Counsel:

      TRAFFORD J.:—

INTRODUCTION

On November 18, 1998, Dwayne P., the defendant, was arrested by Constable Murphy of the Toronto Police Services for, inter alia, possession of cocaine for the purposes of trafficking in the vicinity of O'Keefe Lane in the City of Toronto.  At the time it was an area notorious for the sale and use of narcotics including crack cocaine. Consequently, some officers wearing "old clothes" including Constable Murphy, Constable Niezen and Constable Laing were assigned to the area to investigate violations of drug laws. It was their work that culminated in the arrest of the defendant around 5:00 p.m. and the seizure of, inter alia, a large piece of crack cocaine from him.  The defendant was subsequently charged with offences under s. 5(2) and s. 8(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended and s. 270(b) of the Code as a result of circumstances allegedly occurring upon the arrest.

This is an application under s. 24 of the Charter for an order excluding the evidence seized from the defendant for violations of s. 8, s. 9 and s. 10(b) of the Charter.  The result of this application is substantially dependent on the assessment of the credibility of the material witnesses. Those witnesses are Natasha Prince, Constable Murphy and Constable Laing.  Both Mr. Kramer for the Crown and Mr. Scarfe for the applicant rely heavily on their own case in taking their positions before this court.

THE POSITION OF THE DEFENCE

The position of the defence is that in the circumstances of the case the detention of Mr. P. was not, objectively viewed, based on circumstances that led to a reasonable suspicion he was implicated in criminal activity. See R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.), R. v. Lewis (1998), 122 C.C.C. (3d) 481 (Ont. C.A.) and R. v. Young (1997), 34 O.R. (3d) 177 (Ont. C.A.).  The questioning of him at or near the outset of the detention was a search contrary to s. 8 of the Charter.  See R. v. Simpson, supra and R. v. Mellenthin, [1992] 3 S.C.R. 615.  At no time was he advised of the right to retain and instruct counsel in accordance with s. 10 of the Charter.  All of the evidence seized from him including the crack cocaine should be excluded under s. 24(2) of the Charter.  See R. v. Kokesch (1990), 61 C.C.C. (3d) 207 (S.C.C.), R. v. Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.) and R. v. Feeney (1997), 115 C.C.C. (3d) 129 (S.C.C.).

THE POSITION OF THE CROWN

The position of the Crown, on the other hand, is that the detention of Mr. P. was a lawful investigative detention.  It was not an arbitrary detention.  Nor, in this case, was there a duty to inform Mr. P. of the right to retain and instruct counsel under s. 10(b) of the Charter until after the arrest.  See R. v. Lewis, supra at para. 28. The conversation between Constable Murphy and the defendant, namely, "What do you have in your pocket?" including the response "Nothing" was not a search in the circumstances of this case.  See R. v. Mellenthin, supra.  By that stage of the incident Constable Murphy believed on reasonable and probable grounds that Mr. P. had committed a crime and intended to arrest him.  The subsequent altercation and resistance by the defendant does not render the manner of the arrest unlawful. The evidence, in the submission of the Crown, in any event, should not be excluded under s. 24(2) of the Charter. Consideration of the fairness of the trial, the seriousness of the breach and the effect of the exclusion of the evidence on the reputation of the administration of justice all lead to the dismissal of this application.

THE CIRCUMSTANCES OF THE CASE AS FOUND BY THE COURT

What, then, are the circumstances of this case?

On November 18, 1998 the defendant drove from Brampton with two female friends, Natasha Prince and Chanele Henry, to the Eaton Centre.  They intended to go to a store called "World of Shoes".  The defendant and his friends are young black people apparently in their early 20s.  They were well-dressed, clean and neat in their appearance.  The defendant proceeded north off Dundas Street West on O'Keefe Lane to find a parking space.  The vehicle was parked shortly before 5:00 p.m.  The three of them then walked southbound through O'Keefe Lane towards the Eaton Centre.  It is situated on the south side of Dundas Street West near Yonge Street. The lane was more or less dark at the time.  There was some random indirect lighting of the lane from a parking structure in the area and from lights near exits from adjacent buildings.

O'Keefe Lane is located near the intersection of Yonge Street and Dundas Street in downtown Toronto.  The laneway itself was notorious for the buying, selling and use of narcotics.  Street level drug activity was commonplace in the lane.  Dealers and users lurked in doorways.  Often times they were dressed in a shabby way.  Literally hundreds of arrests for drug offences have been made in the area by the Toronto Police Service over the years.  Consequently, it was properly the object of undercover investigations by "old clothes" officers.  Such officers are dressed not in ordinary police uniforms, but rather in casual attire consistent with the clothing worn by those in the drug culture and otherwise to facilitate an effective investigation of crimes committed by them.  All such officers carry with them badges identifying themselves as members of the Toronto Police Services.

However, there was also an abundance of legitimate activity by legitimate persons in and around O'Keefe Lane. There are lots of retail businesses.  Wholesale jewellers were there too.  Street vendors were common in the area at large. Some people parked illegally in the lane.  It was also a shortcut from Ryerson Polytechnic University to Dundas Street West.  Generally, the lane and its immediate vicinity were also very busy with legitimate activity throughout the normal working day.

After the defendant and his friends drove northbound through O'Keefe Lane and before they walked southbound towards the Eaton Centre, Constable Murphy, Constable Niezen and Constable Laing arrested two other persons for drug crimes.  They were placed in handcuffs. Constable Murphy and Constable Niezen had custody of one of them near the rear of 319 Yonge Street.  Constable Laing had custody of the other one near the rear of 325 Yonge Street. 319 Yonge Street and 325 Yonge Street were approximately 20 feet from one another.  All of these officers were awaiting the arrival of a cruiser to take their prisoners to 52 Division.  All of the officers were dressed in "old clothes". These were the circumstances as the defendant, Ms. Prince and Ms. Henry approached Dundas Street West from the north.

As they passed Constable Laing, Mr. P. noticed Constable Murphy and the other persons near 319 Yonge Street. While he noticed Constable Murphy and Constable Laing, he placed no significance on them or their presence in the area because he did not know they were police officers.  They were dressed like others involved in the drug activity of the area. Nor did he notice the handcuffs on either of their prisoners. Nor did he place any significance on the position of their hands in relation to their bodies.  The darkness in the area did not permit more precise observations.  Mr. P. was merely walking with two female friends towards "World of Shoes" in the Eaton Centre.  He had nothing in his hands as he passed Constable Laing and Constable Murphy.  His hands did move randomly in relation to his body and, at times, were in the immediate vicinity of the pockets of the pants he was wearing as he proceeded past Constable Laing.  Neither he nor his friends quickened their pace as they passed Constable Murphy.

It was in those circumstances that Constable Murphy formed a belief that Mr. P. may be a drug dealer passing through O'Keefe Lane.  Consequently, he quickly moved southbound so as to be able to confront Mr. P. and said "Police".  Constable Murphy did not produce his badge identifying himself as a member of the Toronto Police Service. Mr. P. and the women with him were confused by these circumstances because Constable Murphy, not being uniformed, did not appear to be a policeman.  Immediately after saving "Police" in an authoritative tone, Constable Murphy said "What do you have in your pocket?" relying on a movement of Mr. P.'s hands near his body and, in particular, near the pocket of the pants he was wearing.  Mr. P. replied "Nothing". Constable Murphy suspected he had drugs in his pocket.  He decided to detain Mr. P. until he found what was in his pocket.  There were no other questions asked of Mr. P. of an investigative nature.  As Constable Murphy reached for Mr. P., Mr. P. pushed him aside, turned around and began to run northbound through O'Keefe Lane.  Constable Murphy took up pursuit and tackled him.  An altercation followed.  This led to the intervention of Constable Laing to assist in gaining control of Mr. P..  Constable Laing used an asp to assist in the apprehension and arrest of the defendant.  A bag containing a large piece of crack cocaine was seized from him together with an amount of cash and a cell phone.

THE CREDIBILITY OF THE OFFICERS

It is necessary in this case to comment on the credibility of Constable Murphy and Constable Laing.  A brief summary of their evidence is helpful in this context.

Constable Murphy testified that he saw Mr. P. proceeding southbound in O'Keefe Lane at a distance of approximately 30 yards.  The lane was dark with some random lighting provided indirectly from buildings in the area.  He could see the top of a plastic bag in his left hand.  Mr. P. apparently saw Constable Murphy as he approached him.  Mr. P. quickly closed his hand on the bag and put it into his pocket when he was about 10 feet away.  Constable Murphy told Constable Niezen what he had seen.  As Mr. P. passed Constable Murphy, he quickened his pace.  Constable Murphy suspected he had drugs in his pocket.  Therefore, he positioned himself to confront Mr. P. before he arrived at Dundas Street West at its intersection with O'Keefe Lane.  At no time did he produce his badge identifying himself as a member of the Toronto Police Service.

Constable Laing testified that he had no recollection of the quickening of the pace described by Constable Murphy and made no note of it.  He also testified it was "... his impression ... he saw ..."  Mr. P. look towards Constable Murphy and Constable Niezen.  There was, he claimed, a movement of the left hand consistent with the placement of an item into the left pocket.  He did not see anything in Mr. P.'s hand.

Having assessed the credibility of Constable Murphy and the reliability of his testimony in the context of the evidence as a whole, I reject its material aspects.  In my opinion, it is not likely that a person with normal vision could see a portion of a plastic bag in the hand of a person 30 yards distant in a dark laneway.  It is important to recall that Constable Murphy did not testify that he believed he saw such a bag.  Rather he testified that he saw such a bag. Consequently, I reject that testimony as false.  This circumstance was a material part of the foundation of his investigation of the defendant.  Moreover, I prefer the evidence of Constable Laing on the issue of the quickening of the pace of the defendant as he passed Constable Laing.  I reject Constable Murphy's evidence on this point as well.  He is at least unreliable on this point.  Insofar as he described the defendant, at a distance of approximately 10 feet, closing his hand on the bag and putting it into his pocket, I reject his evidence as false.  If, as I have found, there was no plastic bag in the hand of the defendant at a distance of 30 yards and if, as I have found, he did not quicken his pace when he looked in the direction of Constable Murphy, apparently because he did not perceive him to be a policeman, there is no logical basis to find such an act by the defendant as described by Constable Murphy.  Nor is there any logical basis for an honest but reasonable mistake by Constable Murphy in describing this act as he did.  Again, it must be noted that his evidence was categorical on this point, namely, that Mr. P. quickly closed his hand on the bag and put it into his pocket.  Constable Niezen was not called to confirm a remark made to him by Constable Murphy at the time, namely, that he had told Constable Niezen what he had just seen.  His evidence on this point is, accordingly, rejected as false.

This assessment of his credibility and the facts as found by the court leave a simple factual matrix before the court.  A young black man in his early 20s was walking through a darkened laneway in downtown Toronto with two female friends towards the Eaton Centre.  They were neat, clean and well-dressed in their appearance.  The laneway was notorious for drug activity.  Three members of the Toronto Police Services were assigned to the lane as "old clothes" officers to investigate any such activity on November 18, 1998.  It was around 5:00 p.m.  The overall area of Yonge Street and Dundas Street including O'Keefe Lane was also then being used lawfully by many other people.  Thus, it will be readily appreciated that the notoriety of the area and the race of the defendant are the dominant circumstances in this case.  It is in those circumstances that I conclude that Constable Murphy consciously relied on the race of the defendant as an important factor in deciding to stop him for questioning.

What, then, is the legal significance of the facts as found by the court?

In my opinion, the defendant was "detained" from the moment Constable Murphy said, in an authoritative tone "... Police ... What do you have in your pocket?".  This was a demand or direction made to the defendant in circumstances that might have legal significance for him and which, in themselves, prevented him from obtaining legal advice he was entitled to at the time.  See R. v. Therens (1985), 18 C.C.C. (3d) 481 (S.C.C.) and R. v. Black (1969), 50 C.C.C. (3d) 1 (S.C.C.).  There was no attempt to comply with s. 10 of the Charter.  While Constable Murphy believed Mr. P. had illegal drugs on him, the belief was not based on circumstances that, objectively viewed, provided reasonable grounds to suspect he was involved in criminal activity.  There was no basis for an investigative detention in this case.  See R. v. Simpson, supra at pp. 500-503, R. v. Lewis, supra at para. 27-28, Brown et al v. The Regional Municipality of Durham Police (1999), 43 O.R. (3d) 223 (Ont. C.A.), R. v. Hall (1995), 22 O.R. (3d) 289 (Ont. C.A.), R. v. Polashek (1999), 45 O.R. (3d) 434 (Ont. C.A.) and R. v. Mulligan (2000), 142 C.C.C. (3d) 14 (Ont. C.A.).  The, presence of a reasonably well-dressed young black man, Mr. P., with two female friends who are similarly well-dressed, Ms. Prince and Ms. Henry, in an area notorious for street level drug activity around 5:00 p.m. on November 18, 1998 does not meet such criteria.  The random movement of the arm of Mr. P. in the vicinity of the pocket as he walked past Constable Murphy does not, in itself or contextually, provide such grounds.  The reputation of the area in itself is not sufficient to do so.  The overall area around O'Keefe Lane was, in any event, a diverse commercial area characterized by the racial and cultural diversity of downtown Toronto.  Nor, I say most emphatically, does the race of a person and, in particular, a young black male person, provide such a basis by itself or in the context of the other circumstances as found by the court.  Stereotypical assumptions linking young black men and the illegal use of narcotics do not provide a lawful basis to detain or arrest them.  See R. v. Simpson, supra, where Doherty, J.A. observed that "... subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation ...".

Regrettably, I am satisfied that the race of the defendant and his appearance was a factor that consciously led to the belief of Constable Murphy.  There was, accordingly, no lawful basis for Constable Murphy to position himself so as to impede the progress of Mr. P., Ms. Prince and Ms. Henry towards "World of Shoes".

Moreover, in these same circumstances, the question put to Mr. P. by Constable Murphy after he had identified himself by saying "Police", namely, "What do you have in your pocket?" was an element of a warrantless search conducted without consent.  The defendant felt compelled to answer the question in circumstances where there were no reasonable grounds to suspect he was implicated in criminal activity.  It was, therefore, an unreasonable search in contravention of s. 8 of the Charter.  See R. v. Mellenthin, supra, at para. 15-18 and R. v. Young, supra.  The answer given by the defendant, namely, "Nothing", and the attempted flight immediately afterwards may not be relied upon as additional circumstances to be marshalled on the issue of probable cause.  See R. v. Kokesch, supra.  The subsequent arrest and search purportedly incidental to it that led to the actual seizure of the crack cocaine, cash and cell phone were also unlawful.  It must be remembered that the actual seizure of the crack cocaine does not provide an ex post facto justification for the investigative misconduct in this, or any other, case.  See Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97 at 109 (S.C.C.), R. v. Greffe (1990), 55 C.C.C. (3d) 161 at 187-188 and 193-194 (S.C.C.) and R. v. Kokesch, supra at p. 228.

In all of the circumstances of the case, the admission of the evidence at trial would bring the administration of justice into disrepute.  The breaches of s. 8, s. 9 and s. 10 of the Charter, looked at as a whole, were serious ones.  The values embraced by those sections are of fundamental importance to a free and democratic society. Stopping people merely on the basis of a "hunch" is a serious departure from the standards we demand of, and expect from, our police officers.  Stereotypical assumptions, including those concerning young black men and narcotics, have no proper place in a properly conducted investigation.  The inherent worth and dignity of all people regardless of their race or ethnic origin must be respected by the police at all times during the investigation of even the most heinous crimes. While the tradition in Canadian policing is compatible with these considerations, I am satisfied Constable Murphy consciously departed from it in this case.  Having regard to all of the circumstances, the admission of the items seized from the defendant on November 18, 1998 would bring the administration of justice into disrepute.

CONCLUSION

Accordingly, all of the evidence seized is inadmissible at trial.

THE COURT:  Mr. Kramer.

MR. KRAMER:  Thank you, Your Honour.  As I indicated on Wednesday when you asked me the question what the necessity of the physical evidence that's now been excluded was to continue with the prosecution?  Certainly, with respect to the drug charges, there is no further basis, and, similarly, because of the nature of the Charter breach that you found, specifically that the arrest was unlawful, the Crown will not be proceeding with the assault resist arrest charges.  If all the charges could then be stayed at this point, please.

THE COURT:  You're directing the registrar to enter a stay, are you then?

MR. KRAMER:  Yes, please.

THE COURT:  Thank you.  Do you have any comment at all, Mr. Scarfe?

MR. SCARFE:  First of all, thank you very much, Your Honour.  Just a matter of a clerical point for the purposes of the written judgment, I believe where Your Honour indicated Dundas Street West, you may have meant east.

THE COURT:  I don't know.  Whatever I said I said, that's part of my ruling.

MR. SCARFE:  Okay.

THE COURT:  Thank you for your efforts on this case.  I appreciate it.

MR. KRAMER:  Thank you, Your Honour.

MR. SCARFE:  Thank you, sir.

MR. KRAMER:  As those are all my matters before you today, I wonder if I could be excused.

THE COURT:  Yes, thank you.  Mr. P., you're free to go at this stage.  Your lawyer will explain the situation, if  you need an explanation, as to what's happened here today.