Case Name:
R. v. Ebagua
Between
Her Majesty the Queen, and
Ebagua, Junior
[2004] O.J. No. 5982
Brampton Court File No. 02-5695
Ontario Court of Justice
I.B. Cowan J.
Heard: May 26, 2004.
Judgment: September 8, 2004.
(154 paras.)
Criminal law -- Offences -- Resistance or obstruction of a public officer or peace officer -- Arresting officers looking out for drug and prostitution related activities in area testified they saw accused drive aggressively into motel parking lot -- One officer said they investigated because he was driving dangerously, and the other because he may have been impaired -- After refusing to identify himself, accused allegedly resisted arrest -- Were unbelievable elements in accused's testimony and that of his witnesses, but were also many gaps in recollection of officers -- Accused found not guilty -- Despite disbelieving defence witnesses, trial judge not satisfied officers told real reason for investigation -- Crown failed to establish beyond reasonable doubt officers had grounds to ask for accused's identification -- Arrest was unlawful.
Criminal law -- Evidence -- Burden and standard of proof -- Standard of proof -- Beyond a reasonable doubt -- Arresting officers looking out for drug and prostitution related activities in area testified they saw accused drive aggressively into motel parking lot -- One officer said they investigated because he was driving dangerously, and the other because he may have been impaired -- After refusing to identify himself, accused allegedly resisted arrest -- Were unbelievable elements in accused's testimony and that of his witnesses, but were also many gaps in recollection of officers -- Accused found not guilty -- Despite disbelieving defence witnesses, trial judge not satisfied officers told real reason for investigation -- Crown failed to establish beyond reasonable doubt officers had grounds to ask for accused's identification -- Arrest was unlawful.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, s. 8, s. 24(2)
Controlled Drugs and Substances Act,
Criminal Code,
Highway Traffic Act,
Police Act,
Counsel:
Mr. A. Cornelius, Counsel for the Crown
Mr. A. Hamalengwa, Counsel for the Defendant
JUDGMENT
1 I.B. COWAN J.:-- Junior Ebagua is charged with two counts of assaulting police officers in the execution of their duty; one count of breach of probation by not keeping the peace and being of good behaviour contrary to the Criminal Code; and one count of possession of hashish contrary to the Controlled Drugs and Substances Act.
Summary
2 On May 7, 2002 the police ware patrolling on foot in the area of the Super 5 Motel in Mississauga. The police allege that they saw a motor vehicle driven by Mr. Ebagua pull into the parking lot at high rate of speed and proceed, in what they felt was an aggressive manner, to a parking spot.
3 They allege that they approached the driver who was Mr. Ebagua and asked him for his driver's licence and documents. They say he refused and became aggressive, pushing one officer with his hands and punching another officer during his arrest.
4 They also allege that after the arrest they searched him and found hashish on his person.
5 Mr. Ebagua and his witness tell a different story. He relates that he had already arrived at the motel and was in a room with a girlfriend and her female friend when he discovered that the friend of his girlfriend had gone outside and moved his car.
6 He relates that he went outside only to move the car back into its original space when the police approached and asked him for his licence and ownership documents.
7 He related that he provided these to the police and got out of the car to talk to them. He alleges that they grabbed his wallet and threw him to the floor. His version is that he did nothing to provoke them and he denies that he had any drugs on him, as he doesn't use illicit narcotics.
The Police Evidence
8 Constable Vincent Ippolito of the Peel Regional Police was on foot patrol at about 11:30 p.m. on May 7, 2002 with Constable Rawlings. He testified that he saw a motor vehicle proceed from Dundas Street into the parking lot of the motel, being driven in a manner that he felt was aggressive. He thought it was driving too fast for a parking lot.
9 When it came to a stop, he approached the driver who was Ebagua, and he asked for his licence and documents, that Mr. Ebagua exited the vehicle and in the opinion of the officer was confrontational, waving his hands in an aggressive manner.
10 Ippolito said that he asked him several times to identify himself and why he was driving aggressively. Ebagua responded that he did not need to provide his documents and wasn't going to.
11 Eventually Ebagua told him "fuck you, I'm not telling you shit," and "go fuck off."
12 Ippolito felt that he needed assistance and asked for an additional unit to attend. He said that he also told Ebagua to calm down and stop yelling, but he refused and continued to be aggressive.
13 Ippolito noted that there were two females nearby who were yelling at Ebagua to give his identification to the police.
14 At this time Constable Walton attended the scene and Ippolito advised him of the situation and told the accused that he was under arrest for failing to identify himself.
15 Ippolito testified that Ebagua said, "fuck you" and struck him with both hands on the upper chest area with two closed fists. Ippolito stepped back and then grabbed Ebagua and put him over Walton's vehicle. He said that Ebagua continued to be violent.
16 Walton was able to cuff his right hand but Ebagua punched Rawlings in the right thigh with his left fist. He was again told to calm down but resisted and was finally taken down to the ground, chest first.
17 At this time, Ippolito saw Walton search Ebagua and retrieve a quantity of narcotic from his coat and hand it to Ippolito.
18 Ippolito packaged the substance and submitted it to Health and Welfare Canada. A Certificate of Analysis was received back and entered as an exhibit showing the substance to be hashish.
19 Ippolito testified that this motel area had been a problem area for a number of years and as a result was subjected to intensive police patrols. He denied punching or kicking Ebagua and stated that the only reason Ebagua was taken to the ground was for his safety and the safety of the officers.
20 In cross-examination, Mr. Hamalengwa suggested to Ippolito that in the two weeks, before this incident, he had stopped a car driven by Ebagua's girlfriend in which Ebagua was a passenger. He denied this.
21 Ippolito told counsel that he first saw Ebagua exit from Dundas Street and then proceed north through the parking lot.
22 Hamalengwa suggested that he first saw the car driven by a lady backing up and he never saw him drive in. He denied this.
23 Defence entered the cell record for the admission of Mr. Ebagua in which indicated he made no complaint of, or showed signs of injury. Ippolito also identified photos of a car, marked as Exhibits 2, 3 and 4 as the car driven by Ebagua that day. He said it was parked eventually in the same direction as shown in the photo.
24 Ippolito acknowledged that he had never tried to contact either of the women to see if they could be witnesses, as he believed there was sufficient evidence to bring the case to court.
25 Ippolito denied that he ever searched or saw any other officers search the room.
26 Mr. Hamalengwa suggested to him that he had Ebagua's wallet and that, in it were Ebagua's probation papers. Ippolito said he didn't recall having it.
27 He was asked how then he knew Ebagua's name and he responded that he thought Ebagua gave it to him verbally but he was not sure.
28 Mr. Hamalengwa suggested to him that he arrested Ebagua because the officer found him with two young white females.
29 Ippolito denied that and denied that he ever asked the defendant, if they were a ménage a trois.
30 Ippolito told the Court that he never had the bag containing the hashish fingerprinted. He said that he had made hundreds of arrests and had never fingerprinted a bag.
31 He also acknowledged that he did not show the bag to the defendant or ask any questions about it.
32 Constable Nichelle Rawlings was, at the time, with Peel Regional Police and is now with York Regional Police.
33 She testified that on May 7, 2002 at around 11:30 p.m. she and Constable Ippolito were on foot patrol near the Super 5 Motel.
34 She saw a motor vehicle travelling eastbound pull into the parking lot and proceed in what she perceived to be an aggressive manner, faster than usual. She said it braked heavily while pulling into a parking spot.
35 In her mind she wanted to check out the driver to see if he was impaired by alcohol. She stood by while Ippolito asked the defendant for his driving documents. She recounted that the defendant was abusive and uncooperative and said, "fuck you, I am not telling you shit ... fuck off."
36 She also observed two females about 10 to 15 feet away who appeared to be friends of Ebagua.
37 The officers requested that another vehicle attend, as they had parked her car some distance away. She said that Ebagua did not want to identify himself.
38 They notified him that he was under arrest for fail to identify himself under the Highway Traffic Act. She observed Ebagua strike Ippolito in the upper chest with closed fists. Ippolito lost his balance slightly and Cst. Walton arrived on scene. She did not recall whether he arrived before or after Ippolito was struck.
39 She testified that, together, the officers put Ebagua over the hood of the car, at which time he punched her in her leg with his right fist.
40 They then took him to the ground where he continued to resist.
41 She observed Ippolito and Walton search him and find a clear baggie containing what appeared to be hashish.
42 He was placed under arrest at 11:45 p.m. She estimated that from start to finish the events lasted about 15 minutes.
43 She later served Ebagua with a Notice of Intent to produce certified copies of probation papers at trial and informed him of the further charges of breach of probation.
44 In cross-examination, she told counsel that they eventually obtained Ebagua's name from the contents of his wallet and ran his name on the CPIC system.
45 She denied that he ever indicated his name to the officers. She could not recall whether he mentioned something about a woman, who had just driven a car but she maintained that he was the only person in the car. She did not recall whether she followed up investigating the two women who were at the scene. She did not search the motel room and did not know if anyone searched the car.
46 She did not recall whether she asked Ashley Goodfellow if she had sex with Ebagua.
47 She had no recollection whether she or anyone showed the drug or the baggy or if anything else was found on him.
48 She had no recollection whether she attended court on the day of trial for any of the Highway Traffic Act tickets.
49 Constable Walton was a member of Peel Police at the time and is now a member of the Ontario Provincial police.
50 At about 11:41 p.m. he overheard a call for assistance at the Super 5 Motel.
51 As he approached he could see an officer standing in the parking lot dealing with a male person who was screaming. From the conversation it appeared to him that there was an issue regarding the individual's identity and he was refusing to identify himself.
52 Walton spoke with Ippolito and received information that he had stopped the vehicle and the defendant was refusing to identify himself.
53 Walton cautioned Ebagua about identifying himself, and that it was an arrestable offence.
54 He said Ebagua continued to refuse to identify himself. Walton saw him step forward and, although he did not see contact, he saw the reaction of Ippolito's body going back.
55 He assisted in taking hold of Ebagua and pushing him against the vehicle. Walton was only able to get one handcuff on and finally took Ebagua to the ground.
56 Walton searched Ebagua and found a zip lock baggie what appeared to be hashish. He handed this to Ippolito.
57 He did not see any injuries on Ebagua apart from an old scar.
58 In cross-examination, Walton was asked if he removed Ebagua's pants. He responded that he did at the division, but not at the scene. All he did was a frisk search.
59 He denied that he attended the scene with any preconceived ideas and that this was the reason he asked Ippolito what had occurred.
60 Det. Louis Malbeuf is a York Regional police officer who had prior dealings with Ebagua. He presented documents pertaining to previous fraud-related charges, including a certified copy of an information and probation order.
61 Cst. Matthew Small served the notice of intention relating to the drug charge at the office of Mr. Hamalengwa. The Certificate of Analysis was admitted by the defence.
The Defence Evidence
62 Despite the fact that there was an order excluding witnesses, the Defence chose to call Ashley Goodfellow before Mr. Ebagua testified.
63 She testified that she was his common law partner and has known him for about three years.
64 She described how, on this particular evening, she was at the motel with Ebagua and Kimberley Marie watching television.
65 They arrived there between 6 and 7 p.m. and the events occurred a couple of hours later.
66 She, Ashley, was looking for a lighter in Ebagua's pants, to light a cigarette and Marie took the keys to the car and reversed the car to the back wall.
67 She described how, when she was looking for the lighter, she also found his wallet but there were no other items in his pockets.
68 She said that at this time, Junior was in the washroom and after Marie took the keys, she called out to Ebagua that she was in the car. She saw Ebagua go out and get into the car, and move it back to the parking spot, a distance of a few feet.
69 Before this occurred, Ebagua had not left the room since he arrived.
70 When she looked out of the motel room, she saw Ebagua with three police officers, two men and one woman. She said she could not hear them talking but recounted how the police asked him for his identification and she heard him say words to the effect of "why ask him when they had never asked for Marie's identification".
71 She said that she and Marie told him to give his wallet to the police and he reached for his back pocket to do that. She observed the police to be aggressive and louder than him and saw them take him to the ground and remove his pants, leaving him only in his undergarments and tee shirt. She testified that during this time he was not kicking or hitting them, or abusing them in any way.
72 Afterwards the police questioned her and her friend as to why two white girls were with an older, black guy and asked her if they had a "threesome" with him. She responded that they had never had sex with Junior.
73 She recounted how the female and a male officer came into the motel room and turned up the bed and searched the garbage and the room. They also obtained telephone numbers and told her parents about the incident.
74 She said that the officer with the ponytail had stopped them a couple of weeks before this incident, when she was driving, and had asked Ebagua to come out of the car.
75 In cross-examination she told the Crown that they had gone to the motel just to watch TV and then they were going to go home. Her friend Marie had been introduced to Ebagua on one prior occasion.
76 She said she and Marie met up that day and called Ebagua to get together around 5 p.m. They had previously been smoking cigarettes using her matches to light them. She was a regular smoker and the cigarettes belonged to her and Marie. Ebagua did not have his own cigarettes.
77 They arrived at the motel around 6 or 7 p.m. After their arrival she wanted another cigarette and at some point realized that they were out of matches. So Marie went to look in the car to get matches and took the keys.
78 Ashley described how she searched Ebagua's pants for matches, before Marie left, as he was in the washroom urinating and his pants were with him.
79 Then she corrected her story and described how the pants were in the bedroom. She said she took his pants so that she could search them. They had been in the washroom and she removed them into the bedroom, as he was about to take a shower.
80 Due to the inconsistencies in her story the Crown asked her if the reason that she could not answer the question was that all of this had never happened. Her response was, "If you want to say that."
81 She also told the Crown that she watched her friend from the doorway move the car and shouted to Ebagua about what Marie was doing. She then said that she went into the bathroom and told Junior the same news.
82 Goodfellow said that she was looking for a lighter in Ebagua's pockets even though she had not seen one earlier.
83 The Crown asked her where Marie got the keys. She responded that they were somewhere in the motel room, but she did not recall. She did not remonstrate with Marie or try to stop her. Later she asked Marie in the car, why she took the keys and did not receive a response.
84 She reiterated that she could not hear what the police were saying, but could hear Junior. Then she recounted that she heard the police ask him for his identity.
85 The Crown suggested that she could hear Ebagua, as he was speaking louder than the officers. She denied that, saying her friend was standing beside her and talking. She remembered that, after they told him to provide his identification.
86 He reached for his pocket to pull out his wallet then another police car came and they threw him to the ground "in a mean way". She did not know what precipitated that.
87 She also observed them pull off his pants. While he was on the ground, they kicked him. Afterwards, she observed scratches on Ebagua.
88 She has lost contact with Marie since that date, although at the time they went to the same school.
89 In re-examination, she told counsel that the whole incident took about 30 minutes.
90 Junior Osas Ebagua is 40 years of age and employed as a taxi driver. He also works for a traffic courts' service.
91 He denied that he smoked hashish, but used only cigarettes.
92 On May 7, he remembered being at the Motel 5 with two women watching television and "hanging out". His intention was to watch basketball and not to be involved in criminal offences.
93 Although he has TV at home, he was not comfortable bringing Marie to his house.
94 He described the events after their arrival at the motel. He said they smoked cigarettes and then had chicken wings and a few soda pop.
95 He said that Ashley Goodfellow and her friend had matches and he carried a lighter. On that particular day, his cigarette lighter was probably in the car as it was not in his pocket.
96 He said his clothes that day consisted of jeans and a tee shirt.
97 He recounted that his meeting with the police occurred when he rushed out of the hotel room after Ashley had told him Marie was moving the car and had almost backed it into the wall. He ran out and went to the driver's side of the car wearing his tee shirt and pants.
98 He had been in the washroom using the sink and was about to jump into the shower.
99 He told Marie to get out of the car so he could park it properly. He remembered that he had arrived at the motel between 6 and 7 p.m and had parked there for a couple of hours.
100 When he came out, there were already two police officers there, a man and a woman, but there was nothing to draw his attention to them.
101 He moved the car back to its original spot, a total of about eight feet. As soon as he alighted from the car, the officers asked for his driver's licence.
102 He responded that they had seen the young lady drive the car but had not asked her for her licence. He said he had done nothing wrong in his driving and felt that they were picking on him.
103 He recounted that Ippolito had done this once before, when Ashley and he had come to this motel. Ashley had been driving, he was a passenger and they asked him for his driver's licence.
104 He testified that he heard Ashley and Marie say that these were Peel police officers and to give them his wallet. He put his hand in his back pocket and as he pulled out his wallet, he was grabbed.
105 The other police cruiser arrived at between 10 and 11 p.m.
106 The new officer, he said, got out and came over to the discussion. At this point, Walton took his wallet and Walton and Ippolito grabbed him and threw him to the ground.
107 He said that he did nothing to provoke this and had only inquired as to why they did not ask Marie for her licence. He denied ever striking them.
108 At this point, one of the officers removed Ebagua's pants and they handcuffed him.
109 He said that he was charged with three traffic offences including not having his licence and insurance on him although these were in his wallet. He also said that his probation papers were in his wallet and that they had observed them.
110 He eventually went to Provincial Offences Court to fight the charges but the officers did not show up and the Crown withdrew the charges.
111 He produced a picture that was taken of him when he was formally charged at the police station. This was entered as an exhibit. He also took pictures of the car and himself.
112 After he was released he went to a walk-in clinic and then to St. Joseph's hospital. He received Tylenol from the hospital.
113 Ebagua stated that the glasses he was wearing that day were broken and he produced them as an exhibit. He said they fell off his face as he was being rough handled and it was not until the next day that he found the glasses with the lenses crushed as a car may have gone over them.
114 He told his counsel that no one ever showed him a bag with any alleged drug in it. He had nothing to drink that night by way of alcohol.
115 He admitted his criminal record as being a 1993 conviction that was related to fraud.
116 In cross-examination, he admitted the details of his prior criminal record as being March 24, 1992, personation with intent; November 3, 1992 fraud under and personation and fraud over, January 7, 1993 fraud under and obstruct peace officer.
117 He testified that he lived alone in May 2002 in an apartment on Kipling Avenue, which was furnished with a television.
118 In May of 2002, he was dating Ashley Goodfellow and had been for a couple of months. He said that on this day Ashley called him around 5 p.m. and he picked up her and her friend Marie. They discussed the fact that he wanted to watch basketball. He did not go to his residence as he may not have had cable and he was not comfortable with taking her girlfriend to his house. In addition, someone could have been at his house that day or his house could have been messy. He could not remember.
119 He recalled that he could have been smoking, but he did not have cigarettes with him. Regardless, he always carried a lighter. On the day of the incident it was either in his pocket or in the car.
120 He said he chose this particular motel because of the price. He usually looked at the signboard outside and selected the motel based on the advertised price.
121 When they arrived at the motel he checked in, producing his driver's licence and credit card, and then drove to Room 110 and opened the door.
122 He took his car keys into the room and left them on top of a table there.
123 Arriving between 6 and 7 p.m., his intention was to watch basketball and to leave as soon as the game was over.
124 When he turned on the TV the game was on and he recalled that one of the teams was San Antonio. He said that they ate the chicken wings, which he had brought with him, and they all were smoking cigarettes.
125 He went into the washroom for between two and five minutes to urinate and then took off his pants and hung them up and tried to get into the shower. He then heard someone, whom he found out to be Ashley, come into the washroom and go through his pants. He knew this because he had heard a "scuffling sound."
126 The only contents of his pants at this time was his wallet. He then saw that she went out and closed the door. The next thing he heard was Ashley saying "Junior, Anne Marie is moving the car."
127 At no time did she ever say, "Where is your lighter"? He said that he jumped into his pants and came outside and saw what was going on.
128 The car was almost backed up to the wall and Marie was sitting in the driver's seat. He walked up and said, "Please can you alight from the car". He said that the police were right there looking at the car. He got in and moved it and almost immediately, they came to him, and asked him for his driver's licence.
129 Ebagua acknowledged that, with his experience, he knew that he was legally compelled to provide his driver's licence but that he said he felt that he was being treated as a second-class citizen because of his colour. He said that as he reached for his wallet, they grabbed him but he did not struggle.
The Defence Argument
130 Mr. Hamalengwa argued that there are many inconsistencies in the Crown evidence and the police officers had many gaps in their recollection of the events.
131 He said that the police say that the driving and arrest was around 11:30 p.m., yet the evidence is that they had been at the hotel from 6:30 to 7 p.m. and that this was not later than 9:30 p.m.
132 He also argued that the police had a predisposition by being in the area to catch criminals and that when they observed the accused with the two women, they assumed that they were there for illegal purposes.
133 The Crown argued that the officers presented their evidence in a straightforward manner that was consistent throughout. He also argued that the evidence of the two defence witnesses was incredible and, that particularly Ashley Goodfellow, was evasive and did not stand up, under cross-examination.
134 He also asked the Court to look at the manner of testimony of the defendant. He argued that Ebagua spent a lot of time trying to anticipate questions rather than being straightforward in answering them.
General Principles
135 As in every case, the onus is upon the Crown to prove all the elements of the offences beyond a reasonable doubt. As I have heard from Mr. Ebagua, and his witness, I must apply the principles articulated in R. v. W.(D.), [1991] 1 S.C.R. 742, those being, that if I believe him or his witness, or am left in doubt from their evidence, or the evidence as a whole then I must acquit him.
Analysis
136 It is apparent from the wide discrepancy in the evidence that I have heard, that either the police or the accused and his witness are not telling the truth, in whole or in part. Perhaps both.
137 I do not presume the police witnesses to have greater credibility than the defendant and his witness, due to their position as police officers. I can however infer, if I choose, that Mr. Ebagua, because of his prior convictions related to crimes of dishonesty, is not as credible a witness as a person who might come before me without that record.
When Did This Incident Occur?
138 The police evidence is that it occurred around 11:30 p.m. The evidence of the defence is that it occurred no later than 9:30 p.m. to 10:00 p.m. and took no more than half an hour.
139 The only relatively independent evidence relating to the time is the time noted on the prisoner log marked as ex. 1 that shows Ebagua being booked at 00:52 hours or 12:52 a.m. This log, created and kept under the authority of the Police Act, is more consistent with the events taking place at the time indicated by the police. The officer noting the time would have no way of knowing that time would be controversial in this case.
Was Ebagua Driving A Motor Vehicle Into The Parking Lot When He Was Investigated And Why Was He Investigated?
140 Two officers testified under oath that they saw him drive into the parking lot at a higher than normal rate of speed. Ippolito said he investigated, and asked Ebagua for his licence, as he was driving dangerously or erratically. His partner said they investigated because he might have been impaired.
141 The defence evidence is that he did not drive anywhere after he arrived there around 6:00-7:00 p.m. and that he was only out moving the car about 8 feet.
142 The defence evidence is that many questions were asked of Ebagua and the girls about whether they were at the motel for a sexual relationship and the room was searched after the arrest.
143 The officers' evidence was replete with memory lapses for events they should have recalled.
144 The officers were in the area on foot patrol of the motel area to be on the lookout for drug, prostitution and crime related investigations.
145 They saw a middle age black man with two younger white girls in or around a motel room. It was much more likely that they wanted to investigate their relationship than to investigate the driver of a car.
146 The story that Ebagua aud his witness told of why they were at the motel is highly suspect. Why would a man who had television at home want to go to a motel to watch a basketball game with his girlfriend and a girl he barely knew?
147 The account told by Goodfellow of her search for a lighter and her girlfriend bolting with the keys is incredible. If it happened, how did Ebagua have time to dry off, get on his shirt and trousers and stop the other woman, who had only driven 8 feet, from driving away?
148 Given the inconsistencies in the defence evidence I do not believe their stories as to when the events occurred or how it occurred. But this does not end the matter.
149 I am not satisfied the police told me the real reason for the investigation. The much more probable reason, as stated earlier, would give rise to whether they had the articulable cause to investigate Ebagua.
150 If they saw him drive into the parking lot from a street, their powers to ask for a driver's licence and identity flowed from the Highway Traffic Act.
151 If they saw him moving a car within the parking lot, their powers might depend on whether the area the car was in fell within the definition of a "highway". They had no reasonable and probable grounds to believe he was impaired by alcohol or had been drinking.
152 The Crown has not satisfied me beyond a reasonable doubt that they had the grounds to ask for Ebagua's identification and what the authority to do so, was.
153 As a result the Crown has not satisfied me beyond a reasonable doubt that any arrest that took place, was lawful. Given this, I am not satisfied that the search was incident to arrest and I am excluding the evidence. On my own motion, I find a s. 8 breach under the Charter of Rights and the evidence of the hash being found is excluded as a remedy under section 24(2).
154 The charges are dismissed.
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