



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carelse-Brown, 2016 ONCA 943

DATE: 20161215

DOCKET: C58539

Feldman, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marlon Carelse-Brown

Appellant

David Quayat, for the appellant

Nick Devlin, for the respondent

Heard: November 3, 2016

On appeal from the conviction entered on November 7, 2013
    by Justice Robert F. Goldstein of the Superior Court of Justice, sitting with a
    jury.

Gillese J.A.
:

[1]

This appeal requires the court to determine whether, based on a 911 gun
    call, police officers had reasonable and probable grounds to stop a speeding car
    and arrest its two occupants or, instead, were limited to an investigative detention.

BACKGROUND

[2]

On the evening of February 6, 2012, Constables Dickie and Verdoold (together,
    the Officers) were in uniform and on community response duty in Toronto.  Const.
    Dickie was driving a marked police cruiser and Const. Verdoold, who had 22
    years of experience on the police force, was in the passenger seat.

[3]

Following a 911 call, dispatch radioed the Officers with information of a
    person with a gun.  Based on information given by the 911 callers, dispatch
    alerted the Officers that the suspects had a firearm and were in a silver
    four-door Dodge sedan bearing licence plate BMMH719 that was driving southbound
    on Keele Street near Finch Avenue.  According to the 911 callers, the two
    occupants of the vehicle were light-skinned black males who appeared to be
    under 24 years of age, were wearing dark baseball caps, and the driver was wearing
    reading glasses.

[4]

Const. Verdoold entered the license plate number in his onboard computer
    and learned that the suspect vehicle, a silver four-door Dodge AXT, was
    registered to a car rental company and was not on file as a crime vehicle at
    the time.  He broadcast that information.

[5]

The Officers drove south on Jane Street, and then east on Wilson Avenue,
    in an attempt to intercept the Dodge.  As they drove, they continued to receive
    updated locations for the Dodge sedan.  Const. Verdoold learned from dispatch
    that the 911 callers were following the Dodge sedan after having had an
    encounter with the two occupants of the vehicle  whom they saw with handguns 
    at a Tim Hortons coffee shop in a gas station at Allen Road and Sheppard Avenue
    West.

[6]

At one point, the 911 callers reported that the suspect vehicle was
    pulling into an underground parking area.  Shortly after, the 911 callers indicated
    that they could see police officers and said they would wait for the police at Sentinel
    Road and Derry Down Road.

[7]

At 7:03 p.m., the Officers saw a silver Dodge sedan driving southbound
    on Derry Down Road.  Const. Dickie confirmed that the license plate matched the
    license plate number that dispatch had given.  Const. Verdoold was able to
    confirm only the last three numbers.

[8]

Const. Dickie turned the police car around and began to follow the Dodge
    sedan.  He estimated that the Dodge was travelling at around 60 kph in a 40 kph
    zone.  The Dodge turned west on Frankton Crescent.  A second police vehicle took
    the first position behind it and activated its roof lights.  The Dodge
    stopped.

[9]

Based on a concern for the safety of the public, himself and the
    occupants of the Dodge, Const. Verdoold decided to initiate a high risk
    takedown (i.e. an arrest at gunpoint).  Const. Verdoold testified that
    speaking to the 911 callers before intercepting the suspect vehicle was not an
    option because the two occupants of the car were understood to have firearms.  He
    also testified that he had responded to well over 100 gun calls in his years on
    the police force and had been shot at twice.  He formed the intention to arrest
    the occupants of the Dodge before he made observations about them.

[10]

Const.
    Verdoold deployed a shotgun, exited his vehicle and took cover behind a
    telephone pole.  He ordered the driver to exit the Dodge with his hands up.  Other
    responding officers took the driver into custody.  He noted that, consistent
    with the 911 callers description, the driver was a young black male with a medium
    to light complexion.  Const. Verdoold then ordered the person in the front
    passenger seat of the Dodge to exit the car with his hands up and lie down on the
    ground, face down with his hands to his sides.

[11]

The
    passenger was Mr. Carelse-Brown, the appellant in this matter.  He is a black
    male, with a light to medium complexion, in his twenties.

[12]

The
    appellant complied with Const. Verdoolds orders.

[13]

Const.
    Verdoold handcuffed the appellant and told him that he was under arrest for
    possession of a firearm.

[14]

Const.
    Verdoold testified that he did not detain the appellant to further his
    investigation but, rather, placed the appellant under arrest knowing that allowed
    him to search the appellants pockets.  He testified that he understood the
    difference between these two police powers  investigative detention and arrest
     and the greater judicial scrutiny that the decision to arrest an individual
    entails.

[15]

Const.
    Verdoold searched the right side of the appellants body for anything in
    relation to firearms, including ammunition.  He testified that a pat-down
    would have been insufficient because the 911 callers had mentioned that the
    Dodge sedan had been seen to pull into an underground parking garage, and that
    the callers had lost sight of the vehicle, so the occupants of the Dodge could
    have discarded firearms while in the parking garage.  As a result, Const.
    Verdoold was looking for ammunition or a magazine, as well as for handguns.

[16]

Two
    other police officers searched the left side of the appellants body.

[17]

Const.
    Verdoold found a small quantity of marijuana, in two baggies, in the
    appellants coin pocket and over one thousand dollars in cash, folded into
    bundles, in the appellants front right pocket.  The two other officers found
    more cash and a cellphone in the appellants left front pocket.

[18]

Police
    dog services searched the area afterwards and did not find any firearm-related
    evidence.  Const. Verdoold then further arrested the appellant for possession
    of marijuana and read the appellant his rights to counsel.  After that, Const.
    Verdoold learned that the appellant would be charged with threatening bodily
    harm, possession of marijuana for the purpose of trafficking, and possession of
    the proceeds of crime.  The threatening charge related to the encounter between
    the 911 callers and the occupants of the vehicle at the Tim Hortons coffee shop
    earlier that evening.

[19]

The
    appellant was taken to the police station where the police carried out a strip
    search for safety reasons because the appellant was to be held with other
    prisoners pending a show cause hearing.  This search led to the discovery of just
    over 25 grams of cocaine in the appellants underwear.

[20]

At
    trial, he was convicted of possession of cocaine for the purpose of
    trafficking.

THE APPLICATION TO EXCLUDE THE COCAINE

[21]

The
    appellant brought an unsuccessful application to have the cocaine excluded from
    evidence on the basis of alleged
Charter
infringements.
[1]
He acknowledged that the police made no error in a) stopping the Dodge; and b) not
    interviewing the 911 callers before acting.  He conceded that the police were
    entitled to investigate the occupants of the Dodge and conduct a pat-down
    search.  He also conceded that Const. Verdoold had subjective grounds to arrest
    him.  However, he argued that the police did not have objectively reasonable
    and probable grounds for that arrest.  If the arrest was unlawful, the
    appellant submitted that it violated his rights under s. 9 of the
Charter
.

[22]

On
    an investigative detention, the appellant said that the police would not have had
    the right to go through his pockets.  For that reason, the appellant contended
    that the search which led to the seizure of the marijuana and cash was unlawful,
    and hence violated s. 8 of the
Charter
.  Those seizures led to the appellants
    subsequent strip search and the discovery of the cocaine in his underwear.  In
    the result, the appellant argued, the police violated his ss. 8 and 9
Charter

rights and the cocaine should be excluded from evidence.

[23]

The
    application judge disagreed.  He found that the police had reasonable and
    probable grounds to arrest the appellant.

[24]

The
    application judge began by noting that s. 495(1)(
a
) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, provides that a peace officer may arrest,
    without warrant, a person who has committed an indictable offence or who, on
    reasonable grounds, he or she believes has committed or is about to commit an
    indictable offence.  He then referred to the requirements for a lawful arrest
    identified in
R. v. Storrey
, [1990] 1 S.C.R. 241: (1) the arresting
    officer must personally believe that he or she has reasonable and probable
    grounds to make the arrest; and (2) it must be objectively established that those
    reasonable and probable grounds existed.

[25]

The
    application judge noted the appellants concession that Const. Verdoold had
    subjective grounds to arrest the appellant and then turned to the question
    whether there were objectively established reasonable and probable grounds to
    arrest.  In finding that there were, the application judge relied on this
    courts decision in
R. v. Golub
(1997), 34 O.R. (3d) 743, leave to
    appeal refused, [1998] 1 S.C.R. ix.

[26]

In
Golub
, the complainant Mr. Hepworth was drinking with the respondent Mr.
    Golub at Rhinos bar.  They left after the bar manager refused to serve Mr.
    Golub.  After visiting various other bars, Mr. Golub became very upset and
    angry, recounting trouble with his ex-wife.  At one point, he struck Mr.
    Hepworth.  Mr. Golub told Mr. Hepworth that he would get even with the staff at
    Rhinos bar and showed him a rifle under his jacket.    Mr. Hepworth warned the
    bar manager at Rhinos, who in turn called the police.

[27]

After
    speaking with Mr. Hepworth at Rhinos, the police treated his complaint as a gun
    call requiring immediate action.  They located Mr. Golub at his apartment and
    ordered him to come out.  He did so and was arrested a short distance from his
    apartment door.  Fearing that there might be someone else in the apartment with
    access to a dangerous weapon, the police entered the apartment without a
    warrant and found a rifle and ammunition underneath a mattress.  The respondent
    was charged with several weapons offences but was acquitted of them, having had
    the rifle excluded from evidence under ss. 8 and 24(2) of the
Charter
.

[28]

This
    court allowed the Crowns appeal against the acquittals.  Doherty J.A., writing
    for the court, rejected Mr. Golubs argument that his arrest was unlawful
    because it was based on the uncorroborated information of Mr. Hepworth, a
    person of unknown reliability.  The application judge set out paras. 17-19 of
Golub
,
    in which Doherty J.A. explained why that argument failed:

[17]  Mr. Harris' proposition is a novel one.  If correct, it
    would greatly restrict the police power of arrest.  It would preclude the
    police from arresting a suspect based on information received from a witness to
    the crime even where the witness could have arrested the suspect pursuant to s.
    494(1)(a).  In addition, as pointed out by Mr. Hutchison for the Crown, in the
    course of oral argument, Mr. Harris' position would set the test for reasonable
    grounds for arrest higher than the eventual standard for conviction since the
    respondent could be convicted based on the evidence of Hepworth absent any
    confirmation of his version of events.

[18]  Mr. Harris' reliance on the search warrant cases is
    misplaced.  Both a justice and [an] arresting officer must assess the
    reasonableness of the information available to them before acting.  It does not
    follow, however, that information which would not meet the reasonableness
    standard on an application for a search warrant will also fail to meet that
    standard in the context of an arrest.  In determining whether the reasonableness
    standard is met, the nature of the power exercised and the context within which
    it is exercised must be considered.  The dynamics at play in an arrest
    situation are very different than those which operate on an application for a
    search warrant.  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.  The law
    does not expect the same kind of inquiry of a police officer deciding whether
    to make an arrest that it demands of a justice faced with an application for a
    search warrant.

[19]  The justice asked to issue a search warrant based on
    information provided by a police source is in a very different position than
    the police officer who is face to face with the complainant.  The justice asked
    to issue a search warrant based on information provided by a police source
    cannot assess the reliability of that secondhand information without additional
    information from the officer pertaining to the reliability of the officer's
    source.  The police officer faced with a complaint from a witness to events has
    information from a firsthand source and can question that source, if
    necessary.  To the extent that the position of the justice and the arresting
    officer can be compared at all, the officer acting on a complaint from a
    witness to the relevant events is in a similar situation to a justice who acts
    on firsthand information provided by the police officer.

[29]

The
    application judge also noted that a police officer is entitled to take into
    account information that he or she receives from a police dispatcher, even if
    he or she cannot independently confirm it.  He found that just because the Officers
    could have conducted further investigation, it did not mean that they were
    required to do more before arresting the appellant, in a situation that
    required them to act.

[30]

At
    paras. 30-31 of his reasons, the application judge concluded:

[30] Using a contextual analysis it is clear that the police
    had reasonable and probable grounds to arrest Mr. Carelse-Brown, and that there
    was an objective basis for those grounds, in particular:

 The complainants indicated that they had been threatened
    by two men;

 According to the complainants, each man was armed with a
    handgun;

 The complainants provided a location where the threats had
    taken place;

 The complainants gave a generic description of the
    suspects, but a very detailed description of the vehicle, including the make,
    the colour, and the licence plate number;

 The complainants were obviously in some form of contact
    with the suspect vehicle, as they relayed updated information from time to time
    as to the location;

 The complainants did provide at least their first names to
    the police dispatcher. Constable Verdoold could not recall whether or not he
    learned their names at the time of the gun call, but Constable Dickie did.  It
    is likely that since both were privy to the same radio communications,
    Constable Verdoold learned the names of the complainants but did not recall at
    the time of the trial.  In any event, even if Constable Verdoold did not know
    their names, certainly other police officers (or at least a police dispatcher)
    did.

[31] As in
Golub
and
Bush
,
[2]
the police had a specific and detailed complaint from a witness to the events.  That
    complaint was about individuals who were armed, had committed an offence, and
    were in a vehicle described with a high degree of specificity.

[31]

The
    application judge then considered whether the coin pocket search would have
    been permitted incident to investigative detention.  His reasons are not
    summarized here because that issue was not pursued on this appeal.

[32]

The
    application judge found that because there was no
Charter

breach,
    it was not necessary for him to decide whether the evidence should be excluded pursuant
    to s. 24(2).  Nonetheless, he considered the matter and determined that even if
    there had been a breach of the appellants
Charter
rights, he would
    not exclude the evidence.  In his view, if the state conduct was
Charter
-infringing,
    it was not serious.  He further found that the pocket search was minimally
    intrusive and relatively fleeting.  Finally, he found that society had a strong
    interest in an adjudication of this case on the merits.  He stated, at paras.
    51-52 of his reasons:

[51]   The possession of almost an ounce of cocaine must be
    viewed in light of a fairly minor
Charter

violation where the
    police were, without a doubt, required to act.

[52] In terms of the overall reputation of the administration
    of justice, in my view, a reasonable person, being well-informed and having
    thought the matter through, would have trouble understanding why the police
    were not entitled to respond as they did in reaction to a gun call.  Still less
    would it be readily understandable why evidence should be excluded where the
    police engaged in behaviour that, if it fell below the standard, only did so
    minimally.

[33]

The
    application judge dismissed the application.  At trial, the cocaine was
    admitted into evidence and the appellant was convicted of possession of cocaine
    for the purpose of trafficking.  The appellant was sentenced to 21 months
    imprisonment and three years probation.

THE ISSUES

[34]

The
    appellant submits that the application judge erred in finding that Const. Verdoold
    had objectively reasonable and probable grounds to arrest him.  This submission
    underpins the appellants contention that, when the police stopped the suspect car,
    they were limited to a pat-down search of its occupants, incident to an investigative
    detention.

[35]

The
    appellant also submits that the application judge erred in his analysis under
    s. 24(2) of the
Charter
.

ANALYSIS

[36]

I
    would not interfere with the application judges determination that the police
    had objectively reasonable and probable grounds to arrest the appellant for
    unlawful possession of a firearm.

[37]

Before
    a search can be held to be incidental to an arrest, the lawfulness of the
    arrest must be established:
R. v. Saeed
, 2016 SCC 24, [2016] 1 S.C.R. 518, at para. 37;
R. v. Fearon
, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 27; and
R. v.
Caslake
, [1998] 1 S.C.R. 51,
    at para. 13
.  The application judge set out and applied the correct
    legal principles in determining that matter.  As he stated, for an arrest under
    s. 495(1)(
a
) of the
Criminal Code
to be lawful: (1) the
    arresting officer must personally believe that he or she has reasonable and
    probable grounds to make the arrest; and (2) it must be objectively established
    that those reasonable and probable grounds existed:
Storrey
, at p. 250.

[38]

The
    appellant conceded, both below and before this court, that Const. Verdoold had
    subjective grounds to arrest the appellant.  Consequently, the sole issue is whether
    the application judge erred in finding that objectively reasonable and probable
    grounds existed  that is, whether a reasonable person, standing in Const. Verdoolds
    shoes, would have believed that reasonable and probable grounds existed to make
    the arrest:
Storrey
, at p. 250.

[39]

In
    finding that Const. Verdoold objectively had reasonable and probable grounds to
    arrest, it will be recalled that the application judge relied on the following:

 The complainants indicated that they had been threatened by
    two men;

 According to the complainants, each man was armed with a
    handgun;

 The complainants provided a location where the threats had
    taken place;

 The complainants gave a generic description of the suspects,
    but a very detailed description of the vehicle, including the make, the colour,
    and the licence plate number;

 The complainants were obviously in some form of contact with
    the suspect vehicle, as they relayed updated information from time to time as
    to the location;

 The complainants did provide at least their first names to
    the police dispatcher. Constable Verdoold could not recall whether or not he
    learned their names at the time of the gun call, but Constable Dickie did. It
    is likely that since both were privy to the same radio communications,
    Constable Verdoold learned the names of the complainants but did not recall at
    the time of the trial. In any event, even if Constable Verdoold did not know
    their names, certainly other police officers (or at least a police dispatcher)
    did.

[40]

The
    appellant says that the application judges first finding in this list is
    erroneous because there was no evidence that the 911 callers advised that they
    had been threatened by the two men in the suspect vehicle or that the Officers
    had received that information from dispatch.

[41]

I
    agree that at the time of arrest, Const. Verdoold did not know that the 911
    callers had told dispatch that the occupants of the Dodge threatened them
    during their encounter at the Tim Hortons coffee shop.  Therefore, it was an
    error for the application judge to have relied on the complaint of threatening
    when assessing whether objectively reasonable and probable grounds to arrest
    existed.

[42]

In
    my view, however, although Const. Verdoold had not learned of the threats to the
    911 callers before he made the decision to arrest, there were objectively
    reasonable and probable grounds to arrest.

[43]

Const.
    Verdoold knew that the 911 callers had recently encountered the occupants of
    the suspect vehicle at a nearby Tim Hortons coffee shop and that dispatch had reported
    that both of the occupants of the suspect vehicle had handguns.

[44]

The
    911 callers had identified themselves by giving their first names to the police
    dispatcher.  The callers gave specific and detailed information about the
    vehicle and its occupants. They behaved in an open and helpful way, actively
    assisting the police in locating the suspect vehicle, by following it and
    reporting on its movements.  The callers also offered to stop and meet the
    police at a specified intersection.

[45]

When
    the Officers first encountered the suspect vehicle, it was being driven at a
    high rate of speed  60 kph on a residential street with a speed limit of 40
    kph.  The information received by the dispatcher from the 911 callers, and
    relayed to the Officers, had been confirmed: the colour, make and type of the
    suspect vehicle; the vehicles licence plate; the vehicles location as it
    moved about; and the number and description of its occupants.  Everything that the
    Officers saw was consistent with the information that the 911 callers had given. 
    There was no reason to discount that information.  Based on that information,
    the Officers had every reason to believe that the occupants of the suspect
    vehicle were in possession of handguns.

[46]

The
    grounds to arrest depended on the plausibility of the 911 callers report of unlawful
    possession of a firearm.  In these circumstances, the Officers had no reason to
    doubt the
bona fides

of the callers.  In my view, not only were
    they justified in acting on that information, they would have been derelict in
    their duty had they not acted on it.

[47]

I
    reject the appellants submission that the Officers were limited to an
    investigative detention because they had not taken steps to confirm the 911
    callers information.  In
Golub
, this court squarely rejected the
    proposition that an arrest could not be made based on information provided by
    an unknown source, absent confirmation of that information  information that
    may itself be less than exact and complete.  In this regard, the words of
    Doherty J.A., at para. 18 of
Golub
, bear repeating:

In determining whether the reasonableness standard is met, the
    nature of the power exercised and the context within which it is exercised must
    be considered.  The dynamics at play in an arrest situation are very different
    than those which operate on an application for a search warrant.  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.  The law does not
    expect the same kind of inquiry of a police officer deciding whether to make an
    arrest that it demands of a justice faced with an application for a search
    warrant.

[48]

This
    was a dynamic, dangerous and rapidly changing situation involving a serious
    threat to public and officer safety.  Only about ten minutes elapsed from the time
    that the 911 call was first made, in which the callers alerted the police to
    their encounter with two men bearing handguns, to the time of the appellants
    arrest  an arrest that took place next to the car in which he had been a
    passenger and which had been speeding through a residential area in Toronto. 
    And, as I have already explained, Const. Verdoold made his decision to arrest
    after taking into account all of the available information.  To this I would
    add that the court has not been pointed to any information which Const.
    Verdoold is said to have disregarded and I see none on my review of the record.

[49]

Although
    the police in
Golub
interviewed the complainant prior to acting upon
    his information, that does not render such an interview a requirement in every
    case of a 911 call.  See also
R. v. Lowes
, 2016 ONCA 519, at paras.
    10-11, in which this court held that there is no obligation on the police to
    undertake additional investigative steps to test a 911 report of ongoing crime
    before they are entitled to take action in reliance on that call.

[50]

In
    oral argument, the appellant asserted that finding the arrest to be lawful runs
    afoul of this courts recent decision in
R. v. McGuffie
, 2016 ONCA
    365, 131 O.R. (3d) 643.

[51]

I
    do not agree.

[52]

In
McGuffie
, the police responded to information from security personnel
    at a bar that a group of five men had been seen passing around a handgun.  The
    doorman told Constable Greenwood that the appellant, who was quickly walking
    away from the bar, was a member of the suspect group.  Const. Greenwood detained
    Mr. McGuffie for investigative purposes and conducted a protective pat-down
    search.  This court held that the initial detention and search were lawful. 
    However, the detention became arbitrary when Const. Greenwood confined the
    appellant in the back of a police cruiser.

[53]

The
    facts in
McGuffie

are very different from those in this case. 
    Const. Greenwood detained Mr. McGuffie, who had been one of a group of five men
    in which a handgun had been passed around.  Mr. McGuffie was leaving the bar on
    foot.  Here, both occupants of a speeding car had been very recently seen with
    handguns and there was every reason to believe, at the time the car was
    stopped, that both men in the car had handguns.

[54]

The
    appellant also referred the court to
R. v. Godoy
, [1999] 1 S.C.R. 311,
    at para. 22, for the proposition that police action resulting from a 911 call must
    be minimally intrusive of liberty, as required in the circumstances.

[55]

Again,
    I do not find that
Godoy
assists the appellant.  In
Godoy,
the
    Supreme Court dealt with the reasonable limits on the common law police power
    to enter a dwelling to ascertain the health and safety of a 911 caller.  The
    limits on the police powers to enter a dwelling are not at issue in this case.

[56]

In
    the end, the appellant is inviting this court to ask why Const. Verdoold did
    not simply conduct an investigative detention.  That is the wrong question. 
    The correct question is: was the arrest lawful?  The answer to that question is
    set out above.  It leads me to conclude that Const. Verdoolds decision to arrest
    was a good-faith choice, objectively supported by the facts available to him at
    the time of arrest.

[57]

I
    would, therefore, not interfere with the application judges determination that
    reasonable and probable grounds for the arrest were objectively established.

[58]

Accordingly,
    it is unnecessary to consider whether the application judge erred in his
    analysis under s. 24(2) of the
Charter
.

DISPOSITION

[59]

For
    these reasons, I would dismiss the appeal.

Released: December 15, 2016 (K.F.)

E.E. Gillese J.A.

I agree. K. Feldman J.A.

I agree. M.L. Benotto J.A.





[1]

Reasons reported at
R. v.
    Carelse-Brown
, 2013 ONSC 4287, 286 C.R.R. (2d) 360.



[2]

R. v. Bush
, 2010 ONCA
    554, 101 O.R. (3d) 641.


