Case Name:

R. v. Johnson

 

 

Between

Her Majesty the Queen, and

Tarik Johnson

 

[2002] O.J. No. 5466

 

 

 Ontario Court of Justice

 Toronto, Ontario

 

Feldman J.

 

Oral judgment: September 25, 2002.

 

(29 paras.)

 

Charge: Threaten bodily harm

 

Counsel:

Rosemarie Juginovic, for the Crown.

Munyonzwe Hamalengwa, for the accused.

 

 

 

1     FELDMAN J. (orally):-- Tarik Johnson entered a not guilty plea to threatening John Gallagher with bodily harm. It is alleged that Mr. Johnson pointed what appeared to the complainant - an off-duty police officer - to be a gun at him while both were driving in their respective motor vehicles. This is said to have occurred after the complainant activated his brake lights to catch the attention of the accused who was purportedly tailgating him. Mr. Johnson was subsequently followed by the complainant and other officers and arrested. No gun was found, although a knife was discovered in the defendant's car following an arrest and search. The Crown adduced a potentially incriminating utterance made following the arrest and prior to Mr. Johnson being provided his Charter right to counsel. I earlier ruled that utterance to be voluntary.

2     Mr. Hamalengwa, for the accused, submits that the arrest was made arbitrarily, without reasonable and probable grounds and as a result of racial profiling, contrary to ss. 7, 9 and 15 of the Canadian Charter of Rights and Freedoms. In addition, he submits that any and all utterances were elicited in breach of Charter s. 10(b), the admission of which would bring the administration of justice into disrepute, contrary to s. 24(2). Finally, he argues that the discovery of the knife was occasioned by a breach of Charter s. 8, that it was based upon an involuntary and uninformed consent, and that it ought to be similarly excluded.

3     Ms. Juginovic, for the Crown, concedes that systemic racism and racial profiling by the police are an unfortunate reality in our society, and are issues to be considered by the Court on a case by case basis. She submits, however, that there is no evidence to support that allegation here on a balance of probabilities. She suggests, rather, that the complainant acted honestly, if mistakenly, and in good faith in initiating an investigation; that there is ample objective evidence to find that the arrest was made on the basis of reasonable and probable grounds, and that the arresting officer had subjective grounds for doing so.

4     In relation to the admissibility of Mr. Johnson's statements, in particular, his utterance to Police Constable Vanderven that he was only pointing his finger at the complainant, Ms. Juginovic submits that the Charter requirement that an arrestee be provided his right to counsel without delay does not mean immediately, and must be seen in the context of investigative urgency or necessity. She suggests that the failure here to immediately inform the accused of this right was explained by police concern with their own and public safety in light of the gun allegations. She concedes, however, that should the Court find a s. 10(b) breach, the utterance reflects conscripted evidence and may serve to undermine the accused's fair trial interests, as contemplated by s. 24(2).

5     Finally, the Crown submits that even if Mr. Johnson's consent to have his car searched was uninformed, the police were entitled to search it as an incident of his arrest.

THE EVIDENCE

6     Sergeant Gallagher was driving north of Toronto on March 27, 2001 when he noticed Mr. Johnson in his vehicle, inattentive and tailgating him closely for about a quarter mile. The complainant activated his brake lights, hoping to attract the driver's attention, but without initial success. He testified that when the accused did look up, there was eye contact, and Mr. Johnson leaned over to the right of the dashboard and gestured while holding something in his hand. It appeared to be metallic and the size of a revolver, although he could not make out its shape. The first and only thing which came to his mind was that it was a weapon, and he felt threatened. Sergeant Gallagher reported the occurrence to 911 as his being followed by a person he believed had a gun, but did not tell the dispatcher he felt threatened. He denied the suggestion that he felt threatened solely because the fidgeting accused was a young black man whom he perceived, as with all such young men of colour, to be fond of and likely using a gun.

7     At an intersection, the accused headed off in a different direction, as a result of which the officer felt more in control. He followed Mr. Johnson in order to help any officers attending to his call. He came across Police Constable Vanderven, who was investigating, and offered his assistance. The accused, who was shortly thereafter seen leaving his parked vehicle, was approached and arrested. Sergeant Gallagher said he participated but held back, not speaking to the accused. He testified that Mr. Johnson said to him, "I didn't know you were a cop, man." He did hot write this in his notes. He insisted he said nothing to the accused to elicit such a response. In contrast, the arresting officer, Police Constable Larmer, vaguely recalls Sergeant Gallagher talking to the accused after the arrest and during the search of his car. Sergeant Gallagher gave evidence he believed it possible the accused could have gotten rid of the gun, although it was unclear the accused was even aware he was being followed by the police.

8     Police Constable Michael Vanderven responded to a radio call concerning someone pointing a gun, although in his testimony Sergeant Gallagher does not indicate that he saw the driver, whom he cannot identify, point a gun, or even a finger. The dispatcher provided the officer a description only of a car and licence plate, the same information he subsequently received from Sergeant Gallagher when he met him while searching for the car. He said he was never provided a description of the driver.

9     Police Constable Vanderven observed Mr. Johnson walking away from a car which fit the description. He went over and stopped him, asking him, at 2:28 p.m., where he was coming from and received an answer. The officer said that, at this point, because of the possibility that a gun was involved, police safety was his focus. He recalled that two other police cars had arrived, and that Police Constable Larmer was present. He arrested the accused for threatening, also at 2:28 p.m. He testified that the accused was handcuffed on arrest. He did not hear Police Constable Larmer advise the accused of his right to consult counsel without delay. Later in his testimony he gave evidence that Mr. Johnson was not handcuffed until after the search of his car, and after having been charged with breach of probation. Were this the case, it would tend to diminish the force or logic of Police Constable Vanderven's subsequent evidence that he did not "twig" to Police Constable Larmer's failure to provide the accused his right to consult counsel because of his concern for police and public safety and focus on quickly securing the scene. Police Constable Larmer recalls handcuffing the accused at the time of the initial arrest.

10     Police Constable Vanderven recalls that he continued questioning Mr. Johnson, telling him he had received information that he had apparently pointed a gun at an occupant of a vehicle driving by. He said the accused responded, "Oh man, that was just a finger, man." The officer told the Court that Mr. Johnson denied having a gun and offered his key in order that they might search the car for any gun. This was subsequently denied by Mr. Johnson who, during a Charter voir dire, testified that the police found his car keys during a search of him and proceeded to then search his car without his consent. He later said the police asked him if he minded their searching his car, but felt he had no choice to refuse, an inconsistency which did not serve to enhance his credibility.

11     Following his discovery of the knife, Police Constable Larmer arrested Mr. Johnson for breach of probation. He was still not provided his right to counsel, although Police Constable Vanderven recalled being aware during the search that the accused had not yet been apprised of and afforded an opportunity to consider the option of his fundamental right to answer police questions or to remain silent.

12     Police Constable Larmer testified that he received a high priority radio call concerning a driver pointing a firearm at an off-duty police officer. Unlike the other witnesses, he claimed to have received a description of both the driver and the car. He went over to Mr. Johnson, who was in the company of Police Constable Vanderven, and who told him the accused was the occupant of the vehicle fitting the dispatcher's description. He immediately placed the defendant under arrest, handcuffed him and moved him away from the car for officer safety reasons. He did not provide him his right to counsel. He recalls his colleague asking if the accused minded his car being searched.

13     Police Constables Vanderven and Baker searched the accused's vehicle and found a knife. Approximately seven minutes had passed since the time of the arrest. Police Constable Larmer arrested Mr. Johnson for possession of a weapon dangerous to the public peace and breach of probation. He was then provided his right to counsel after being placed in the police cruiser.

14     The accused gave evidence on the Charter voir dire. He testified that Police Constable Vanderven grabbed him by the arm and asked him where he was coming from, after which Police Constable Larmer took hold of him and moved him over to his police vehicle where he was handcuffed. All the while he said he was being peppered with questions, including some from Sergeant Gallagher, who had also arrived, and all of which questions he tried to answer. He denies being told he was under arrest when handcuffed, nor was he told of his right to counsel or cautioned. He said his car keys were taken from him when he was searched. He gave evidence that he was not asked for permission to search his car, nor did he give it. He later said he was asked if he minded his car being searched, but could not recall his answer, as he was being bombarded with questions. He felt he really had no choice in the matter. He said he was asked more questions after the search, but still was not advised of his right to counsel. He recalls Sergeant Gallagher asking him if he knew who the officer was and telling him that he was in trouble. He said Gallagher stood out as the loudest. It is unlikely that the off-duty complainant would be permitted by the investigating officers to be involved in the way indicated by the accused, although it is possible, given Police Constable Larmer's evidence, that Sergeant Gallagher said something to Mr. Johnson.

15     Mr. Johnson's inconsistent evidence about whether or not his consent to search was sought, his description of being peppered with questions by three officers of whom Sergeant Gallagher was the loudest, and his testimony that he was handcuffed without being arrested, evidence which I do not accept, all tend to weigh against his credibility.

WAS THE ARREST OF THE ACCUSED MADE ON THE BASIS OF RACIAL PROFILING AND WITHOUT REASONABLE AND PROBABLE GROUNDS?

16     Counsel for the accused submits that the reason for the manner in which the accused was stopped and subsequently investigated reflected at least a subconscious discriminatory police mindset driven by a negative stereotyping of young Canadian black men as inherently dangerous and fond of using guns. He urges that there were here no reasonable and probable grounds to arrest Mr. Johnson. Rather, he suggests that Sergeant Gallagher, even if in good faith, responded to a young black person following him too closely and merely suspected him of having a gun in what was known to be a high crime area. Mr. Hamalengwa submits, correctly, that where such discrimination is alleged, the Court must carefully scrutinize the evidence to determine whether or not there is accepted and reliable evidence "proving inferentially the subconscious racial stereotyping leading to the arrest," as referred to by Trafford J. R. v. Donavan Brown, 57 O.R. (3d) 615, O.S.C., January 28, 2002.

17     In the course of such an inquiry, I must remain mindful of the statement of Mr. Justice Doherty in R. v. Parks (1994), 84 C.C.C. (3d) 353 at 369 (Ont. C.A.),

 

                    "Racism, and in particular anti-black racism, is part of our community's psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. Blacks are among the primary victims of that evil."

18     Counsel submits that when Sergeant Gallagher looked over and saw a young black man driving poorly and then fidgeting, he overreacted without any factual basis. He suggests that this negative stereotyping resulted in Mr. Johnson being stopped abruptly and arrested without any introductions, handcuffed and questioned without being advised of his right to counsel, questioning which continued during and after what he describes as an illegal search of the accused's vehicle. He submits that the complainant officer's lack of reasonable and probable grounds strengthen the circumstantial inference to the point of probability that the arrest resulted from racial profiling.

19     Ms. Juginovic submits that the evidence does not support a probable finding of racial profiling. Rather, she urges that both objective and subjective reasonable and probable grounds for an arrest exist here. She argues that the manner of the investigation reflected a focus on police and public safety, not racist impulses.

20     In analyzing these questions, I must first resolve issues of credibility and fact finding in relation to the evidence of Sergeant Gallagher. I found the officer's evidence to be straightforward, if understated. His explanation for following the accused after feeling threatened was a reasonable one. He did not describe the driver, only the car to the dispatcher, and later to Police Constable Vanderven. While his recollection of his contact with the accused at the arrest scene was questionable, I accept his version of the events causing him to complain to police dispatch. In contrast to Mr. Hamalengwa's description of the accused's driving as only poor and his movement as merely fidgeting, I find that the driving involved thoughtless and dangerously close tailgating at a significant speed that threatened the complainant's safety. In addition, I accept that this fact, in combination with Mr. Johnson's reaction to the sudden braking, that is, eye contact and a subsequent odd movement away from the steering wheel and gesturing while holding something of a metallic nature in his hand, provides both an objective and subjective basis for reasonable and probable grounds to arrest for threatening.

21     As a result of this finding and upon a consideration of all the evidence, I am not satisfied to the requisite standard that the accused's arrest was motivated by racial profiling. The applications under Charter ss. 7, 9 and 15 are denied.

WERE THE ACCUSED'S UTTERANCES OBTAINED IN VIOLATION OF CHARTER SECTION 10(b)?

22     The Crown seeks to adduce into evidence Mr. Johnson's utterance to Police Constable Vanderven that it was only his finger, not a gun, which was pointed at Sergeant Gallagher. While the timing of the statement in relation to the arrest is not completely clear, I draw the inference on all the evidence, particularly that of Police Constable Larmer, that Mr. Johnson was handcuffed and under arrest at the time he made it, that is, within the very minute he was first detained by Police Constable Vanderven.

23     Mr. Hamalengwa submits that this conscripted evidence was obtained in violation of s. 10(b) and ought to be excluded. The police position was that it was first essential to secure the scene immediately upon arrest in order to ensure police and public safety. Ms. Juginovic submits that the police did not breach Charter values in failing to immediately inform the accused upon arrest of his right to counsel, given a situation of urgency and uncertainty. She refers by analogy to R. v. Kelly (1985) 17 C.C.C. (3d) 419 (Ont. C.A.), where the Court held that the accused need not in all cases be informed of this right immediately upon arrest or detention. In that case the accused, who had been drinking, was yelling and screaming. It would have made no sense to engage with the accused at that time. Ms. Juginovic also refers to the dictum of Justice Doherty in R. v. Golub (1997) 117 C.C.C. (3d) 193 (Ont. C.A.) that,

 

                    "Often the officer's decision to arrest must be made quickly, in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information, which is often less than exact or complete ..."

These are sound principles.

24     At the time he was under arrest and handcuffed, Mr. Johnson was under the control of two officers, with one other on-duty and one off-duty officer in close proximity. His car was empty. There was no apparent concern about other suspects. It could not be argued that it was not open to the police to search the accused and his immediate surroundings prior to providing him his s. 10(b) rights.

25     However, it is my view that neither Police Constable Vanderven or Larmer were entitled to ask questions capable of eliciting potentially incriminating answers when Mr. Johnson was at his most vulnerable and uninformed of his right to choose whether or not to answer any questions. I do not accept that the situation was so urgent that neither officer could have provided the accused his right to counsel prior to any questions. In R. v. Elshaw (1991) 67 C.C.C. (3d) 97 (S.C.C.), Justice Iacobucci for the Court indicated that if circumstances of urgency or necessity are to be a mitigating factor in a s. 10(b) violation,

 

                    "... they must go to the need to obtain information right away, prior to advising the suspect of his or her rights to retain and instruct counsel ... the urgency of detention should not be used as an excuse to violate the right to counsel if there is no need to question the accused immediately."

26     In Elshaw, the accused was detained for five minutes and then asked questions to which he gave incriminating answers prior to being informed of his right to retain and instruct counsel. Justice Iacobucci for the Court considered the s. 10(b) violation serious and pointed out at page 125 that,

 

                    "The appellant was denied access to counsel or even the opportunity to take refuge in silence at the very moment when he could have most benefitted from the exercise of these rights ... "

27     The Court held at pages 127-29 that the admission of this kind of evidence would aversely affect the fairness of the trial and bring the administration of justice into disrepute. Even good faith on the part of the officers will not strengthen the case for admission to cure an unfair trial.

28     I find the s. 10(b) violation here unnecessary and serious. It resulted in the obtaining of conscripted evidence which would render the trial unfair and ought not to be admitted into evidence.

WAS THE SEARCH CONDUCTED IN BREACH OF S. 8 OR WAS IT AUTHORIZED AS AN INCIDENT OF ARREST?

29     There can be no doubt but that on the evidence the accused was provided neither with an opportunity nor the information necessary to make a voluntary and informed choice to consent to the search of his car, in the manner contemplated by Justice Doherty in R. v. Wills (1992) 70 C.C.C. (3d) 529 (Ont. C.A.). However, in my view, on these facts, the police were entitled under the common law to search Mr. Johnson's vehicle as an incident of arrest. I earlier ruled the arrest to be lawful. Police were acting properly in securing the scene in light of, the gun allegation and in searching for the purported weapon, both to preserve police and public safety and to attempt to discover evidence from a car the accused had just left. The search was conducted in a reasonable manner. See R. v. Caslake (1998) 121 C.C.C. (3d) 97 (S.C.C.). The knife is, accordingly, admitted into evidence.

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