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Factors leading to arrest to be viewed cumulatively


June 18, 2019
By Mike Novakowski


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It is an error in law for a judge to assess an officer’s grounds for arrest in isolation rather than in their totality, as we see in R. v. Omeasoo & White, 2019 MBCA 43. In this case, the police received information from a 911 caller at about 1:40 a.m. of a road-rage incident involving firearms. A red “Chevy” Silverado truck had cut off the driver of another vehicle after he drove up beside the truck and gestured. The caller reported that the truck followed the other vehicle and pulled over. Two males exited the truck and were armed with handguns. No shots were fired.

The caller, who was not involved in the incident, described the two males as white, one wearing a white hoodie and a baseball cap, and the other wearing a black hoodie or sweater and a baseball cap.

Two police officers near the area responded. As they drove on the street where the red truck was last seen, they saw no other vehicles on the road. They did see a red truck parked at a Tim Horton’s restaurant nearby. The vehicle, a Dodge Ram, was the only vehicle in the parking lot and was occupied by two males. The officers watched the passenger, who was wearing blue jeans, a black shirt and a baseball cap, go into the Tim Horton’s restaurant towards the washrooms. Two to four minutes later, they saw him leave the washroom area, go to the cashier and return to the truck carrying a juice bottle. In addition to the cashier, there were at most two other people in the restaurant.

Concerned about the safety of people in the area, the officers went to speak to the occupants of the truck at 1:54 a.m. They wanted to investigate whether the men were involved in the firearms incident. One officer went to the driver’s side of the truck and noticed it was running. The driver was not wearing a baseball cap and the passenger was Indigenous.

A second officer went to the passenger side of the truck. He used his flashlight but did not see any firearms. The driver provided identification in the name of White while the passenger verbally identified himself as Joseph Omeasoo. The names were checked in the police computer but there were no outstanding warrants or court orders. At 2:00 a.m. the men were told they were free to go.

One of the officers then went to use the washroom inside the Tim Horton’s restaurant. He found a .22 calibre bullet in the urinal and showed it to his partner. The officers determined that they had reasonable grounds to believe that the men had been involved in the firearms incident and that the passenger had left the bullet in the urinal.

At 2:06 a.m., the officers returned to the truck and arrested the men for a “firearms investigation.” Omeasoo’s name was determined to be Jaden, not Joseph, and it was learned he was breaching a probation order. The men were advised of their s. 10(b) Charter rights and the truck was searched. Police found a “crack pipe” and crystal methamphetamine.

When they searched Omeasoo at the police station, they found crack cocaine. The truck was again searched at the police station and police found a .22 calibre assault rifle, a prohibited clip for the rifle with ammunition and more than two kilograms of illegal drugs, including cocaine, marihuana, fentanyl, MDMA and methamphetamine. The men were charged with possessing drugs for the purpose of trafficking and several firearms offences. White was also charged with additional weapons offences.

In the Manitoba Court of Queen’s Bench, the Crown conceded that the officers’ initial contact with the men was an investigative detention and the police failed to advise them of their s. 10 Charter rights because the officers did not tell them why they were being detained nor provide them with their right to counsel.

During cross-examination by defence, the officers were questioned about the differences between the information they had received about the firearms incident from the 911 call and what they observed. In particular, defence counsel highlighted:

  1. the truck was a red Dodge Ram not a red Chevrolet Silverado
  2. only one of the males was white (one of the males was Indigenous)
  3. only one of the males was wearing a baseball cap
  4. the passenger was wearing a black shirt, but neither of the males was wearing a hoodie or a sweater

One of the officers responded that he could not tell the difference between a Chevrolet Silverado and a Dodge Ram and that, in his 12 years of police experience, people very often get the make and model of a vehicle wrong.

When it was suggested to the other officer that the passenger was Indigenous and not white, he said, “It never crossed my mind.” He also said that people sometimes get things right and sometimes they get things wrong.

The officers testified that they did not believe they had grounds to arrest the men until the bullet was found in the urinal. At that point, they believed they had reasonable grounds to arrest the men because the truck was found in the area of the firearms incident, it matched the general description of the suspect vehicle, there were two male occupants and they found the bullet in the washroom where the passenger had just been.

The judge found White’s Charter rights under ss. 8, 9 and 10 had been breached while Omeasoo’s rights had been infringed only under ss. 9 and 10 because he did not have standing to challenge the lawfulness of the search of the truck as its passenger.

In the judge’s view, the men had been detained when the officers initially approached the truck but were not advised of their s. 10 rights (as conceded by Crown). And, even after finding the bullet, the police only had enough to detain the men — not arrest them. He described the connection of the bullet to the firearms incident “tentative at best” and it did not materially change the facts. Rather, its discovery was as “close to being a red herring as it could possibly be, rather than significant new evidence” and was insufficient to provide the necessary grounds for arrest. The judge found the initial s. 10 breach tainted all that followed even though the men were advised of their s. 10 rights on arrest. Since the men had been unlawfully arrested, the search of the truck was unreasonable as was the search of Omeasoo’s person. All of the evidence found in the truck and on Omeasoo was excluded under s. 24(2). The charges were dismissed.

The Crown challenged the lower court’s ruling to the Manitoba Court of Appeal

arguing, among other things, that the trial judge got it wrong in holding that the arrest of the men and the subsequent searches breached the Charter. Moreover, if the arrest was lawful, the Crown asserted that the s. 10(b) breach would not result in the exclusion of evidence.

The men, on the other hand, contended (in part) that the trial judge got it right in applying the law to the facts and the admission of the evidence would bring the administration of justice into disrepute.

The arrests

In determining whether the police had the power to arrest in this case, Justice Lemaistre stated:

Section 495(1)(a) of the Code provides the police with the power to arrest a person whom they believe, on reasonable grounds, has committed an indictable offence without the need to obtain a warrant. The requirement of reasonable grounds involves a subjective belief that is objectively grounded. In other words, a reasonable person, standing in the shoes of the officer would believe reasonable grounds to arrest exist. The police do not need to establish a prima facie case for conviction before making the arrest.

When determining whether an officer’s subjective belief of the existence of reasonable grounds is objectively reasonable, a court must not assess the various factors relied upon by the officer in isolation. The totality of the circumstances known to the officer at the time must be taken into account. The officer is entitled to rely on information received from third parties, reject information he or she believes is unreliable and draw inferences …

Establishing a reasonable belief is not a high or overly onerous standard to meet. [references omitted, paras. 29-31]

In this case, the Court of Appeal held the trial judge erred in determining whether the officers’ subjective beliefs that they had reasonable grounds to arrest the men after finding the bullet were objectively reasonable.

“In my view, the trial judge failed to assess the totality of the circumstances when considering the reasonableness of the officers’ beliefs that there were grounds to arrest,” Lemaistre said. “He dealt with the evidence in a piecemeal fashion and failed to consider the cumulative effect of all of the facts and circumstances known to the officers at the time of the arrest on a holistic basis to determine whether, objectively, they had reasonable grounds to believe an offence had been committed.” And he also failed “to consider the facts and circumstances from the perspective of the officers.”

Lemaistre continued:

In my view, the officers’ beliefs that the males in the truck had been involved in a firearms incident 26 minutes prior to their arrest was objectively reasonable in light of the constellation of factors known to them at the time of the arrest. This is so particularly in light of the evidence which established that [one officer] could not differentiate between a Chevrolet Silverado and a Dodge Ram; it did not occur to [the other officer] that the passenger was Indigenous; and, in both of the officers’ experience, details provided by 911 callers can be wrong. In my view, the trial judge erred in finding that the arrests breached section 9 of the Charter. [para. 43]

The searches

Under the common law, “the police are permitted to conduct warrantless searches incident to arrest provided that the arrest is lawful, the search is conducted for a legitimate purpose related to the arrest and the search is reasonably conducted.” Since the officers had reasonable grounds to arrest the men for the firearms incident, the searches of the truck and Omeasoo were well within the scope of this common law power.

“The searches were connected to the offence and conducted in order to protect the police and the public and to discover and preserve evidence,” Lemaistre said. And there was no suggestion that the manner in which the searches were conducted was unreasonable. The warrantless searches did not breach s. 8 of the Charter.

Admissibility

Although the Crown conceded a s. 10 Charter breach when the officers initially approached the truck and detained the men but did not advise them of their s. 10 rights, the Court of Appeal found the evidence was admissible. The seriousness of the Charter-infringing conduct and its impact on the Charter-protected interests of the men did not favour exclusion. Moreover, society had a strong interest in the adjudication of this case on its merits. The charges were serious, and the evidence was reliable and essential to the Crown’s case. The Crown’s appeal was allowed and a new trial was ordered.

 

 

Mike Novakowski is Blue Line’s case law columnist. He can be contacted at caselaw@blueline.ca.