr's waist area — Officer knew he had no right to search Kerr and acted in blatant disregard for Kerr's rights — Admission of evidence would have brought administration of justice into disrepute.

Application by Kerr for exclusion of evidence — Kerr attended community event with his friend — Police was stationed at event to ensure that persons had no alcohol — Police asked Kerr whether he had alcohol — Police officer testified that he noticed bulge in Kerr's clothing and that Kerr made sudden move, which made officer suspect that Kerr had weapon — Police officer brought Kerr to the ground and found a handgun — Kerr claimed that he had no bulge and made no sudden move — Kerr claimed handgun belonged to friend — Videotape showed that Kerr was slight man and was wearing baggy clothing on that day — HELD: Application allowed — Given very loose clothes worn by Kerr that day, officer could not have noticed bulge in Kerr's waist area — Officer's evidence evasive — Kerr's assertion that he made no sudden move credible and reasonable — Officer searched Kerr without reasonable cause — Evidence was non-conscriptive and admission would not have rendered trial unfair — Officer knew he had no right to search Kerr — Officer carried out search in blatant disregard of Kerr's right to be secure from unreasonable search — Kerr was a young black man, without a criminal record, on his way to a community event and was entitled to reasonable expectation of privacy — Admission of evidence would have condoned serious breach of individual's right, which would have brought administration of justice into disrepute.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982 s. 8

Counsel:

Ms. Mazur-Moore, for the Crown;

Mr. Gorham, for the defendant.


 1      P.U. RIVARD J. (orally):— On August 3rd, 2003, members of the Toronto Police Service were stationed at the entrance to the ferry docks to provide for the orderly flow of people attending a Caribana event, taking place on Toronto Island.

 2      The police officers were instructed to ask people going to the island if they had alcohol as this was an alcohol free event.

 3      When persons indicated they had alcohol, they were given the choice of returning it to their vehicles or to dump it in a bin. Those who said they didn't have alcohol were asked by the police if they could look into their coolers or bags. People generally complied and permitted the officers to check their coolers, packsacks, or bags.

 4      At approximately 3:58 p.m., Mr. Kerr and Mr. Walia, his friend, purchased tickets to take the ferry to Toronto Island. They then entered the waiting area where police officers were stationed to inquire about alcohol. Constable Hassall spoke to Mr. Kerr and asked him if he had any alcohol. What follows is in dispute.

 5      Constable Hassall testified that when he first saw Mr. Kerr, he noticed a bulge under Mr. Kerr's right waist area. As Mr. Kerr approached him, he asked Mr. Kerr if he had alcohol with him. Constable Hassall said Mr. Kerr made a sudden quick movement toward his waistband and lifted his shirt. Although Constable Hassall's first thought was that Mr. Kerr had a mickie in his waistband under his shirt, he testified the speed of Mr. Kerr's movement caused him to think he had a weapon.

 6      Constable Hassall said he immediately took hold of Mr. Kerr's hand as he felt threatened by Mr. Kerr's action. Constable Hassall then reached under Mr. Kerr's shirt and grabbed a hold of a handgun tucked in Mr. Kerr's pants.

 7      Mr. Kerr was then taken to the ground. Constable Corra drew his firearm and pointed it at Mr. Kerr. Constable Hassall and Constable Grant then arrested Mr. Kerr's companion. Both Mr. Kerr and his friend were then taken into custody.

 8      Mr. Kerr testified he was, in fact, carrying a handgun, which he had tucked inside his pants in his waist area. He said he had been asked by his friend to carry the handgun from the car to the island because his friend had a criminal record and feared he might be searched. His friend, Mr. Walia, confirms this.

 9      Mr. Kerr agrees that Constable Hassall asked him if he had alcohol. Mr. Kerr denied, however, that he made any sudden move or behaved in any manner, which would cause Constable Hassall to search him.

 10      Mr. Kerr testified that Constable Hassall, after asking if he had alcohol, immediately proceeded to search his waist area and found the handgun.

 11      Mr. Kerr said the clothing he wore was baggy and that there was no bulge in his waist area as Constable Hassall testified.

 12      Following his release on bail, Mr. Kerr took the clothing he wore on August 3rd to his lawyer. That clothing has been produced, and during his testimony, Mr. Kerr was given an opportunity to change into it.

 13      The defence has produced a videotape of Mr. Kerr when he was paraded at the police station following his arrest.

 14      Although the Crown attempted, on cross-examination, to show that the clothing Mr. Kerr produced and wore during the hearing was not the same clothing he wore on August 3rd, 2003, I am satisfied, upon closely reviewing the video, that it was indeed the same clothing.

 15      This clothing consisted of a Washington Wizards basketball shirt with number 23, a black jacket, black pants, and a white shirt. This clothing, when worn by Mr. Kerr at the hearing and on the video when he was arrested, is very loose fitting. It can properly be described as very baggy and oversized.

 16      When he was cross-examined, Constable Hassall insisted he could see a bulge under Mr. Kerr's clothing. Constable Hassall agreed Mr. Kerr's clothing was not tight fitting but testified the clothing was not so baggy that he couldn't see the gun. Upon being pressed on this issue, Constable Hassall stated he didn't know what was meant by baggy. He then said Mr. Kerr's basketball jersey was loose fitting only insofar as it wasn't tucked in. He added he wasn't a tailor.

 17      The videotape clearly shows the clothing Mr. Kerr wore was baggy.

 18      During the hearing, Mr. Kerr was asked to place the handgun in his waist area as he had it on August 3rd, 2003. He did so, and I very carefully looked to see if any bulge or other indication of a gun was visible under the clothing. I am satisfied there was no bulge visible in Mr. Kerr's waist area when he was in Constable Hassal's presence.

 19      I also found Constable Hassall evasive when questioned about whether Mr. Kerr had a slight build. Mr. Kerr is a skinny man, but Constable Hassall would not readily say so.

 20      I accept Mr. Kerr's evidence when he said he made no sudden move or gesture to cause Constable Hassall to search him. It is not credible or reasonable to believe that Mr. Kerr would, in the presence of several police officers, move to draw this handgun.

 21      Constable Hassall agreed that he knew he didn't have the authority to search a person based on a hunch. His evidence was tailored to attempt to persuade the Court he had reasonable grounds to search Mr. Kerr.

 22      I am satisfied, on all of the evidence adduced on this application, that Mr. Kerr's clothing was so baggy that no bulge was visible in his waist area and that Constable Hassall searched him without reasonable cause. This a warrantless search.

 23      The Crown has conceded that, upon these findings of fact being made, Mr. Kerr's right to be free from unreasonable search and seizure was violated. I will therefore consider whether evidence obtained, as a result of this search, ought to be admitted.

 24      The evidence obtained was non-conscriptive. Its admission will not, therefore, operate to render the trial unfair. The violation of Mr. Kerr's right, under s. 8 of the Charter, was a serious matter.

 25      Constable Hassall was well aware that he had no authority to search Mr. Kerr. He knew he could not conduct the search based on a hunch. In blatant disregard of Mr. Kerr's fundamental right to be secure from an unreasonable search, he carried out the search. I cannot conclude that, in such circumstances, Constable Hassall was acting in good faith.

 26      Mr. Kerr was a 22-year-old black male, without a criminal record, on his way to a community event. He was entitled to a reasonable expectation of privacy, including an expectation he would not suffer the indignity of being arbitrarily searched.

 27      What would be the effect of excluding the evidence obtained as a result of this illegal search?

 28      If the handgun is excluded from the evidence, Mr. Kerr will have escaped justice and his crime will go unpunished.

 29      On the other hand, to admit this evidence obtained as a result of an illegal search and disregard of an individual's constitutional right cannot be ignored.

 30      Although I accept that the exclusion of the handgun will have an effect on the repute of the administration of justice, the admission of such evidence would be tantamount to condoning a serious breach of an individual's right, which would, itself, bring the administration of justice into disrepute.

 31      As a result, the application will be allowed, and the evidence obtained from this illegal search will not be admitted.

* * * * *

 32      Now, where do we go from here?

 33      MS. MAZUR-MOORE: No evidence, Your Honour.

 34      THE COURT: Okay. Mr. Gorham?

 35      MR. GORHAM: I invite you to enter a verdict of not guilty given there's no other evidence.

 36      THE COURT: The difficulty there is that you've elected trial by judge and jury, and I would have to direct the jury to return a verdict of not guilty, unless the Crown will consent, at this time, to a re-election; then I can accede to your request.

 37      MR. GORHAM: I forgot about that, yes.

 38      MS. MAZUR-MOORE: Crown is agreeable to a re-election.

 39      THE COURT: Please arraign Mr. Kerr and put him to his re-election.

 40      THE REGISTRAR: Kevin Kerr, you stand charged that you, on or about the 3rd day of August in the year 2003, at the City of Toronto, in the Toronto Region, did carry a concealed weapon without being a holder of a permit under which you may lawfully carry it, to wit: a .32 calibre handgun serial number 197853, contrary to the Criminal Code.

 41      You stand further charged that you, on or about the 3rd day of August in the year 2003, at the City of Toronto, in the Toronto Region, did have in your possession a restricted weapon, to wit: a .32 calibre handgun serial number 197853 for which you did not have a registration certificate issued to you, contrary to the Criminal Code.

 42      You stand further charged that you, on or about the 3rd day of August in the year 2003, at the City of Toronto, in the Toronto Region, unlawfully did have in your possession a loaded prohibited firearm, to wit: a .32 calibre handgun serial number 197853 while you were not the holder of an authorization or licence to have the said firearm and you were not the holder of a registration certificate for the said firearm, contrary to the Criminal Code.

 43      You stand further charged that you, on or about the 3rd day of August in the year 2003, at the City of Toronto, in the Toronto Region, not being the holder of a licence, did possess a prohibited device, to wit: a prohibited magazine, contrary to the Criminal Code.

 44      Given your notice of your wish to re-elect the mode of your trial, you now have the option to do so. How do you wish to re-elect?

 45      MR. GORHAM: Mr. Kerr re-elects, to be tried by a court composed of a judge sitting alone.

 46      THE REGISTRAR: Crown?

 47      MS. MAZUR-MOORE: Content.

 48      THE REGISTRAR: Can both counsel come forward and sign the re-election form.

 49      Are you waiving the re-arraigning of the defendant?

 50      MR. GORHAM: Yes, he does.

 51      THE REGISTRAR: Mr. Kerr, on this indictment, how do you plead to count one, guilty or not guilty?

 52      THE DEFENDANT: Not guilty.

 53      THE REGISTRAR: To count two?

 54      THE DEFENDANT: Not guilty.

 55      THE REGISTRAR: To count three?

 56      THE DEFENDANT: Not guilty?

 57      THE REGISTRAR: To count four?

 58      THE DEFENDANT: Not guilty.

 59      THE COURT: On the basis of the Crown's intention not to call any evidence, all charges against Mr. Kerr will be marked dismissed.

 60      Mr. Kerr?

 61      THE DEFENDANT: Yes?

 62      THE COURT: You're a very lucky man, and because there is no question, in my mind, you had a loaded handgun in your possession, and had you been found guilty of that, you would have almost certainly had to serve some jail time, because in this atmosphere in Toronto when guns are increasingly in use, there is really no tolerance anymore for people who carry handguns and, particularly, handguns.

 63      Do you understand that?

 64      THE DEFENDANT: I understand.

 65      THE COURT: And in addition to probably going to jail, I don't know what that would have done with your immigration status, but you put a lot at risk here.

 66      Now, you were very, very fortunate because I must say that the decision that I made today was a very close one and I caution you that, if you are ever in this kind of trouble again, it is unlikely that you are going to get this kind of result.

 67      Do you understand?

 68      THE DEFENDANT: I understand. I promise I won't be in this kind of trouble again.

 69      THE COURT: Stay away from guns.

 70      THE DEFENDANT: All right.

 71      MS. MAZUR-MOORE: Your Honour, there is one thing I would like to ask for is a forfeiture order. I don't think Mr. Kerr should have this firearm, or Mr. Walia, for that matter. I would be asking for a --

 72      THE COURT: There will be such an order. There will be an order forfeiting the firearm to the Crown, okay?

 73      MS. MAZUR-MOORE: Thank you.

 74      THE COURT: Do you need special wording for that?

 75      MS. MAZUR-MOORE: If I could just have a moment's indulgence or, perhaps, Your Honour wouldn't mind, I just want to confirm.

 76      Your Honour, perhaps 491.1, the order for forfeiture of property obtained by crime.

 77      THE COURT: 491.1?

 78      MS. MAZUR-MOORE: Court's indulgence.

 79      THE COURT: Do you have any submissions on that, Mr. Gorham?

 80      MR. GORHAM: No, I don't, Your Honour. Mr. Kerr never did assert any proprietary interest in the gun.

 81      THE COURT: Well, I am satisfied, pursuant to s. 491.1 of the Criminal Code, that the firearm seized be forfeited to Her Majesty and disposed of as the Attorney General directs.

 82      MS. MAZUR-MOORE: Thank you, Your Honour.

 83      THE COURT: Court is adjourned.

QL UPDATE:  20060112
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