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DOC-X VOLUME V: APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION 5.) UNLAWFUL WARRANTLESS ARREST
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court of appeal for ontario
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
WAYNE FERRON Applicant
DOC-X
VOLUME V
APPLICATION RECORD FOR APPLICATION
FOR CONSTITUTIONAL QUESTION
5.) UNLAWFUL WARRANTLESS ARREST
5.) UNLAWFUL WARRANTLESS ARREST:
Please see page 46-61 under the sub heading SUMMARY OF THE FACTS, under the sub heading SYSTEMIC RACISM/RACIAL PROFILING, in APPLICANT’S FACTUM FOR CONSTITUTIONAL QUESTION (C51190).
Please see page 93-103 under the sub heading SUMMARY OF THE FACTS, under the sub heading WARRANTLESS ARREST AND OC-SPRAY, in APPLICANT’S FACTUM FOR CONSTITUTIONAL QUESTION (C51190).
Please seed DOC XI - APPLICANT’S AFFIDAVIT (Wayne FERRON).
Please see cross examination of Officer Burd, Officer Monk, Officer Brown, and Officer Broughton in Transcripts(DOC I to IX).
Please see Officer Broughton’s (1079) INITIAL OFFICER REPORT IMPAIRED , in DOC XII - EXHIBIT A Information 07-02500/07-02559 FOR APPLICATION TO ADMIT FRESH EVIDENCE(C51190).
Please see Officer Stribbell’s (529) PROSECUTION SUMMARY OF - GUILTY PLEA SYNOPSIS Report, in DOC XII - EXHIBIT A Information 07-02500/07-02559 FOR APPLICATION TO ADMIT FRESH EVIDENCE(C51190).
POLICE PROTOCOL:
[791] Pursuant to York Regional POLICE PROTOCOL;
“What to expect when stopped by Police
{...}
A York Regional Police Officer:
{...}
* will tell you why you are being stopped.
* will only use the force allowed by law (for example, to stop an offence, effect the arrest of a suspect or maintain custody of a prisoner).
* will generally arrest a person for a crime committed in the officer's presence, or when the officer has reasonable grounds to believe the person has already committed or is about to commit a crime....”
(POLICE POLICY, YORK REGION POLICE SERVICES WEB PAGE, page 1)
[792] Asper Broughton Shawn (#1079), INITIAL OFFICER REPORT IMPAIRED on the 28th of March 2007 at 00:55;
“On the 27th of March 2007 police received information regarding a possible impaired driver north bound on Woodbine Ave in the Town of Georgina. {...}
At approximately 23:52 hrs D/C Broughton and P/C Burd conducted a stop of a vehicle matching the description of suspect vehicle at Deer Park Rd and Metro Rd in the town of Georgina. The officers were in plain clothes suits and when they approached the drivers window, they identified themselves verbally and with York Regional Police Identification badges, and then engaged in a conversation with the male black driver. {...}
Uniform officers attended the scene in an attempt to to solicit information and the driver was equally resistant to answering the questions put to him. At approximately 00:13 hrs officer 1399 formed reasonable grounds that the Accused Mr Wayne FERRON was impaired by drugs. He was asked to step out of the vehicle and he refused. Officers removed the accused and notice that he was holding papers and a cell phone in his hand. The accused was passively resisting but when officers went to attempted to handcuff the male he became combative. The officers attempted to use distractive methods and the male became enrage. Officers notice the incredible strength of the male and that he was not responding to distractive strikes. It took 5 officers and the use of OC spray to subdue the accused. {...}
The male was transported to 3 District and immediately placed in a cell for his safely. He will be released on a form 10/11.1 when the Officer in Charge of the station feels that the accused is no longer under the influence of drugs or alcohol and it is safe for the accused to be released.”
(Author: 1079 Broughton Shawn, INITIAL OFFICER REPORT IMPAIRED, Related date: Wed, 28 Mar. 2007 at 00:55)
[793] Asper STRIBBELL GREGORY K (#529) PROSECUTION SUMMARY -GUILTY PLEA SYNOPSIS, WAYNE FERRON on the 28th of Mar. 2007 at 06:54;
“Count #1 Impaired Operation Sec 253(a) CC
*****************************************
On the 27th March 2007 the accused was observed by a witness operating a motor vehicle north bound on Woodbine Ave. The witness observed the vehicle weaving in and out of his lane. The vehicle pulled over at Doon Rd where the witness approached the driver to see if everything was OK. The accused failed to respond or acknowledge the witness. The accused then put his , vehicle back in drive and drove away. The witness called police. Plain clothes officers pulled the accused over at Deer Park Road and Metro Road in the Town of Georgina. Officers identified themselves but the accused would not acknowledge them. He kept turning his head so that officers could not make eye contact, every time officers 'got close to his window he would lean away in what appeared to be an attempt for officers not to smell his breath. Uniform officers attended and the accused would still not acknowledge them. At 013 hours officers formed the opinion that the accused's ability to operate a motor vehicle was impaired by drugs. The accused was advised that he was under arrest and removed from the motor vehicle.
Count #2 Resist Arrest Sec. 129 CC
**********************************
On the 27th March 2007 the accused was arrested for impaired operation at Deer Park Road and Metro Road in the Town of Georgina. The accused refused to exit his motor vehicle and as officer went to remove him. At this time the accused was passively resisting. When officers went to handcuff him the accused became assaultive towards the officers. Distraction techniques were used but were not effective and the accused became completely enraged. Officers noted that his strength was incredible at this point. Five officers and the use of OC Spray were used before the male could be restrained. Once handcuffed the accused became passive again and had to be carried to the police cruiser. “
(Author: 529 STRIBBELL GREGORY K, PROSECUTION SUMMARY -GUILTY PLEA SYNOPSIS, WA YNE FERRON, Related date: Wed, 28 Mar. 2007 at 06:54)
UNLAWFUL WARRANTLESS ARREST PREMIS:
[794]
• under 2.) EVIDENCE, systemic racism/racial profiling was established;
• under 4.) BIAS or REASONABLE APPREHENSION OF BIAS, bias against the Appellant in the process was establish;
• the arrest was warrantless;
• the arrest was not according to legislation;
• the arrest was improper;
• their was no reasonable to cause to arrest;
• pursuant to legislation, the arrest was unlawful;
• pursuant to R. V. KHAN, the arrest was unlawful;
• officers were in violation of the Applicant’s Section 10(a), 10(b), 7 and 15 Charter of Rights and Freedom.
[795]
GIVEN ASSUMPTION: The Applicant’s allege offence is a SUMMARY CONVICTION OFFENCE.
PREMISE: On or about March 27&28, 2007 in at the Town of Georgina in the Regional Municipality of York;
1) CASE 1: Officers did not witness any contravention the CRIMINAL CODE or the HIGWAY TRAFFIC ACT by the Applicant;
2) CASE 2: their was no need for Officers to establish the Applicant’s Identity;
3) CASE 3: their was no need for the Officers to secure evidence;
4) CASE 4: their was no objective reason for the arrest, or objective component in the given reasonable grounds of Officer Monk (1399) or all the Officers;
5) CASE 5: the Officers given reasonable ground in information 07-02500 & 07-02559 constructed byway of legal fraud;
6) CASE 6: the Officers collectively did not have legal reasonable grounds to arrest and Officers Monk(1399) did not have legal reasonable grounds to arrest. THE OFFICER IN CHARGE Officer Broughton (1079) knew this said fact.
CASE 1:
[796] Did Officers witness any contravention the CRIMINAL CODE and the Highway Traffic Act by the Applicant?
[797] Pursuant to the Officers given evidence, they did not personally witness the Applicant breaking any laws or statues before the arrest. For example, in Officer Burd’s (Officer of first contact), given evidence;
“Q. Okay. Is it possible to travel two
kilometres and not observe anything?
A. I don't understand your question.
Q. Okay when you saw me was I speeding?
A. I did not have a radar device on me at that time.
Q. Okay was I sweaving (sic) from left to right?
Did you see the lights going from left to right?
A. I - at which point?
Q. On Deerpark Road?
A. On Deerpark?
Q. Yes between the Queensway and Metro Road?
A. I don't recall any sweaving (ph).
Q. Okay.
A. It wasn’t until Deerpark just before Metro
that I was able to catch up with you.
Q. Did you observe me breaking any of the
highway Traffic laws?
A. At that point, within those 200 metres that I Has behind you?
Q. Yea that you saw me?
A. No I did not.
(D. BURD - Cr. ex, May 9, 2008 Trial Transcript; page 100-101, line 15-32, line 5-10)
[798] Asper Officer Burd, occupant in the front passenger seat of the Grand Prix (D303);
“Q. Were you speeding while you were driving along the Queensway?
A. Pardon me?
Q. Were you speeding while you were driving along the queensway?
A. Prior to or after I received the radio call?
Q. Well, well it would be after, after you received - you mean from dispatch?
A. Correct.
Q. After you received it.
A. Yes I would have been.
Q. You had the emergency watch light on?
A. No I did not.
Q. No you did not.
A. At which point are you talking about with the emergency light?
Q. I mean - on - for the course of the way that you drive on the Queensway and Boyer Road?
A. It was placed on partially through - with that it is a portable light, it is difficult to hold as well as to be operating a vehicle.”
(D. BURD - Cr. ex, May 9, 2008 Trial Transcript; page 99-100)
[799] Officer Broughton states on page 59 of the January 18, 2008 Trial Transcript;
“We’re coming - we’re coming, I believe, it ‘s westbound towards the lake along Deer Park Road. We saw the headlights. We were driving quite fast to catch up to it. As soon as we could see that it was a red Rogers van with letters on it, it matches the description. It’s late at night. There’s probably not too many vehicles out there. As fast as Darren, or sorry, P.C. Burd could put the light on the dash, he illuminated the light and it was as soon as the light went on the vehicle pulled over and stopped abruptly. There was - no real time...”
{...}
THE COURT: Okay. So there was time...
A. ...to follow and observe driving actions.
THE COURT: All right, but just when you see the vehicle, I mean when you first observe it and our lights not on there, there’s a few things that haven’t happened yet. The vehicle is not on the wrong side of the road. there’s no bad driving going at that point, right?
A. No.
THE COURT: Because otherwise you would have noted that, I guess?
A. Absolutely.”
(Officer Broughton- Cr. ex, January 18, 2008 Trial Transcript, page 59-60)
[800] Pursuant to the Officer Broughton Ex-in-Ch;
“A. And just before Metro Road we caught up to a red Rogers van and matched the description of the vehicle and we mounted the mobile red flashing light on the dash and activated it and the vehicle pulled over to the right side of the road and stopped abruptly.
Q. So then what happened?
A. I have it noted here at approximately eleven fifty-one, that’s when we advised the dispatcher that we have the vehicle stopped.
Q. Okay.
A. So about ten minutes had passed. P. C. Burd approached the driver’s side of the vehicle first and I followed up behind him and I was standing on the left side of P.C. Burd.”
(Dsct Broughton - Cr. ex, May 9, 2008 Trial Transcript; page 36-37, starting at line 20)
[801] This part of Officer Broughton’s given evidence seem to indicate more time than “no time” to observe and stop the Applicant’s vehicle. It is a matter of academics for D303 to equalize its speed with the Applicant’s vehicle, then determined it,s speed from D303 odometer before stopping the Applicant’s vehicle. This is a common practice for Officers without a radar.
[802] Pursuant to York Regional POLICE PROTOCOL;
“At all times, police officers must work within the Code of Conduct under the regulations of the Police Services Act, the Ontario Human Rights Code, the Regulations and Procedures of the York Regional Police, and other legislation.”
(POLICE POLICY, YORK REGION POLICE SERVICES WEB PAGE, page 1)
[803] Pursuant to Officer Broughton Cr-ex;
“Q. 23:50 March 27th DSP one - ID 5086 okay you
note it says D303 unmarked police vehicle, checking westbound
Deerpark right? That is at 23:50. Now if down little you go a
bit more to 23:52 27th DSP one 5086 - you will note D303
Deerpark/East Metro Road with vehicle. How much time has
transpired between that event, between those two instances?
23:50, 23:52 it is two minutes. Now for two minutes, there is your proof?
{...}
THE COURT: I think again the way of raising it
might be difficult but Mr. Ferron perhaps I can
again assist you with just clarifying the
question that you mean to put because I
understand what you are asking but in the two
minutes from seeing distant headlights, red
lights in a dark area and you are at some
distance to the point of stopping, assuming that
is two minutes or less, is there anything in
your notes about observations you made regarding
the accused driving during that time?
A. No absolutely not. The taillights were so
far in the distance, and I know that we had observed or I had
observed the taillights travelling northbound. Once I passed
the complainant, I lost sight of the taillights, I know I turned
left onto Boyer Sideroad, I believe it was Boyer Sideroad, went
down a little bit, didn't see any lights in the distance, turned
right around, came up and kept going north on the Queensway, saw
taillights again in a distance, attempted to catch up to the
vehicle, saw taillights going westbound on Deerpark again went
on the road, tried to catch up to the lights - we were just
approaching the Metro Road, my partner put the light up on the
dash, turned the lights on and the vehicle stopped immediately.
As far as actual driving evidence, no because as soon as we got
up close enough for the vehicle, he put the light on and the
vehicle stopped right then and there.”
(Dsct Broughton - Cr. ex, May 9, 2008 Trial Transcript; page 37-41)
[804] It should be readily apparent that Officer Broughton and Officer Burd, the occupants of Delta D303 are saying different things concerning the stopping of the Applicant’s vehicle.
[805] Pursuant to the Officer Broughton Ex-in-Ch;
Q. Now, what is a Delta 303 car?
A. The Delta 303 is an unmarked - looks like a civilian vehicle. It’s not the typical police car.
Q. Okay.
A. It was a copper coloured Grand Prix. There is no markings on it that indicate police, but we do carry a red emergency light that we put in the dash if we need to be involved in anything where we have to stop a vehicle.
(Officer Broughton- Cr. ex, January 18, 2008 Trial Transcript, page 34-35)
[806] Pursuant to the 9-1-1 call;
“CALLER: Tell him to give me some lights or something.
OPERATOR: Okay, well I can’t....
CALLER: No?
OPERATOR: They have to do what - you know.
CALLER: Okay, we’re coming up to Boyer, and I don’t know if he made a left or a right.
{...}
CALLER: A grey Grand Prix?
OPERATOR: Hold on for a second, I’m just confirming that.
CALLER: He’s flying.”
(Transcription of the Recording of 9-1-1 call to YRP by complainant; page 10 & 11, starting at line 14)
[807] Asper the complainant and the aforesaid two Officers who were not in the capacity of uniformed Officers, D303 was driven at a very high rate of speed (“flying”) from five corners; this was from downtown Keswick and through the residential neighborhood, while it’s emergency lights or emergency device was not in operation contrary to the Highway Traffic Act, to somewhere East of Deer Park/Metro Rd in the Town of Georgina. The aforementioned action is contrary to section 67.(1) of the Highway Traffic Act.
67.(1) The driver of an emergency vehicle that is:
(a) used for the transportation of a peace officer in the performance of his duties; may, while an emergency exists and only while the emergency device and emergency light are in operation, drive contrary to this Act, the regulations or a traffic bylaw where it is necessary in the circumstances to do so.
[808] When the officers saw the Applicant’s vehicle somewhere on The Queens Way or Deer Park Rd., they followed it for approximately 2 to 3 minutes and never noted in there memoranda notebooks any occurrence of erratic driving, speeding or any other violations of the Highway Traffic Act.
[809] Asper the cross examination of Officer Broughton. The Officer-in-charge declares in the May 9, 2008 Trial Transcript, on page 52, line 21-32;
“Q. Okay. true enough. Okay - actually I want to ask - were you speeding at any time before you activated your red emergency lights?
A. Yes I was.
Q. Okay. Is it against the law for you to be speeding?
A. Under the Highway Traffic Act I have authority to exceed the speed limit in the course of my duties.
Q. Without the red emergency light? Without your emergency lights on?
A. It may say in the Highway Traffic Act that I have to do it and if I breached a rule or a regulation, then it is up to the department to sanction me.”
(May 9, 2008 Trial Transcript, on page 52, line 21-32)
[810] Pursuant to DC Burd, passenger in D303;
A. Started to have sight of it around 23:48 and
23:51 is when we were able to successfully perform a traffic
stop with that vehicle.
Q. SO 23:51 and how did that traffic stop happen?
A. There is a red beacon on the inside of the
detective car that was just on the dash of the car and turned it
on and the car pulled over on Deerpark Road just east of Metro
Road north.
Q. When did you turn the red beacon on?
A. When did it turn on? Must be within around 23:51.
Q. You say that you first started to get - to have the Rogers van In sight about 23:48 why was it not pulled over until 23:51?
A. We were attempting to catch up to the
vehicle. We could see the tail lights of the vehicles and we
were attempting to catch up to them going westbound Boyers, west
on the Queensway then westbound on Deerpark Road.
{...}
Q. Okay so you initiated the traffic stop at 23:51?
A. Correct.
Q. And the beacon is on in the windshield does
the Rogers van pullover right away?
A. I had no indication it didn't pull over right away so it would have been within an ordinary amount of time. I do recall that it wasn't immediately but it wasn't anything that caused great concern at the time.
(DC Burd - Ex-in-Ch, May 9, 2008 Trial Transcript; page 83-86)
[811] Therefore, none of the Peace Officers witness the Applicant committing a “criminal” Offence before the Arrest. The Officers may have bee justified in initiating a Hi-way Traffic stop in accordance with the complainant’s unconfirmed allegation of Hi-way Traffic Safety concern void of corroborative evidence byway of Officers professional observation; However, they did-not have the legislative authority nor reasonable objective cause to arrest the Applicant.
[812] Thus, pursuant to Section. 495(1)(b)) of the C.C. restricts a Piece Officer from arresting the Applicant without a Warrant for a SUMMARY CONVICTION offence. Furthermore, Section 495(2) of the C.C. limits the powers of arrest without warrant of a peace officer.
[813] Pursuant to THE POLICE OFFICERS MANUAL;
“Person found committing a "criminal" offence. A peace officer may arrest without warrant a person whom he finds committing a criminal offence (s. 495(1)(b)). A criminal offence includes both an indictable offence and a summary conviction offence (R. v. Biron, 1.1976J2 S.C.R. 56).
Summary conviction offence. The power of a peace officer to arrest a person without warrant with regard to a summary conviction offence is restricted to a person that the peace officer finds committing such an offence (s. 495(1)(b )). “
(THE POLICE OFFICERS MANUAL of Criminal Offence and Criminal Law, Gary P. Prodrigues, CARSWELL 2000, page 66 - page 73)
[814] Pursuant to
“R. v. Biron, Supra, held that in order to arrest a person without a warrant for a summary conviction offence it is not sufficient for the arresting officer to show that he had reasonable and probable grounds to believe such offence had been, or was about to be, committed, rather he must go further and show that he found a situation in which a person was apparently committing an offence”
(ANNOTATIONS, 2009 MARTIN’S Annual Criminal Code, page 976)
[815] Thus CASE 1: has been proven.
Hence, the Officers did not witness any contravention the CRIMINAL CODE and the HIGHWAY TRAFFIC ACT by the Applicant.
CASE 2:
[816] Did their exist a need for Officers to establish the Applicant’s Identity?
[817] Pursuant to the Officers given evidence, they did not need to establish the Applicant’s identity before the arrest. For example, in Officer Burd’s given evidence, whom was the officer who had first contact with the Applicant;
“Q. When you randomly stop a vehicle, what is the requirement of the driver?
A. To produce his drivers’ licence, ownership and insurance.
Q. Did I do that?
A. Yes you did.”
(Officer Burd - Cr. ex, May 9, 2008 Trial Transcript, on page 95&96, line 5-32)
[818] Therefore, the Applicant identity was not in question before the arrest.
[819] Pursuant to MARTIN’S C.C. under the heading,
“Arrest to establish identity - It was held in R v. Moore, [1979] 1 S.C.R. 195 {...} which arose out of an arrest for a summary conviction provincial traffic offence for which these provisions are applicable by virtue of the provincial Summary Conviction Act, that as a constable has no power to arrest an accused for a summary conviction offence by virtue of this subsection unless, inter alia, the arrest was necessary to establish the person’s identity...”
(ANNOTATIONS, 2009 MARTIN’S Annual Criminal Code, page 978)
[820] Thus CASE 2: has been proven.
Therefore, their was no need for Officers to establish the Applicant’s Identity.
CASE 3:
[821] Was their a need for the Officers to secure evidence?
[822] Pursuant to Officer Monk’s given evidence;
Q. Okay. While you were searching the vehicle -
okay - did you find any weapons ...
A. No.
Q. ... drugs?
A. Nothing, nothing of significance, sir.
Q. Okay. Before you searched the vehicle did you
have suspicion that there was drugs in the vehicle?
A. I - I had suspicion that there may be items
that would provide evidence in regards to your - to your ....
Q. Items like weapons, drugs ...
A. Well in particular ....
Q. ... alcohol.
A. In particular drugs. You - you had been
arrested for impaired by way of impaired by way of drug. We - we....
Q. Did you ....
A. I searched your vehicle incident to arrest to -
to gather any possible evidence that was - was there to support
that.
{...}
Q. Those are your notes, okay. Did - the vehicle
was at Elliot's Towing for almost a day. Why did you not wait
for a warrant?
A. 'Cause I didn't need a warrant.
Q. You didn't need a warrant ...
A. I was searching the vehicle incident to arrest.
Q .to search the vehicle?
A. No. I said I searched your vehicle incident to
arrest like you were searched incident to arrest before
you were placed into the back of the police cruiser. “
(J. Monk - Cr. ex, July 23, 2008 Trial Transcript; page 99-100)
[823]
“Q. Do you know if there was a warrant to search the vehicle?
A. No warrant is required, searching the vehicle is the immediate area upon arrest, it is in the Criminal Code.
Q. Don’t you need a reasonable...
A. It is in the Criminal Code. It is part of the arrest.”
(S. Broughton - Cr. ex, May 9, 2008 Trial Transcript; page 49, line 15-32)
[824]
“Q. You did it - oh, yeah, you did say - you did an investigation? You did an investigation right?
A. Yeah.
Q. You?
A. Yeah.
Q. Okay. You searched the vehicle?
A. Nope.
Q. No?
A. There’s no reason.
Q. Possibly. I’d have to check the other officers’ notes for that.”
(Officer Broughton (#1079) - Cr. ex, January 18, 2008 Trial Transcript, On page 64 )
[825] Pursuant to the aforementioned, Officer Monk the arresting Officer, could not point to one single piece of evidence that need to be secured or why it need to be secure. The Officer clearly exceeded his authority byway of a misconception and interpretation of legislations which governs a warrantless search.
[826] Furthermore, the Officer points to arbitrary evidence which he hoped to fine and use to support his unlawful arrest. This is clearly improper and does not have any legal bases at bar. Officers did not need to secure evidence and could not find any objective evidence to support their reasonable belief of D.W.I (Drugs) against the Applicant.
[827] Their was no great effort made or desire shown to request a sample of the Applicant’s bodily substance to prove or support their D.W.I/DRUGS theory. Furthermore, the Applicant was refused when he strongly requested to be drug tested; the Crow refuses to disclose this evidence for the sole reason that it was irrelevant tho the matter at issue. In short their was no du-diligence show for the notion of an objective reasonable belief to arrest the the Applicant.
[828] The Applicant however, have shown du-diligence by obtaining is own personal drug test from a private doctor. This evidence was rejected by the court even though the courts and Crown knew the Applicant was having it done and the additional note explaining the drug-test results from the said doctor was provided.
[829] Not one single one of the Officer’s have identified or point to evidence which needed to be preserved. Furthermore, Officer Monk asserts that there was no evidence found in his warrantless questionable search for evidence.
[830] Thus CASE 3: has been proven.
Hence, their was no need for the Officers to secure evidence.
CASE 4:
[831] Was their an objective reason for the arrest, or objective component in the given reasonable grounds of Officer Monk (1399) or all the Officers collectively?
[832] Before the arrest, not one single Officer testified or gave evidence that they witness the Applicant committing any Offence before the arrest. Not even the the two Officers(Officer Burd & Broughton), who initiated the investigative stop after following the Applicant for about two minutes, and they made no observations of any crime being committed in their memoranda notebooks.
[833] Furthermore, their was no evidence to preserve and the Applicant surrendered his driving documents upon request, so their was no need to establish the Applicant’s identity, because they knew his identity.
[834] Pursuant to the MARTIN Annotated C.C.;
“It was held in R. v. Fosseneuve (1995), 101 C.C.C. (3d) 61 {...} that sub sec. (2)(d) of this section is invalid to the extent that it permits an arrest without warrant for the offences mentioned therein, solely on the ground of the “public interest”. However, it is valid to the extent that it permits the arrest in a public interest, limited to the needs to establish identity, secure evidence, and prevent the continuation or repetition of the offence or the commission of another offence.”
(ANNOTATIONS, 2009 MARTIN’S Annual Criminal Code, page 979)
[835] Since it has been shown in CASE 1, CASE 2 and CASE 3, that it was not the case that the Applicant identity needed to be established, it was not the case that their was evidence which needed to be secured, it was not the case that their was a need to prevent a crime in progress, it was not the case that their was a need to prevent the continuation or repetition of an offence or the commission of another offence.
[836] Therefore, Officer Monk extended his powers for arrest well pass the constraints laid down by the legislator when effecting a warrantless arrest for a SUMMARY CONVICTION Offence. This, implied that the arrest was not pursuant to the Criminal Code of Canada, and thus rendering it unlawful. Hence, the Arrest was unlawful pursuant to Section 495 of the C.C..
[837] Pursuant to MARTIN’S Annotated C.C. assertion;
“For a peace officer to have reasonable grounds and probable grounds his belief in the person’s guilt must take into account all the information available to him. He is entitled to disregard only what he has good reason for believing is not reliable:
Chartier v. Quebec (attorney General), [1979] 2 2S.C.R. 474...”
(ANNOTATIONS, 2009 MARTIN’S Annual Criminal Code, page 976)
[838] Pursuant to the Officer Monk given evidence, an inference that his reasonable cause was based on hearsay and subjective evidence which is highly suspect. The following Officers given evidence should illustrate this point. Officer Monk, the arresting Officer chose not to interview the Complainant, even though he had 20 minutes to do so.
[839] Asper Officer Burd’s cross examination in the May 9, 2008 Trial Transcript, on page 95 & 96, line 15-32, line 5-31;
“Q. Okay. What did you speak to the complainant about?
A. Within relation to your driving.
Q. Did you take a statement?
A. No I did not.
Q. Did you record what he was saying?
A. No I did not.
Q. Why not?
A. Because I was attempting to gain initial information from the individual so I had sufficient information for an arrest.
Q. Would that not be a good reason to write it down?
A. At that point, no.
Q. Why not?
A. Because I am attempting to gain initial information to effect an arrest.
Q. Okay let me ask you - there was at least five officers present - that was - was that sufficient force - five officers that one officer to go and take a statement from the complainant, from Mr. Fardy while everything was fresh in his mind?
A. In my opinion at that point we needed every officer we had to control you.
Q. To control me?
A. Correct.
Q. When did Mr. Fardy leave?
A. I don’t recall.
Q. Before or after the arrest?
A. I believe before.
Q. Before the arrest?
A. Correct.
Q. So you had some problems with me before the arrest?
A. Cooperative, you were not cooperative before the arrest.
Q. You needed every officer, all five, to make me cooperate?
A. It appears that way.
Q. When you randomly stop a vehicle, what is the requirement of the driver?
A. To produce his drivers’ licence, ownership and insurance.
Q. Did I do that?
A. Yes you did.”
(Officer Burd’s Cr-ex, May 9, 2008 Trial Transcript, on page 95&96, line 15-32, line 5-31)
[840] Asper Officer Burd’s cross examination in the May 9, 2008 Trial Transcript, on page 17&18, line 7-32, line 5-14;
“Q. Three times. How long did you speak to the complainant for?
A. Approximately a couple of minutes.
Q. A couple of minutes. Did you take a statement, sir?
A. I did not.
Q. Why not?
A. ‘Cause I didn’t need to.
(May 9, 2008 Trial Transcript, on page 17&18, line 7-32, line 5-14)
[841] Asper Officer Monk’s cross examination in the May 9, 2008 Trial Transcript, on page 84, line 7-21;
“Q. Did you speak to the complainant, sir?
A. No, I had no interaction with the complainant.
Q. So you didn’t take a statement from the complainant.
A. Not that I recall.
Q. What were you investigating?
A. As I said, I was investigating a complaint of an impaired driver.
Q. And why didn’t you speak to the complainant before the arrest?
A. Because Detective Countable Bird had already spoken to the complainant.
Q. Were you the arresting officer?
A. Yes, I was.”
(May 9, 2008 Trial Transcript, on page 84, line 7-21)
[842] Pursuant to the acting Sergeant Williamson;
“Q. And what else?
A. I - I don’t know exactly what we charged you with in the end ‘cause it wasn’t my I’m not...
Q. You don’t know what....
A. ...the officer in charge.”
(Sgt Williamson Cr-ex, 23rd of July 2008 Trial Transcript continuation, page# 33&34, line 24-32 & line 1-19)
[843]
“For a peace officer to have reasonable and probable grounds for believing in someone's guilt, his belief must take into account all the information available to him. He is entitled to disregard only what he has good reason for believing not reliable. Since the suspect was denying that he had been involved in the incident, and there was no reason to fear that he would run off, all the descriptions provided by the eyewitnesses should have been checked before he was incarcerated.”
((SUPREME COURT OF CANADA, Chartier v. Att. Gen. (Que.), [1979] 2 S.C.R. 474, page 500)
[844] Pursuant to Officer Monk Cr-ex;
“Q. So when I produced...
A. ...look at us
Q. ...my driver’s licence, insurance, and ownership, was that being uncooperative?
A. Well you didn’t produce that - those documents to me sir, so I’m not sure at what point you did produce those to the detective.
Q. But you had a discussion with the officers, didn’t you?
A. Yes.
Q. You didn’t discuss that?
A. No.”
(Officer Monk Cr-ex, May 9, 2008 Trial Transcript, on page 92, line 1-15)
[845] The aforementioned, should establish that the arresting Peace Officer’s (Officer Monk), reliance on subjective elements for his reasonable cause and he was not utilizing all the available information. Thus, Officer Monk the arresting Officer’s reasonable grounds and probable grounds of the person’s guilt did not take into account all the information available to him in accordance with Chartier v. Quebec (attorney General), [1979] 2 2S.C.R. 474. This is an essential element in reasonable belief. Thus, Officer Monk’s reasonable belief is in question or is wanting of the said essential element of reasonable belief.
REASONABLE GROUND:
[846] In R v. Bernshaw (1995), 95 C.C.C. (3d) 193 at paragraph 48 (S.C.C.), Sopinka J. also considered the test and observed:
“The existence of reasonable and probable grounds entails both an objective and a subjective component. That is, s. 254 (3) of the Code requires that the police officer subjectively have an honest belief that the subject has committed the offence and objectively, there must exist reasonable grounds for this belief.”
(R v. Bernshaw (1995), 95 C.C.C. (3d); page 3, para [15], (2006 CanLii 10219))
[847] In R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 at paragraph 48 (S.C.C.), Sopinka J. also considered the test and observed:
“The existence of reasonable and probable grounds entails both an objective and a subjective component. That is, s. 254 (3) of the Code requires that the police officer subjectively have an honest belief that the subject has committed the offence and objectively, there must exist reasonable grounds for this belief.”
(R. v. Bernshaw (1995), 95 C.C.C. (3d); page 3, para [15])
[848] Pursuant to the investigative documentation and Officer’s notes, their was two arresting Officers. Three Officers spoke to the Complainant, but none of the arresting Officers spoke to the Complainant. Not one of the Officers on site took a statement, because they thought it was not important at the time even though the Complainant was on site for 20 minutes. Which begs the question, if it is the case that the officers were solely acting on the complainant’s complainant with no improper purpose in conducting the investigative stop, then why did the arresting officer not take a statement from the allege witness. Given that , the complainant’s complain is the bases for the investigative stop.
[849] Pursuant to the July 23, 2008 Trial Transcript on page 86, line 5-20;
“Q. Did you ask me if you could look into my eyes?
A. No, I did not.
Q. Did you ask me if I was willing to walk a straight line?
A. Sorry - I’m not qualified field sobriety test officer, so no. I don’t have those qualifications. I wouldn’t make that request.
Q. You did - you did say my eyes were glazed over.
A. Yes, I made the observation that your eyes were glazed over, yes.
Q. And did you extrapolate - mean that this is part of the evidence?
A. Yeah, I - I - yeah, I use that as part of - part of my grounds that I believed that you were under the influence of narcotics.”
(Officer Monk, July 23, 2008 Trial Transcript on page 86, line 5-20)
[850] Asper the POLICE RADIO TRANSMISSIONS, YORK REGIONAL POLICE Incident No. 07-70285. The D.R.E. unit (SPARE 45) stated;
“ it pretty well makes no sense for me to drive up there to have him just pretty close, spit in my face. I’ll just be driving back. I don’t mind the drive north, but if it’s not worth it, it makes no sense. ... I am wondering whether the drive north is worth the effort. {...} No , probably by the time I get up there he’d have it all washed out of his eyes, but I mean, it’s not a legal requirement, so if he’s going to basically tell me to go pound salt, I’m wondering whether the drive north is worth the effort ”
... Officer Williams (PS35) replied “Okay, 10-4 it’s probably not worth the drive then, we’ll just take him in and charge him with the (inaudible), sort of things”.
(D.R.E. unit (SPARE 45), Transcription of the recording of police radio Transmissions of York Regional Police, page 4, 5)
[851] It should be noted that the Applicant asserts in his own opinion, that when he repetitively listen to the dialogue of interest, he hears “we’ll just take him in and charge him with the other slew of things”, at the inaudible section of the YRP Dispatch audio transmission.
[852] Not only is there no documented instance of the Applicant spitting on anyone or anything. But an Official Police drug test is a two edge sword. It can prove innocence as well as guilt. Why the Officers chose not to make a demand or asked to perform a drug test or to conduct or attempt to conduct the said test, to verify there crack cocaine theory, defies reason and logic, while simultaneously introducing many questions left unanswered.
“York Regional Police is reminding drivers that our service is a Canadian leader in the Drug Recognition Expert (DRE) Program and since its start in 2004, officers have laid more than 90 charges for drug-related Impaired Driving. York Regional Police was the first police service in Ontario to train officers as Drug Recognition Experts (ORE) and currently has 24 trained ORE officers, five of whom are qualified DRE instructors. In addition, York Regional Police Sergeant Rob Martin is currently seconded to the Royal Canadian Mounted Police, acting as the Ontario coordinator for the DRE Program, training officers from police services across the province in identifying drug-related impairment. Since the York Regional Police ORE Program began in July, 2004, trained ORE officers have conducted more than 130 drug evaluations on motorists and laid 90 Impaired Operation by drug charges... “
( Staff Sergeant Bradley Bulmer, MEDIA RELEASE, Corporate Communications YRP383(09/04E) , October 10, 2008 10, 2008 )
[853] The Officers had full opportunity to establish the objective component of the reasonable belief in the Applicant driving under the influence of drugs but denied themselves the opportunity to prove their drug theory of (CRACK COCAINE) and fulfill the objective component of their reasonable belief. But, the Officers chose to arrest the Applicant without establishing the objective component of their reasonable belief. Furthermore, a D.R.E test is a two edge sword which is capable of proving guilt or innocence! The aforementioned should establish that their was no objective reasonable ground.
[854] Therefore, the police officer may have had a subjective honest belief that the subject has committed the offence, but they did not have an objective reasonable belief. Thus, pursuant to s. 254 (3) of the Code there could not have existed legal reasonable grounds for their belief. Hence the arrest was unlawful!
[855] COURT FILE No.: Newmarket 4911-998-06-03546-00
Citation: R. v. Pozniak, 2008 ONCJ 59;
“[18] Section 254(2) provides a statutory scheme for the detaining of persons and requiring them to provide samples of their breath.
(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person’s body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.
(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.
[19] In making the following statements, I am quoting liberally from
Justice Kenkel’s
text, “Impaired Driving in Canada”.
[20] Although the threshold is low, there must be evidence capable of demonstrating that the officer have reasonable suspicion that the driver has alcohol in his or her body in order to make the Approved Screening Device demand. This does not mean simply that alcohol had been consumed at some point that day or the officer could detect alcohol in the vehicle or even on the person. The suspicion must be that the accused has alcohol in the body at that time and there must be objective evidence to support this conclusion. (R. v. Beechinor [2004] S.J. No. 187 at paragraph 23 – Sask. Prov. Ct.). In assessing the making of the demand, there are objective and subjective criteria that must be applied. The officer must have regard to the totality of the circumstances and not disregard factors that point away from what would be an indicia, ...
[21] The officer must not just presume the statutory precondition, but must have “reasonable objective grounds” for the suspicion. (R. v. Qoravkovic, [1997] O.J. No. 1010 (Ont. Gen. Div.) affirmed on appeal [1998] O.J. No. 2668, O.S.C. 119 (Ont. C.A.)). “
(R. v. Pozniak, 2008 ONCJ 59)
[856] Not only was their no demand made for a sample of bodily substance, but the Applicant was also not informed by any of the Officers that the investigative stop was for the purpose of investigating impaired driving by drugs or alcohol.
[857] Furthermore, their seemed to be a lack of shearing of information or a want for professionalism in the investigation during the investigative stop. Officer Monk after asserting many time that he and the other Officers collectively formed a reasonable grounds for D.W.I (Drugs) after a discussion of evidence and to arrest on the said basis had this to say;
“Q. So when I produced...
A. ...look at us
Q. ...my driver’s licence, insurance, and ownership, was that being uncooperative?
A. Well you didn’t produce that - those documents to me sir, so I’m not sure at what point you did produce those to the detective.
Q. But you had a discussion with the officers, didn’t you?
A. Yes.
Q. You didn’t discuss that?
A. No.”
(Officer Monk Cr-ex, May 9, 2008 Trial Transcript, on page 92, line 1-15)
[858] Asper the Typed Officers Notes, Officers Monk states;
“ In speaking with sgt. Williamson, D/C Burd, PC Brown, Det. Broughton collectively formed grounds that male was impaired by way of drug .”
(Officer Monk, Typed Officers Notes, on 28th of March 2007, page 10, line 13-15 at 00:13)
[859] Thus CASE 4: has been proven.
Hence, their was no objective reason for the arrest, or objective component in the given reasonable grounds of Officer Monk (1399) or all the Officers.
CASE 5:
[860] Was the Officers given reasonable ground in Information 07-02500 & 07-02559 constructed byway of legal fraud?
[861]
“11.3.4 Charge Review
The role of Crown counsel in the assessment or "screening" of charges raises a number of difficult issues. Investigators are clearly entitled to seek and receive legal advice before laying charges. Equally clear is the desirability of an effective working relationship to foster consultation when charges are considered. However, the extent to which the Attorney General can at law prevent the laying of charges, because of insufficient evidence or because a particular prosecution is not in the public interest, is not at all clear.
Some authorities argue that it is fundamental to our system of laws that no one can direct an investigator to lay a charge, or to refrain from doing so. Indeed, whether and to what extent the right of "anyone" (including a police officer) to lay an information under section 504 of the Criminal Code can be confined or abrogated is debatable.29
In practice, however, a form of pre-charge screening or "charge approval" occurs in Quebec, New Brunswick and British Columbia. Under these schemes, charges can be laid only if Crown counsel reviews and approves them. Four main arguments have been advanced in support of a charge approval process:30 it is fairer to the accused; it ensures that only cases with a reasonable prospect of conviction will proceed; it is more efficient because fewer mistakes will occur in the laying of charges; and the decision whether to prosecute is more objective.
On the other hand, opponents of pre-charge screening say that Crown control of the process leads to an erosion of police independence, the making of decisions behind closed doors rather than in open court, and a pre-empting by the Crown of the role to be played by the courts in the criminal trial process.
The Attorney General of Canada considers that the following policy principles strike the appropriate balance between the role of the police and the role of Crown counsel before charges are laid:
Members of investigative agencies are entitled to investigate offences and carry out their duties in accordance with the law and general standards, practices and policies established by those agencies. During the investigation, investigators are entitled -- and encouraged -- to consult with Crown counsel about the evidence, the offence and proof of the case in court. At the end of the investigation, investigators are again entitled (and strongly encouraged in difficult cases) to consult with Crown counsel on the laying of charges. This consultation might include discussions about the strength of the case and the form and content of proposed charges. Ultimately, however, investigators have the discretion at law to commence any prosecution according to their best judgment, subject to statutory requirements for the consent of the Attorney General, and the authority of the Attorney General to stay proceedings if charges are laid. However, investigators may not give any undertaking to the accused or counsel for the accused about the conduct of the proceedings (concerning, for instance, conditions of bail, whether the charge will proceed or not) without first consulting Crown counsel.
It is important to note that the Supreme Court has indicated the Crown and the police are to be given some latitude in deciding how to structure their relationship. In R. v Regan, LeBel J. stated: “Furthermore, while the police tasks of investigation and charge-laying must remain distinct and independent from the Crown role of prosecution, I do not think it is the role of this Court to make a pronouncement on the details of the practice of how that separation must be maintained.”31
Where the Attorney General of Canada chooses to participate in a process of pre-charge screening, the Attorney General of Canada will apply the charge approval standard established in Part V, Chapter 15, "The Decision to Prosecute", to all proceedings proposed to be commenced at the instance of the Government of Canada.
11.3.5 Conduct of Post-Charge Proceedings
The right and duty of the Attorney General, through Crown counsel, to supervise criminal prosecutions once charges are laid is a "fundamental part" of our criminal justice system.32 Generally, just as peace officers are independent from political control when laying charges, Crown counsel are independent from the police in the conduct of prosecutions.33 Crown counsel's independence extends, for instance, to assessing the strength of the case,34 electing the mode of trial,35 providing disclosure to the accused,36 deciding which witnesses to rely on (including decisions about immunity from prosecution)37 and deciding if the public interest warrants continuing or staying a prosecution.38
The authority of the Attorney General to screen charges at this stage is clear. Indeed, as described in Part V, Chapter 15, "The Decision to Prosecute", Crown counsel "are expected to review the [original] decision to prosecute in light of emerging developments affecting the quality of the evidence and the public interest, and to be satisfied at each stage, on the basis of the available material, that there continues to be a reasonable prospect of conviction". Crown counsel are also obliged to pursue early and fair resolution of all cases.39
Once charges are laid, full responsibility for the proceedings shifts to the Attorney General. On request, police have the responsibility to carry out further investigations that counsel believes are necessary to present the case fairly and effectively in court. As well, the Attorney General has the authority to control the proceedings after charges are laid, including conditions of bail, staying or withdrawing charges and representations on sentence. These decisions should, wherever reasonably possible, be made in consultation with the investigators although consultation (much less agreement) is not required as a matter of law. 11.4”
(The Federal Prosecution Service DESKBOOK, section 11.2, page 84-85)
[862]
“THE COURT: Okay. All right. With respect to - you can stand up just for a moment, Mr. Ferron, with respect to the impaired driving count I’m going to fine you in the amount of $600.00. {...}
MS. GOODIER: I’, sorry. I think Your Honour said the impaired count. I think you probably meant the dangerous driving.
THE COURT: I meant - I meant the dangerous. If I said impaired it’s - I misspoke...”
(R, V. Wayne FERRON, REASONS for JUDGMENT/SENTENCING, September 26, 2008, page 19)
[863] Her Worship Justice Healey, advise that there is no difference in one officer having reasonable cause to arrest and all officers having reasonable cause to arrest. Furthermore, she asserts that the Officers had reasonable belief that the Applicant was impaired by drugs;
“...
MR. FERRON: This is done a number of hours after. The reasonable grounds changes to officers had reasonable ground. The initial report, Officer Broughton, he says 1399, which is officer Monk had reasonable ground. And in the other one, Officer Stribbell says all the officers had reasonable ground.
And their notes concur with this, this, by the way. It’s changed in a matter of hours.
{...}
THE COURT: ...they both had reasonable belief that you were impaired by drugs, whether it’s one officer or 10 officers doesn’t make any difference.
MR. FERRON: But if they contradict each other.
THE COURT: They aren’t contradicting. It’s not as though one is saying you’re not impaired and the other one is saying you are.
MR. FERRON: Okay.
THE COURT: It’s pretty clear to me, from reading all of the evidence, all of it, sir, of the officers that were involve in investigating you that night, that they felt, at the scene, that you were impaired because you were responding, or not responding more to the point, in a very bizarre way. That’s uncontroverted evidence before Justice Kenkel. You were not able to explain the behaviours that you were exhibiting that night.
{...}
MR. FERRON: Well, uhm, Officer Broughton said that he didn’t have reasonable grounds. I asked him many times, he said he didn’t have reasonable grounds..
THE COURT: How much longer will you need o argue your matter?
MR. FERRON: I can’t just read it. I have to show you. There is the, uhm, the credibility for Stribbell and Broughton and the information.
THE COURT: Court is going to recess for afternoon break for 15 minutes. During that time I want you to assess how much longer...”
(Honourable Justice Healey, October 14, 2009 Application Transcript for 07-02559, page 35, line 20-36)
This is a fallacy in logic, an error of law of the Honourable Justice Healey! The logical construct for the issue in question is an if statement and not an if and only if statement, like Justice Healey is inferring. In short, the direction within the context of time of the flow of the given factual information must be taken into consideration. This alone should be enough for Leave to Appeal, in 5.) UNLAW FUL WARRANTLESS ARREST. Hence what has been asked has been shown in theses few pages.
[864] Quévillon c. R. 2007 QCCQ 9246, presented by THE HONOURABLE JEAN ROY, in allowing motion for stay of proceedings or exclusion of evidence under ss. 7 and 24 made the following findings;
“{...}
(i) Definition
The principle against self-incrimination, in its broadest form, can be
expressed in the following manner:
...the individual is sovereign and ... proper rules of battle between government and individual require that the individual ... not be conscripted by his opponent to defeat himself....
(Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), § 2251, at p. 318.)
Or, put another way, nemo tenetur seipsum accusare and nemo tenetur seipsum prodere and nemo tenetur armare adversarum contra se -- no one shall be required to accuse or betray or arm his enemy against himself.
Any state action that coerces an individual to furnish evidence against him or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination. Coercion, it should be noted, means the denial of free and informed consent.
(ii) Rationale
The modern-day rationale for the principle against self-incrimination is found in the two fundamental purposes for the principle that have been recognized by this Court:
(1) protection against unreliable confessions; and
(2) protection against the abuse of power by the state.
{...}
I conclude that their preservation is prompted by a concern that the privacy and personal autonomy and dignity of the individual be respected by the state.
The state must have some justification for interfering with the individual and cannot rely on the individual to produce the justification out of his own mouth.
Were it otherwise, our justice system would be on a slippery slope towards the creation of a police state. Concern about the abuse of state power is at the heart of the principle against self- incrimination.
{...}
[25] Also in Jones, supra,
the principle against self-incrimination is defined as “a general organizing principle of criminal law”. It is an assertion of the fundamental importance of individual freedom: ...”
(Quévillon c. R. 2007 QCCQ 9246, page 5 and 6)
[865] Pursuant to Justice Kenkel;
“The Officers were witnesses who were acting in a professional capacity at the time of their observations. They made detailed observations and were able to recall those details with the aid of contemporaneous notes. The officers involved in the arrest did appear to confuse who was on what side of Mr. Ferron, but beyond that the evidence of all the officers was consistent on the central points. I accept the evidence of the police witnesses ”
(Honourable Justice Kenkel, September 26, 2008, REASONS FOR JUDGEMENT, page 10-11, line 25-32, line 1-2)
[866] Pursuant to Justice Kenkel;
“Concerning Mr. Ferron’s lack of recollection of the central events and his flawed perception and irrational behavior at other times I find he is neither a credible nor a reliable witness. His evidence is illogical and contradicted by external credible evidence. Considering all of the evidence at trial as a whole I find I must reject Mr. Ferron’s testimony completely. ”
(Honourable Justice Kenkel, September 26, 2008, REASONS FOR JUDGEMENT, page 12-13, line 31-32, line 1-7)
[867] Pursuant to Justice Kenkel;
“The officers involved in the arrest had reasonable grounds to make that arrest and their uncontradicted evidence shows that Mr. Ferron chose to resist that arrest forcefully. Their evidence shows that Mr. ferron chose to resist that arrest forcefully.
Their evidence as to Mr. Ferron’s resistance is consistent with his odd refusal to speak or even acknowledge the officers from the time he was stopped and his attempt to walk away when he first exited the van. ... Considering all of the evidence as a whole I find that the Crown has proved this count beyond a reasonable doubt .”
(Honourable Justice Kenkel, September 26, 2008, REASONS FOR JUDGEMENT, page 14-15, line 27-30, line 1-24)
11. Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
CHRISTIE RULE:
[868] Pursuant to the CHRISTIE RULE;
CHRISTIE RULE
“Second, the inadmissibility of an accused's silence goes well beyond the ordinary civil rule of evidence concerning adoptive admissions: the silence of a civil party in the face of statements that cry out for an explanation gives rise to an inference of adoption: Bessela v. Stern (1877), 2
C.P.D. 265 (C.A.), at pp. 271-72; MacKenzie v. Commer (1973), 44 D.L.R. (3d) 473 (N.S.C.A.)
As the cases referred to earlier indicate, the mere silence of a criminal accused in the presence of a person in authority is not capable in law of supporting an inference of consciousness of guilt. The essence of the Christie rule is that even if the circumstances of an accusation cry out for an explanation or denial, the accused's silence, without more, is not evidence against him: “
(R. v. Hebert, [1990] 2 S.C.R. 151, page 51)
[869] Recall that it was already established above that the Officers were operating on a subjective reasonable belief which was wanting of its objective counter part. Furthermore, pursuant to the THE LAW OF EVIDENCE IN CANADA, post offence conduct evidence is highly suspect;
[870]
Post Offence Conduct Evidence:
“§1.77 As for post-offence conduct, the Supreme Court and the Ontario Court of Appeal have stated repeatedly that evidence of the accused's demeanour upon being questioned or confronted by an allegation of crime, such as calm reaction or lack of emotion or conversely, perspiring profusely or appearing nervous is highly suspect 63 in that perceptions of guilt based on demeanour depend on highly subjective impressions and such conduct is often equivocal. This evidence should not even be put to the jury unless it is sufficiently unambiguous and demonstrative of a relevant state of mind and only if its probative value outweighs its potential prejudice. It is noteworthy that the accused's demeanour was found to have played a part in the wrongful conviction of Guy Paul Morin . Evidence of the accused's refusal to answer police questions is not admissible as post-offence conduct unless silence is relevant to a fact in issue such as the failure of the accused to disclose an alibi in a timely manner. Otherwise the right to silence would be illusory. 64 Other post-offence conduct, though admissible, should be subject to cautions about misinterpretation when it is put to a jury. 65 “
(Sopinka, Lederman and Bryant THE LAW OF EVIDENCE IN CANADA, 3d, Alan W. Bryant, Sidney N. Lederman, Michelle K. Fuerst, ISBN978 0 433 45724-4
page 22-23)
[871] The insistence of the Officers relying exclusively on a subjective reasonable cause to arrest for driving under the influence of drugs(crack cocaine) and their supporting evidence which is in essence post offence conduct, is not capable of supporting and justifying a legal warrantless arrest for an allege SUMMARY CONVICTION offence at bar. Such a reliance on post offence conduct is highly suspect!
[872] Pursuant to Tyndale J.A., Vallerand J.A. concurring in Regina V. Lavin:
“ A person is not guilty of obstructing a peace officer merely by doing nothing, unless there is a legal duty to act arising at common law or by statute. In this case, the police officer had the right to arrest the accused if necessary to search him, but the refusal did not amount to obstruction. Wilful obstruction of a police officer requires either some positive act, such as concealment of evidence, or an omission to do something which one is legally obliged to do.”
(R. V. Lavin, on page 279 and 280 , para 4)
[873] In Moore C. La Reine (R. V. Moore), Per Dickson and Estey JJ dissenting:
“Any duty to identify oneself must be found in either common law or
statute quite apart from the duties of the police. A
person is not guilty of the offence of obstructing police
officer merely by doing nothing unless there is legal
duty to act. Omission to act in a particular way will give
rise to criminal liability only where duty to act arises
at common law or is imposed by statute.”
(Moore C. La Reine (R. V. Moore), of page 196 to page 197, para 1)
[874] In Moore C. La Reine (R. V. Moore), DICKSON dissenting:
“These proceedings originated in minor traffic infraction in the City
of Victoria British Columbia The issue raised however is an important one having to do with police power of interrogation and the right of
citizens to remain silent That right has always been regarded as absolute and as being firmly anchored to two fundamental common law
principles the presumption of innocence and the privilege against self-incrimination”
(In Moore C. La Reine (R. V. Moore), is states on page, para)
[875] In Moore C. La Reine (R. V. Moore), on page 210, para 2;
“The Crown conceded in this Court that no such
obligation was to be found in the common law
From whence then comes such duty Where
does one find the legal compulsion to answer
person cannot obstruct by refusing to answer
question unless he is under legal duty to answer”
(In Moore C. La Reine (R. V. Moore), is states on page# 209, para 5 and 6)
[876]
“The legal position in England and Wales has
been described in these terms in Police Powers in
England and Wales 1975 by Leigh at 195
And in general it still remains the rule that citizen has
right to be as unco-operative as he pleases provided
that he does not impede the course of justice by knowingly
giving false information to the police ”
(Moore C. La Reine (R. V. Moore), on page# 209, para 5 and 6)
[877] Pursuant to Theodore Mellenthin Appellant v. Her Majesty The Queen Respondent, Indexed as: R. v. Mellenthin ;
“ Appellant was detained and accordingly could reasonably be expected to
feel compelled to respond to questions from the police. A person who is detained can still consent to answer police questions. However, that consent must be one that is informed and given at a time when the individual is fully aware of his or her rights.
{...}
The legal position in England and Wales has
been described in these terms in Police Powers in
England and Wales 1975 by Leigh at 195
And in general it still remains the rule that citizen has
right to be as uncooperative as he pleases provided that he does not impede the course of justice by knowingly giving false information to the police
( R. v. Mellenthin, page 2 - 15, File No.: 22508. 1992: May 29; 1992: November 19. Present: Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ. on appeal from the court of appeal for alberta)
[878] Asper May 9, 2008 Trial Transcript on page 82. Officer Burd (1075) states during the Prosecutor’s examination in chief;
“Q. So after you learned that the individual had
to voluntarily take the drug recognition test, what happened?
A. At that point we all collaboratively spoke and
decided the male would be arrested for impaired, further
investigations would continue after that.
Q. Now who arrested him?
A. Uniformed officers I believe it was P.C. Monk
that initiated the arrest.
Q. Okay. What happened after it was decided that
Mr. Ferron would be arrested for impaired, now when you say
impaired, what do you mean by that?
A. Impaired by drug and/or alcohol.
Q. What happened at that point?
A. At that point uniformed officers, led by P.C.
Monk advised the male he would be under arrest and asked him to
step out of the vehicle.
Q. Where were you when this was going on?
A. Directly beside the officers, approximately
three feet from the driver's door.
Q. Okay who at that point was at the driver's door?
A. P.C. Monk, I believe there was three of them
were there, P.C. Monk is that one that was initiating the arrest I believe.
Q. What happened once Mr. Ferron was asked to
step out of his vehicle?
A. The driver refused to step out of the vehicle,
P.C. Monk then unlocked the door of the van and lifted the male out of the driver's seat.”
(Officer Burd’s Cr.ex in Chief, May 9, 2008 Trial Transcript on page 82)
[879] It is clear that when the Officers are speaking of the Applicant being uncooperative before the arrest, they are in essence speaking about the Applicant not giving uninformed answers. Furthermore, the Applicant was just exercising his rights pursuant to Section 10. of the Charter.
[880] If Officers wanted answers to question, they first needed to comply with section 10 of the Charter and insure that it was implemented without delay. Since the Officers questing was not benign or was in the context of the safety of the Applicant’s vehicle. Moreover the officers question were self incriminating question and the law does not support answering such uninformed questions at bar. Therefore, the matter before the court is not capable of supporting a reasonable ground to arrest in the aforementioned context.
[881] Thus, pursuant to Quévillon c. R, self-incrimination in the face of coercion is a denial of free and conformed consent and is a violation of the Charter of Rights and Freedom. Hence, pursuant to R. V. Lavin, R v. Moore, R. v. Mellenthin, R. v. Biron, and Post Office Conduct Evidence; the matter before the court , or more precisely, Information 07-02500 & 07-02559 is not capable of supporting a legally viable reasonable belief (cause).
[882] When Justice Healey and Justice Kenkel asserts that the Applicant could not explain his behaviour, which is just alleged subjective evidence or “post offence conduct”; this is a violation of presumption of innocence (S. 11(d)). The Applicant is the accuse, the accuse is presumed to be innocence. The matter at issue was suppose to be the Crown’s Onus. The prosecution was suppose to prove beyond a reasonable doubt the merits of their case within the context of the accused being presumed innocence and not required to explain “post offence conduct” which is highly suspect.
LEGAL FRAUD:
constructive fraud. 1. Unintentional deception or misrepresentation that causes injury to another. Also termed legal fraud; fraud in contemplation of law; equitable fraud; fraud in equity. 2. See fraud in law. [Cases: Fraud =>5.]
‘In equity law the term fraud has a wider sense, and
includes all acts, omissions, or concealments by which one
person obtains an advantage against conscience over an-
other, or which equity or public policy forbids as being to
another's prejudice; as acts in violation of trust and confi-
dence. This is often called constructive, legal, or equitable
fraud, or fraud in equity.’
Encyclopedia of Criminology 175 (Vernon C. Branham & Samuel B. Kutash eds., 1949), s.v. "Fraud."
( BLACK LAW DICTIONARY, Eighth Edition, Bryan A. Garner, Editor in Chief page 686)
[883] Asper the INITIAL OFFICER REPORT, prepared at about 00:55 hours on 28th of March 2007, by Officer Broughton (1079);
“At 00:13 hrs
officer 1399 formed reasonable grounds
that the accused Mr. Wayne Ferron was impaired by drugs.
He was asked to step out of the vehicle and he refused. Officers removed the accused and noticed that he was holding papers and a cell phone in his hand. The accused was passively resisting but when officers attempted to handcuff the male he became combative. The officers attempted to use distractive methods and the male became enraged. Officers noticed the incredible strength of the male and that he was not responding to distractive strikes .
{...}
The male was transported to 3 District and immediately placed in a cell for his safely. He will be released on a form 10/11.1 when he Officer in Charge of the station feels that the accused is no longer under the influence of drugs or alcohol and it is safe for the accused to be released”
(Officer Broughton (1079), INITIAL OFFICER REPORT)
[884] Asper the PROSECUTION SUMMARY-GUILTY PLEA SYNOPSIS, prepared at about 06:54 hours on 28th of March 2007, by Officer Stribbell (529);
Count #1 Impaired Operation Sec 253(a) CC
“...At 013 hours
officers formed the opinion
that the accused’s ability to operate a motor vehicle was impaired by drugs. The accused was advised that he was under arrest and removed from the motor vehicle.
Count #2 Resist Arrest Sec. 129 cc
...The accused refused to exit his motor vehicle and as officer went to remove him. At this time the accused became assaultive towards the officers. Distraction techniques were used but were not effective and the accused became completely enraged. Officers noted that his strength was incredible at this point...”
(Officer Stribbell (529), PROSECUTION SUMMARY-GUILTY PLEA SYNOPSIS)
[885] Asper the Typed OFFICER’S NOTES, at about 12:45 PM on 28th of March 2007, by Staff Sergeant Bruce Ringler (193);
“He was --- at scene but not talking.
They suspect impaired by drugs
- cocaine or crack cocaine.
Struggle at scene, non - cooperative.
Cuffed & put into cell 3DM5.
--- pulled shirt over his face.”
(Staff Sergeant Bruce Ringler (193), Typed OFFICER’S NOTES, page 32 at 12:45 PM)
[886] Asper the Typed OFFICER’S NOTES, at about 12:45 PM on 28th of March 2007, by Detective Greg Stribbell (529);
“5:45 AM 10-6 3DHQ A10/Sgt. 07-70285 - Speaking to S/sgt. Ledger re the incident,
he explained that D/C Broughton and P/C Burd had arrested him last night for impaired by drugs, took 5 officers to handcuff him. Has also been charged with resist arrest. Originally handed his licence but has not said anything, will not speak to anyone. Wife Mrs. Ferron 476-1092
S/gt. Ringler called her last night and she advised that he does no do drugs or drink. Has used crack in the past, but not for a long time. ”
(Officer Stribbell (529), Typed OFFICER’S NOTES, page 14 at 12:45 AM)
[887] Asper the SUPPLEMENTAL REPORT, prepared at about 13:59 hours on 28th of March 2007, by Officer Stribbell (529);
“D/C Broughton had gone back to his vehicle and was attempting to call Rogers Cable to confirm if the accused actually worked for them and if they had any idea what was wrong with him. His behavior was such that D/C Broughton thought that
he had been using drugs. ”
(Officer Stribbell (529), SUPPLEMENTAL REPORT )
[888] Asper the SHOW CAUSE HEARING REPORT, prepared at about morning of 28th on March 2007, by Officer Stribbell (529);
“The accused lives at the above address with his wife and children. His wife indicated to police that he does not abuse drugs or alcohol.
In the past however he has used drugs.”
(Officer Stribbell (529), SHOW CAUSE HEARING REPORT, page 1 comment box)
[889] TAKE NOTICE: There is a change from one Officer (1399) having reasonable grounds during the arrest; to all the Officers collectively having reasonable grounds, about six hours later after the initial Officer’s report by the Officer tasked to investigate the matter at issue. It is a small unnoticeable change, but effective in establishing reasonable grounds to arrest six hours after the arrest; violating due process and the Charter; robbing the accused and his family of there humanity; destroying the relation ship of TRUST between the accused and the State, and robing the courts and the Canadian people of the ends of justice.
[890] There is a change from impairment by alcohol or drugs; to impairment by drugs only. There is Officer Broughton crossing out the word alcohol in his memoranda notebook. There is a refusal and avoidance of the YRP conducting or asking to conduct a drug test. There is a strong assertion of the use of crack cocaine use by Officer Stribbell, in is notes and in the SHOW CAUSE HEARING as justification for desired Bond terms.
[891] There is the use of the complainant’s unsigned SUMMARY OF WITNESS ACCOUNT, and a mad rush to investigate after the filing of the first information 07-02500 to commission the second new or so-called replacement information. There was a lack of foresight by the prosecution to request a bodily sample for the purpose of pro-forming an independent drug test as conformation or evidence to the contrary against the Applicant’s private drugs test. Their was a failure by Officers to conduct a D.R.E. test to prove their Drug theory. Their was a failure to inform the Applicant of his Section. 10 Rights in a meaningful way, and insure that they are executed without delay.
[892] It should be noted that the Applicant informed all present at the Bond hearing on the morning of 28th of March 2007, that he would be attending the doctors office to have a drugs test preformed for the purposes of evidence to the contrary against the allege charges.
“In General, reasonable grounds are grounds that would lead an ordinary, prudent, and cautious person to have a strong and honest belief about the situation at issue.”
[893] Does a changing reasonable ground, where changing infers that the reasonable probable grounds (RPG) is arbitrary, fit the legal definition of reasonable objective grounds, in accordance with legislation and case law?
“FRAUD intentional deception resulting in injury to another. Elements of fraud are: a false and material misrepresentation made by one who either knows it is falsity or is ignorant of its truth; the maker's intent that the representation be relied on by the person and in a manner reasonably contemplated; the person's ignorance of the falsity of the representation; the person's rightful or justified reliance; and proximate injury to the person. See 310 F. 2d 262, 267. It "usually consists of a misrepresentation, concealment, or nondisclosure of a material fact, or at least misleading conduct, devices, or contrivance." 234 F. Supp. 201, 203. It embraces all the multifarious means which human ingenuity can devise to
CONSTRUCTIVE [LEGAL] FRAUD comprises all acts, omissions, and
concealments involving breach of, equitable or legal duty, trust or
confidence and resulting in damage to another, 38 Ca!. Rptr. 148, I ~I
i,e., no scienter is required. Thus the party who makes the misrepresentation need not know that It false. See 437 S.w. 2d 20, 28.
EXTRINSIC [COLLATERAL] FRAUD fraud that prevents a party from knowing about his rights or defenses or from having a fair opportunity of, presenting them at a trial, or from fully litigating at the trial all the rights or defenses that he was entitled to assert. 468 S.w. 2d 160, 163. It is a
ground for equitable relief from a judgment. See 247 P. 2d 801”
( BLACK LAW DICTIONARY, Eighth Edition, Bryan A. Garner, Editor in Chief page 686)
[894] For GO 2007-20285, there was two senior officers. The Officer-in-charge, DCst Broughton (1079) and the acting sergeant, Officer Williamson (1108). Officer Williamson under cross examination, does not remember or cannot independently recollect with the aid of his notes what the accused was charged or arrested for.
[895] Officer Broughton has stated multiple of times, that he had no reasonable grounds to arrest the Applicant.
[896] Officer Broughton states in is INITIAL OFFICER REPORT, that Officer 1399 had reasonable grounds for the arrest. This is officer Monk.
[897] Officer Stribbell six hours later, the officer task to investigate GO 2007-70285. Changes the reasonable grounds statement from one officer having reasonable grounds to officers having reasonable grounds.
[898] Now, is a shifting belief; consistent with the reasonable belief of a reasonable prudent cautious officer; having a strong and honest belief about the situation at issue and acting in a professional capacity?
[899] Officer Broughton, states that there was no confirmation or indication of impairment by alcohol from him or the other officers. Yet in THE INITIAL OFFICER’S REPORT DOCUMENT, Officer Broughton clearly states that the accused was under the influence of drugs or alcohol.
[900] When officer Broughton, took an oat to give his independent recollection. This was a false oat in the Applicant’s humble opinion, for the aforementioned reasons.
[901] Therefore Officer Broughton, the Officer-in-charge and the lead investigator, is wanting for credibility.
[902] It also follows that the arrest was not a lawful arrest; it lacks a reasonable objective reason. Spawned from a the honest belief of reasonable prudent cautious officers. It is like the officer-in-charge states concerning his belief. He had reasonable cause to stop, but not to arrest.
[903] Everything after the unlawful arrest would be FRUITS-OF-THE-POISONOUS-TREE and would be in question;
“fruit-of-the-poisonous-tree doctrine. Criminal procedure. The rule that evidence derived from an illegal search, arrest, or interrogation is inadmissible because the evidence (the “fruit”) was tainted by the illegality (the “poisonous tree”).
(Blacks Law Dictionary, page 693)
Please see sub heading 1.) NEW EVIDENCE, in DOC X - APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION.
Please see sub heading 6.) UNLAWFUL WARRANTLESS SEARCH, in DOC X - APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION.
Please see sub heading 7.) Crowns Obligation to Make Timely Disclosure to Defence, in DOC X - APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION.
Please see sub heading 8.) DEFECTIVE INFORMATIONS, in DOC X - APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION.
[904] Thus CASE 5: has been proven.
Hence, the Officers given reasonable ground in information 07-02500 & 07-02559 constructed byway of legal fraud.
[905] CASE 6:
Did all the Officers collectively have legal reasonable grounds to arrest or did Officers Monk (1399) have legal reasonable grounds to arrest ?
[906] Asper DCst Broughton (1079), TYPED OFFICER’S NOTES on page 28, para 3 & para 4, from his memorandum notebook. The Officer-in-charge states;
“I grabbed onto left arm for control - male incredibly strong - could not bring arm around to is back. Male was not yelling, calling out, screaming, just grunting / growling.
Officers calling out, telling male to stop resisting. Male was pushing back against officers - lifting himself and officers off the ground. PC Burd then applied OC spray to the suspect’s face .”
(DCst Broughton (1079), TYPED OFFICER’S NOTES, on page 28, para 3 & para 4)
[907] Asper January 18, 2008, Trial Transcript on page 42, line 4-12. Officer Broughton states during Ms. Goodier’s examination in chief;
“A. I don’t know who pepper-sprayed him, but somebody did use the O.C. spray and that’s when he stopped resisting at that point in time to allow us to get him cuffed up and then he became totally non-compliant, totally passively resistive. We had to pick him up and physically put him in the back of the police car.
Q. So when you say passively resistive, does that mean he....
A. That means he just goes totally limp .”
(DCst Broughton (1079), January 18, 2008, Trial Transcript, on page 42, line 4-12)
[908] Asper January 18th, 2008 Trial Transcript, page 57, line 15-22. Officer Broughton states, after the Applicant suggested that the danger of asphyxiation could have been a possible reason why he could-not scream;
“I didn’t use the spray so it wasn’t a consideration for me.”
(DCst Broughton (1079), January 18, 2008, Trial Transcript, on page 57, line 15-22)
[909] At about 00:56 hours on the 28th of March 2007, DCst Broughton advised P.C. Brown to read Rights to Counsel and Caution in the Bull Penn at 3D HQ. DCst Broughton suspended the rights of the accuse to have access to a Lawyer/Duty Counsel, while the accuse was in the BULL-PEN, according to his notes. There is no evidence in the day 56 security tape to support that the claimant’s rights was administered and executed in a meaningful way, in-fact it shows evidence to the contrary.
[910] Asper Typed Officers Notes, page 30, at 00:24, line 13-19. Officer Broughton states;
“male continued to be uncooperative male carried into cell advised PC Brown read Rights to Counsel/Caution and was unresponsive - one in cells male began taking clothes off and acting irrationally and was moved to bullpen. Opportunity for lawyer/D.C. suspended until male no longer under influence - re his personal safety.”
(Officer Broughton, Typed Officers Notes, page 30, at 00:24, line 13-19. Or Officer Broughton (#1079) Notes, page 84)
[911] The said allegation of Officer Broughton accusing the Applicant of taking off his clothes and then being moved to the bull pen. This statement is utterly false. The Applicant was moved to the Bull Pen at about 00:51 on March 28, 2007. If one check about 00:51 for supporting evidence in the day 56 security tape; one will fine that only evidence to the contrary exist. In fact it is the Officers who removed the Applicant Clothes (shirt). This is not the first time that Officer Broughton accused the Applicant of taking off his clothes in his given evidence.
[912] Asper DCst Broughton(1079), the lead investigator during his cross examination;
“No I was advised by P.C. Brown that’s what he did so that I have it in my notes to ensure that you were given your Charter Rights. {...}
P.C. Brown advised me that your rights to counsel and caution were read and your response was unresponsive. I was advised that you were continuing to be uncooperative in the cells.”
(May 9, 2008, TRIAL TRANSCRIPT, page 52, line 9 -16)
[913] Asper DCst Broughton (1079), the lead investigator during his cross examination;
“A. I was on hold at the time the arrest was made so I could observe from a distance what was going on beside the vehicle that is when I hung up the phone when they were struggling with you and had to take you to the ground.
Q. Okay. You didn’t form a collective opinion, your opinion wasn’t in it but if you notice just a little bit after impaired by drugs, you notice you crossed out alcohol. why is that?
A. Because according to the other officers at the scene, plus my own observations, I did not detect any sign of alcohol and I didn’t get any confirmation from any of the other officers that may have indicated that you were impaired by alcohol.”
(DCst Broughton (1079), May 9 TRIAL TRANSCRIPT, page 42, line 10-20)
[914] Asper the Typed Officers Notes, Officers Monk states;
“ In speaking with sgt. Williamson, D/C Burd, PC Brown, Det. Broughton collectively formed grounds that male was impaired by way of drug .”
(Officer Monk, Typed Officers Notes, on 28th of March 2007, page 10, line 13-15 at 00:13)
[915] Asper the Typed Officers Notes, Officer Williamson states;
“...spoke to all officers o/s ...gave phone to P/C Broughton - all officers feel male is impaired by drug, glaze over eyes, paranoid, non-compl, fidgety. P/C Monk making the arrest - told male he is under arrest for impairment .”
(Officer Williamson(1108), Typed Officers Notes, on 28th of March 2007, page 21, line 7-43 at 00:13)
[916] Asper the Typed Officers Notes, Officer Brown states;
“...meeting with other officers on scene. D/C Broughton, Burd, sgt. Williamson #1108, P.C. Monk #1399. Grounds for arrest formed due to male’s actions and officers and witnesses observations of driving.”
(Officer Brown, Typed Officers Notes, on 28th of March 2007, page 2, line 9-13 at 00:13)
[917] Asper Officer Broughton, the officer in charge states;
“That right I had not formed a reasonable grounds to arrest you. ...I certainly had justification to stop your vehicle and investigate you. ...The officers at the time were dealing with you beside the car, had informed me back at the station that they had culminated enough information to form the grounds that you were impaired by drug. ...I had no opinion in it because after the initial contact with you, I was back in the D303 car, phoning Rogers Communication...”
(Officer Broughton, May 9th, 2008 Trial Hearing Transcript. On page 41, line 26-32)
[918] On the 28th of March 2007, Officer Broughton filed a General Occurrence Information GO# 2007-70285 for: YRP5585. The document states that the accused was charged with Impaired Operation/Over 80 MGS, Obstruct Public Peace Officer and Drugs was claimed to have been consumed by accused. Charges Recommended was;
1. 1 count under C.C. 253(a)
2. 1 count under C.C. 129
[919] It is prudent to make a mental note, that Officer Broughton crossed out Alcohol in his notes as one of the justifiable reasons for the arrest. He also testified under oath that he detected no presence of Alcohol;
“On the 27th of March 2007 police received information regarding a possible impaired driver north bound on Woodbine Ave in the Town of Georgina. {...}
At approximately 23:52 hrs D/C Broughton and P/C Burd conducted a stop of a vehicle matching the description of suspect vehicle at Deer Park Rd and Metro Rd in the town of Georgina. The officers were in plain clothes suits and when they approached the drivers window, they identified themselves verbally and with York Regional Police Identification badges, and then engaged in a conversation with the male black driver. {...}
Uniform officers attended the scene in an attempt to to solicit information and the driver was equally resistant to answering the questions put to him. At approximately 00:13 hrs officer 1399 formed reasonable grounds that the Accused Mr Wayne FERRON was impaired by drugs. He was asked to step out of the vehicle and he refused. Officers removed the accused and notice that he was holding papers and a cell phone in his hand. The accused was passively resisting but when officers went to attempted to handcuff the male he became combative. The officers attempted to use distractive methods and the male became enrage. Officers notice the incredible strength of the male and that he was not responding to distractive strikes. It took 5 officers and the use of OC spray to subdue the accused. {...}
The male was transported to 3 District and immediately placed in a cell for his safely. He will be released on a form 10/11.1 when the Officer in Charge of the station feels that the accused is no longer under the influence of drugs or alcohol and it is safe for the accused to be released.”
(Author: 1079 Broughton Shawn, INITIAL OFFICER REPORT IMPAIRED, Related date: Wed, 28 Mar. 2007 at 00:55)
[920] On the 29th of March 2007, Officer JOE WILLMETS (Badge# 974) filed (07 - 02559), a new INFORMATION AGAINST FERRON Wayne with s new allegation in a new count (count 3).
IMPAIRED OPERATION/MOTOR VEHICLE/DRUG
OBSTRUCT/RESIST A PUBLIC/PEACE OFFICER
DANGEROUS OPERATION OF A MOTOR VEHICLE
“Count #1 Impaired Operation Sec 253(a) CC
*****************************************
On the 27th March 2007 the accused was observed by a witness operating a motor vehicle north bound on Woodbine Ave. The witness observed the vehicle weaving in and out of his lane. The vehicle pulled over at Doon Rd where the witness approached the driver to see if everything was OK. The accused failed to respond or acknowledge the witness. The accused then put his , vehicle back in drive and drove away. The witness called police. Plain clothes officers pulled the accused over at Deer Park Road and Metro Road in the Town of Georgina. Officers identified themselves but the accused would not acknowledge them. He kept turning his head so that officers could not make eye contact, every time officers 'got close to his window he would lean away in what appeared to be an attempt for officers not to smell his breath. Uniform officers attended and the accused would still not acknowledge them. At 013 hours officers formed the opinion that the accused's ability to operate a motor vehicle was impaired by drugs. The accused was advised that he was under arrest and removed from the motor vehicle.
Count #2 Resist Arrest Sec. 129 CC
**********************************
On the 27th March 2007 the accused was arrested for impaired operation at Deer Park Road and Metro Road in the Town of Georgina. The accused refused to exit his motor vehicle and as officer went to remove him. At this time the accused was passively resisting. When officers went to handcuff him the accused became assaultive towards the officers. Distraction techniques were used but were not effective and the accused became completely enraged. Officers noted that his strength was incredible at this point. Five officers and the use of OC Spray were used before the male could be restrained. Once handcuffed the accused became passive again and had to be carried to the police cruiser. “
(Author: 529 STRIBBELL, GREGORY K PROSECUTION SUMMARY -GUILTY PLEA SYNOPSIS, WA YNE FERRON, Related date: Wed, 28 Mar. 2007 at 06:54)
[921]
“Q. Can I ask a question if I met the condition for impairment?
A. Impaired by drug or impaired by alcohol?
THE COURT: Again that is a legal question so I know you don’t mean to ask sort of - that is the ultimate question of the cases whether the Crown at the end of all of the evidence - we have only started on the evidence, that the Crown can prove beyond a reasonable doubt, the impairment that they allege but are you trying to ask this officer regarding any indicia that he observed of impairment?
Q. I am trying to ask the reasonable grounds that they had to say that I was impaired.
THE COURT: He didn’t have grounds, I think he said that.”
(Court, May 9th, 2008 Trial Hearing Transcript, On page 47, line 5-30)
“A police officer’s right to arrest without a warrant is limited by subs.(2) of s. 495, which states that unless certain circumstances exist, an arrest cannot be made without a warrant for indictable offences listed in s. 553 ...,for hybrid offences, or for summary conviction offences. A police officer cannot make an arrest without a warrant unless he or she considers, on reasonable grounds, that it is in the public interest to do so. ‘In the public interest’ is a general term which means that the safety and well-being of the public is to be given priority.”
(CRIMINAL LAW and the CANADIAN CRIMINAL CODE, Third Edition, page 107, para 3)
[922] Pursuant the acting Sergeant, Sgt Williamson cross examination in July 23, 2008 Trial Transcript, on page 34, line 1-23;
“A. I - I don’t know exactly what we charged you with in the end ‘cause it wasn’t my - I’m not...
Q. You don’t know what....
A. ...the officer in charge.”
(Sgt Williamson Cr-ex, July 23, 2008 Trial Transcript, on page 34, line)
[923] The following logical argument is constructed from the properties of all the Officers given reasonable cause to arrest.
[924] LOGICAL ARGUMENT, PROOF BY CONTRADICTION:
PREMISE:
1) Let P be Officer Broughton reasonable cause to arrest;
2) Let Q be the four other Officers collective reasonable objective cause to arrest;
3) Let the universal set be, all Officers had reasonable cause to arrest;
GIVEN:
1) Pursuant to Officer Broughton, he did not have reasonable cause to arrest;
2) Pursuant to Officer Broughton, he did have reasonable cause to stop Applicant;
3) Pursuant to Officer Broughton, he was not apart of the discussion or collective determination that Applicant was DWI (Drugs);
4) Pursuant to Officer Broughton, Officer Monk(1399) had reasonable cause to arrest;
5) Pursuant to Officer Stribbell, all Officers had reasonable cause to arrest;
6) Pursuant to Officer Monk all Officers including Officer Broughton determined Applicant was DWI (Drugs);
7) Pursuant to Officer Brown all Officers including Officer Broughton determined Applicant was DWI (Drugs);
8) Pursuant to Officer Burd all Officers including Officer Broughton determined Applicant was DWI (Drugs);
9) Pursuant to Officer Williamson all Officers including Officer determined Applicant was DWI (Drugs).
ASSUMPTION: The P and Q are true statement
Therefore, we have P iff Q;
P is a necessary and sufficient condition for Q
for P iff Q to be true, P must be true, Q must be true
or for P iff Q to be true, P must be false, Q must be false
But the desired condition for the arrest to be lawful is P is true and Q is true
But P is false since P=Pc which is not P, pursuant to Officer Broughton evidence
Furthermore, (P intersect Pc) ={null set} and (P union Pc )={universal set}=Q
This implies that Pc iff Q is false
This implies that P iff Q is false (since Pc iff Q is false )
But P and Q are true statement, therefore there is a contradiction
Which implies that assumption is false
Thus, the reasonable objective grounds for arrest cannot logically exist under the given conditions
CONCLUSION:
Hence, the arrest must me unlawful and wanting of a honest reasonable objective grounds to arrest
NOTE: P=Pc is determined by officer Broughton given evidence that he did not have reasonable cause to arrest but he had cause to stop the Applicant. Furthermore he asserts that he was not apart of the discussion which resulted in all the officers determining collectively their reasonable cause that the Applicant was driving with the influence of Drugs (DWI), but instead asserts in his initial report that Officer 1399 (Monk) had reasonable cause to arrest the Applicant. It was Officer Stribbell, who was tasked to investigate the matter who made the determination that all the Officer collectively had reasonable cause to arrest the Applicant.
[925] Pursuant to MARTIN’S Annotated C.C. assertion;
“Meaning of reasonable grounds” (subsec. (1)(a)) - For an arrest to be valid on the basis of reasonable and probable grounds, it is not sufficient for the police officer to subjectively believe that he has reasonable and probable grounds to make an arrest. Rather, it must also be shown that a reasonable person, standing in the shoes of the officer, would have believed that reasonable and probable grounds existed. Rather, it must also be shown that a reasonable and probable grounds existed to make the arrest.”
(ANNOTATIONS, 2009 MARTIN’S Annual Criminal Code, page 976)
[926] Thus, CASE 6: has been proven.
Hence, all the Officers did not collectively have legal reasonable grounds to arrest, nor did Officers Monk (1399) have legal reasonable grounds to arrest.
This analysis of the warrantless arrest, which is shown to be an unlawful arrest, naturally leads in to violations of the Charter of Rights and Freedom. Section 10 is an essential part of a lawful detainment, a lawful detainment, and a lawful warrantless search. Further, their is an inference of violation of Section 11(d), Section 15, Section 7 of the Charter, Section 1. of the Human Rights Act, Section 1 and 2 of the Bill of Rights and the INTERNATIONAL COVENANT OF CIVIL AND POLITICAL RIGHTS.
Operation while impaired
253. (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred milliliters of blood.
For greater certainty
(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.
R.S., 1985, c. C-46, s. 253; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 59; 2008, c. 6, s. 18.
Evaluation
(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.
CHARTER (S. 10):
[927] The context in-which Officer Broughton states that the accused was given his rights to counsel and caution; seem as though it was his own personal independent recollected experience. Even though he states in his notes explicitly that the rights of the accused was suspended.
[928] Officer Broughton recorded in his notes , that the accused vehicle was searched and towed. Yet he insist that he does not know who searched the accused vehicle. Furthermore, Officer Monk states that he told Officer Broughton at the C.I.B. that he searched the accused vehicle. If Officer Broughton notes is his own personal experience; how can he record that the accused vehicle was searched, but does not know by whom? Now what transpired at the C.I.B. is a point of interest, since Officer Monk infers that all Officers involved in the matter before this court was involved in some kind of discussion run contrary to their oath being their personal independent recollection.
[929] The second arresting Officer was allege to have have read the Applicant his rights. But, the Applicant was not informed of his rights in a meaningful way. It was only given lip service which the Applicant has no recollection of. In fact, the said Officer claims to have given the Applicant his rights to counsel and caution in less than a minute.
[930] There is no record of a lawyer being called, there is no record of Duty Counsel being call, there is no record of the Applicant waving his legal rights or giving the Officers permission to search his person and vehicle, and their is no record of an health care professional being called. How can the Applicant possible make informed decisions. Informed decision which will effect his life, liberty and pursuit of happiness.
Officer Brown, the second arresting Officer who repeatedly stated in a very excitable voice; “Are you all right buddy? Buddy, are you alright? Buddy, are you alright? Buddy, are you alright?, so forth and so on”. From Metro Rd. to 3D HQ after the unlawful arrest. This is the Officer who gave false return on the process concerning the orientation and position the Applicant’s was transported in.
[931] This is the second arresting Officer who did not inform the Applicant in a meaningful way of his Rights or execute them without delay. He asserts that he took about one minute to read the Applicant his Rights, but their was no response.
“Q. ...when I was in the back of your cruiser
you said that you - you read me my rights.
A. That’s correct.
Q. Yes. About how long did this take?
A. Only took a minute. You were...
Q. A minute?
A. You didn’t say anything in response to it, so I didn’t have to write anything further down.”
(C. Brown - Cr-ex, July 23, 2008, Trial Transcript for 07-02559, page 58)
[932] In R. v. Peralta-Brito on page 18 & 19;
“In the Ontario Court of Appeal decision R.
v. Vanstaceghem, Justice Lacourciere, for
the Court, cites the following comments of
Justice Stortini in an Ontario District
Court Decision, R. v. Michaud, 45 D.V.R.
243 at pp 248-9, as accurately
interpreting the Court of Appeal’s
decision in R. v. Anderson (1984) 10
C.C.C. (3d) 417 and R. v. Baig (1985) 20
C.C.C. (3d) 515. The citation is as
follows:
“... The police may not be required to
go the extreme means in order to
respect an accused’s rights under s.
10 of the Charter. It is necessary,
however, in order to comply with the
section that an accused be
meaningfully informed of the rights.
The accused must understand what is
being said to him or her and
understand what the options are in
order that he or she may make a
choice in the exercise of the rights
guaranteed by the Charter.
It is not sufficient for a
police officer upon the arrest or
detention of a person to merely
recite the rights guaranteed by s. 10
of the Charter. As s. 10(b)
stipulates, the accused or detainee
must be informed. This means that
the accused or detainee must
understand what is being said to him
or her by the police officer.
Otherwise, he or she is not able to
make an informed choice with respect
to the exercise or waiver of the
guaranteed rights.
If the rights are read in
English only, and the accused’s or
detainee’s knowledge of the English
language does not allow sufficient
comprehension of the matter, those
are “special circumstances” which
alert the officer and oblige him to
act reasonably in the circumstances
..”
(R. v. Peralta-Brito; page 18 & 19)
[933] Pursuant to the Crown, Section 10 Charter Writes are as follows;
“MS. GOODIER: Just I’ve, uh, and again this is the
response that I received from my officer-in-charge.
He indicates there are no specific timeframes to
providing rights to counselor waiting for a person
to acknowledge that they understand. The
provisions under 10(b) would override anything our
Service would put in writing anyway, because 10(b)
says that the officers have a duty to provide
rights to counsel and inform accused of those
rights. It also states we are to accommodate
the execution of these rights without delay. Common
law says that officer safety, the individual
situation, etcetera, will dictate what the courts
deem reasonable. Mr. Ferron was provided his
rights to counsel at 12:22 a.m. There - there is
no set - I mean once you're arrested, you're -
you're given your rights to counsel. I - I don't
really know how to - and I know that the question
goes on to ask about the - the - the Charter and -
like there's no set - it's not like an officer will
sit there and wait, you know, five minutes to make
sure that someone answers.”
(Ms. Goodier, April 28, 2008, Application Transcript for 07-02500/07-02559, page 11)
Recall that the Applicant was detained for about 20 minutes.
[934] Quévillon c. R. 2007 QCCQ 9246, presented by THE HONOURABLE JEAN ROY, in allowing motion for stay of proceedings or exclusion of evidence under ss. 7 and 24 made the following findings;
“That is not to say that no protection is afforded to the offender at the
sentencing stage. As Lamer C.J. points out, this Court held in R. v. Gardiner, [1982] 2 S.C.R. 368, that the Crown must prove disputed facts beyond a reasonable doubt during the sentencing hearing. However, in determining what facts are admissible at the sentencing stage, Gardiner reaffirmed the widely accepted principle that judges should have in dangerous offender proceedings brought against him. Second, he argues that the accused access to the fullest possible information concerning the background of the accused. As Dickson J. stated, at p. 414:
It is a commonplace that the strict rules which govern at trial do not
apply at a sentencing hearing and it would be undesirable to have the formalities and technicalities characteristic of the normal adversary proceeding prevail. The hearsay rule does not govern the sentencing hearing. Hearsay evidence may be accepted where found to be credible and trustworthy. The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base his sentence. He must have the fullest possible information concerning the background of the accused if he is to fit the sentence to the offender rather than to the crime. [Emphasis added.]
Where there is psychiatric evidence legally obtained pursuant to an order under s. 537(1)(b) relevant to assessing the extent of his dangerousness, this evidence should be admitted at the sentencing stage. Section 7 protection does not disappear on sentencing. Nonetheless, it does not extend to a denial of critical evaluative evidence from psychiatrists legally gained at the pre-trial evaluation that may show whether the offender could qualify as a dangerous offender. Once in the sentencing realm, the needs of society must be given greater weight. This may not appear ideal from the perspective of the offender. However, as Lamer C.J. noted in R. v. Lippé, [1991] 2 S.C.R. 114, at p. 142: "... the Constitution does not always guarantee the `ideal'". Nor, as La Forest J. pointed out in Lyons, at p. 362, does
s. 7 entitle the accused to "the most favourable procedures that could possibly be imagined". B.
Section 10(b) Before the Court of Appeal, counsel for the appellant raised the additional argument that the appellant's s. 10(b) rights were violated in two ways during the psychiatric examinations.
First, the warning given to the accused by the doctors failed to outline the true extent of his jeopardy given the possibility that his statements might be used should have been given a second opportunity to exercise his right to counsel once it appeared that the focus of the examination was shifting to determining whether or not he was dangerous.
(i) Definition
The principle against self-incrimination, in its broadest form, can be
expressed in the following manner:
...the individual is sovereign and ... proper rules of battle between government and individual require that the individual ... not be conscripted by his opponent to defeat himself....
(Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), § 2251, at p. 318.)
Or, put another way, nemo tenetur seipsum accusare and nemo tenetur seipsum prodere and nemo tenetur armare adversarum contra se -- no one shall be required to accuse or betray or arm his enemy against himself.
Any state action that coerces an individual to furnish evidence against him or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination. Coercion, it should be noted, means the denial of free and informed consent.
(ii) Rationale
The modern-day rationale for the principle against self-incrimination is found in the two fundamental purposes for the principle that have been recognized by this Court:
(1) protection against unreliable confessions; and
(2) protection against the abuse of power by the state.
Wilson J., dissenting, elaborated on the latter purpose in Thomson Newspapers, supra, at p. 480:
Having reviewed the historical origins of the rights against
compellability and self-incrimination and the policy justifications advanced
in favour of their retention in more modern times,
I conclude that their preservation is prompted by a concern that the privacy and personal autonomy and dignity of the individual be respected by the state.
The state must have some justification for interfering with the individual and cannot rely on the individual to produce the justification out of his own mouth.
Were it otherwise, our justice system would be on a slippery slope towards the creation of a police state. Concern about the abuse of state power is at the heart of the principle against self- incrimination.
content of this rule were thoroughly canvassed in the reasons of McLachlin J. in R. v. Hebert, supra, at pp. 165-73, and need not be reviewed here. Suffice it to repeat McLachlin J.'s conclusion from p. 173 that:
... one of the themes running through the jurisprudence on confessions is the idea that a person in the power of the state's criminal process has the right to freely choose whether or not to make a statement to the police.
This idea is accompanied by a correlative concern with the repute and integrity of the judicial process. This theme has not always been ascendant.
Yet, its importance cannot be denied. It persists, both in Canadian jurisprudence and in the rules governing the rights of suspects in other countries. The confessions rule was (and remains) clearly grounded in the principle against self-incrimination.
[25] Also in Jones, supra,
the principle against self-incrimination is defined as “a general organizing principle of criminal law”. It is an assertion of the fundamental importance of individual freedom:
...the individual is sovereign and ... proper rules of battle
between government and individual require that the individual
... not be conscripted by his opponent to defeat himself. 2
[26] In R. v. White,3 Iacobucci J. sets out the criteria for the principle against self- incrimination. In paragraph 42, he also provides the best definition of the principle formulated in Jones:
Any state action that coerces an individual to furnish evidence against him- or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination. Coercion, it should be
noted, means the denial of free and informed consent.
(Emphasis added.)
[27] In determining the applicable burden of proof, Iacobucci J. notes that the
accused who challenges the admissibility of evidence under the Canadian Charter of Rights and Freedoms bears the burden of establishing an infringement of his or her Charter rights.
He adds, however, that once a prima facie case has been made with respect to an element of a Charter claim, it is up to the Crown to adduce evidence to rebut that prima facie case if it wishes. “
(Quévillon c. R. 2007 QCCQ 9246, page 5 and 6)
[935] Recall that Officer Broughton asserts in his notes;
“male continued to be uncooperative male carried into cell advised PC Brown read Rights to Counsel/Caution and was unresponsive - one in cells male began taking clothes off and acting irrationally and was moved to bullpen. Opportunity for lawyer/D.C. suspended until male no longer under influence - re his personal safety.”
(Officer Broughton, Typed Officers Notes, page 30, at 00:24, line 13-19. Or Officer Broughton (#1079) Notes, page 84)
[936] Furthermore, the Officer in-charge establishes one of the essential duties of a Peace Officer;
“Q. Yes actually the detective - you said that you didn’t advise anybody to read the rights to counsel or caution?
A. No I don’t believe I did because every officer knows when a person is under arrest to read the rights to counsel and caution.”
(DCst Broughton (1079), May 9, 2008 Trial Transcript, on page 56)
[937] Pursuant to R. v. Storrey, [1990] 1 S.C.R. 241;
“It is important to note that the neighbour did not state and did not know that the three men committed the robbery. The only information the neighbour possessed was that of the identity of the three men the victim had seen drinking beer the night before. There was absolutely no evidence connecting the three accused with the crime. It came as no surprise that the trial judge found that there was no basis for the police statement that they had reasonable and probable grounds to believe the accused had committed the crime. Indeed, one of the officers testified that: "We arrested them to determine whether they actually did it or not". Thus the arrest in the Duguay case could not and did not comply with the requirements of s. 450(1) of the Code and the arrest was unlawful. Against this background of an unlawful arrest, the
Court of Appeal then considered whether the detention of the accused violated s. 9 of the Charter. It was in this context that MacKinnon A.C.J.O. stated that an arrest which had been made solely to assist in an investigation was an arrest made for an "improper purpose".
The statement goes no further than confirming that an otherwise unlawful arrest cannot be justified on the grounds that it was necessary in order to further the investigation of the crime. It should not be taken as establishing a principle that whenever a lawful arrest is made, in circumstances where the police intend to do further investigation, that the arrest should then be considered to have been made for an improper purpose.”
(R. v. Storrey, [1990] 1 S.C.R. 241, page 12)
[938] Likewise, the Applicant’s matter did not conform to Section 450(1) of the Criminal Code as illustrated in R. v. Storrey, and the Applicant’s subsequent arrest was unlawful. It is therefore, reasonable for the Court to consider the Applicant’s arrest and 20 minute detention within the context of Section 9.
450. (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence,
(b) a person whom he finds committing a criminal offence, or
(c) a person for whose arrest he has reasonable and probable grounds to
believe that a warrant is in force within the territorial jurisdiction in which the person is found.
[939] Recall that the Applicant was arrested and charged. Then their was a mad rush to investigate the Allegations in Information 07-02500. Then the Applicant was recharged with a second Information 07-02559 containing a new count. Mr. Tait for the Crown and Mr. Constain for the Crown repetitively asserts that their is “no air of reality” to the Applicant’s Charter violations.
[940] In Justice Kenkel’s REASON’ FOR JUDGEMENT, he justified dismissing a finding of Charter violation by asserting that the Applicant’s detention was self imposed. Furthermore, Justice Healey affirms Justice Kenkel’s ruling of the detention being self impose, inferring that their cannot be a Charter breach on those basis.
[941] In the Applicant’s humble opinion, it appears that Mr. Tait is either knowingly or unknowingly misleading the Honourable Justice Healey and perverting the course of justice.
UNLAWFUL WARRANTLESS ARREST CONCLUSION:
[942] Recall, that for:
CASE 1: Officers did not witness any contravention the CRIMINAL CODE or the HIGWAY TRAFFIC ACT by the Applicant;
CASE 2: their was no need for Officers to establish the Applicant’s Identity;
CASE 3: their was no need for the Officers to secure evidence;
CASE 4: their was no objective reason for the arrest, or objective component in the given reasonable grounds of Officer Monk (1399) or all the Officers;
CASE 5: the Officers given reasonable ground in information 07-02500 & 07-02559 constructed byway of legal fraud;
CASE 6: the Officers collectively did not have legal reasonable grounds to arrest and Officers Monk(1399) did not have legal reasonable grounds to arrest. THE OFFICER IN CHARGE Officer Broughton (1079) knew this said fact.
[943] Their was no collective unity in the Officers reasonable cause to arrest the Applicant for D.W.I., since Officer Broughton boldly asserts in his given evidence that he was not party to the said collective decision to arrest the Applicant. Nor did he have reasonable cause to arrest the applicant but, only to stop the applicant.
Herein lies one of the many points of doubt within the matter at issue!
[944]
BELIEF. “More than acceptance, and involves knowledge, probably knowledge of consequences (R. v. Budin (1981), 58 C.C.C.(2d) 352 (Ont. C.A.)).”
(THE POLICE OFFICERS MANUAL of Criminal Offence and Criminal Law, Gary P. Prodrigues, CARSWELL 2000, page 100)
[945]
BEYOND A REASONABLE DOUBT. The standard of proof required in criminal cases. The burden cast upon the Crown is to prove all essential ingredients of the crime charged beyond a reasonable doubt. viz. “outside the limit of sphere of” or “past” a reasonable doubt (R. v. Lachance (1962), 39 C.R. 127 (Ont. C.A.)).”
(THE POLICE OFFICERS MANUAL of Criminal Offence and Criminal Law, Gary P. Prodrigues, CARSWELL 2000, page 100)
Where is the mens-rea?
Where is the presumption of innocence?
Where is the guilty mind within the heart of the accused?
[946] Given the the Applicant was accuse of driving under the influence of Drugs, subsequently arrested and charged. How does one reconcile the Applicant’s willingness to take a Drug test and the York Regional Police unwillingness to request bodily samples to conduct a drug test. Furthermore, they refused to conduct the said drug test even when the Applicant offered samples on a platter.
[947] The Crown asserts that Drug charges were withdrawn, but the fact still remains that D.W.I. was the foundation or main charge and the only reasonable belief or reasonable cause given for arresting the Applicant. It is impossibLe to speak or analyze the matter without looking at the Officer’s reasonable cause of allege drug impairment regardless of how many times the crown may state that count 1: S. 253(a) DRUGS has bee withdrawn, while at the concurrently using it to justify the prosecution. You cannot “have your cake and eat it too!”
[948] Not even the honorable presiding Justices are immune from the aforementioned fact, drug impairment is always revisited or relied on to support arguments or justify determinations and inferences. It is only natural, it is the foundation and justification for the arrest! The honourable Justices Kenkel and Justice Healey has illustrated this with their direct and indirect reference to Drug impairment. Furthermore, the search for drug use continued long after the Drug charges were withdrawn at the probation and parole phase.
Please see SELF INCRIMINATION under 10.) FUNDAMENTAL RULE OF JUSTICE.
Please see SYSTEMIC RACISM/RACIAL PROFILING under 2.) EVIDENCE.
[949] In the Applicant’s humble opinion, the available evidence does not point to the Officers having reasonable ground before the arrest, but instead supports the theory of the Officers reasonable ground being formed at the C.I.B. in the matter before this honourable Court.
[950] Officer Broughton given evidence points in the said direction;
“That right I had not formed a reasonable grounds to arrest you. ...I certainly had justification to stop your vehicle and investigate you. ...The officers at the time were dealing with you beside the car, had informed me back at the station that they had culminated enough information to form the grounds that you were impaired by drug. ...I had no opinion in it because after the initial contact with you, I was back in the D303 car, phoning Rogers Communication...”
(Officer Broughton, May 9th, 2008 Trial Hearing Transcript. On page 41, line 26-32)
[951]
“A. Yep we went to Three District headquarters, to the criminal investigation branch and myself and the other officers at that time began the paperwork for the arrest.”
(Officer Burd, May 9th, 2008 Trial Hearing Transcript. On page 94, line 10-15)
[952]
“Q. Did you tell anybody you searched the vehicle?
A. Absolutely.
Q. Who?
A. All the rest of the officers that were involved in the incident when I returned...
Q. How many of them?
A. to the station? The other four officers that were there.
Q. All of them?
A. While we were sitting in the C.I.B. office I informed that - everyone that was there that I searched the vehicle and didn’t find anything that’s significant. ”
(Officer Burd Cr - ex.23rd of July 2008, Trial Transcript, page# 98 & 99, line 10-17, line 1-7)
[953] If the Prosecution has reasonable belief in the merits of their case, why is their a blatant denial of evidence which will help the Applicant to know his case and give full answer to the Administration of Justice?
Why has the Crown continually abused the process at all levels of the Court?
[954] Pursuant to R. v. Hebert,
CHRISTIE RULE
“Second, the inadmissibility of an accused's silence goes well beyond the ordinary civil rule of evidence concerning adoptive admissions: the silence of a civil party in the face of statements that cry out for an explanation gives rise to an inference of adoption: Bessela v. Stern (1877), 2
C.P.D. 265 (C.A.), at pp. 271-72; MacKenzie v. Commer (1973), 44 D.L.R. (3d) 473 (N.S.C.A.)
As the cases referred to earlier indicate, the mere silence of a criminal accused in the presence of a person in authority is not capable in law of supporting an inference of consciousness of guilt. The essence of the Christie rule is that even if the circumstances of an accusation cry out for an explanation or denial, the accused's silence, without more, is not evidence against him: “
(R. v. Hebert, [1990] 2 S.C.R. 151, page 51)
Please see 2.), EVIDENCE.
[955] Pursuant to R. V. Smith
“While I can find no sound reason for invalidating an otherwise proper stop because the police use the opportunity afforded by the stop to further some other legitimate interest, I do see strong policy reasons for invalidating a stop where the police have an additional improper purpose. Highway safety concerns are important, but they should not provide the police with a means to pursue objects which are themselves an abuse of the police power or are otherwise improper. For example, it would be unacceptable to allow a police officer who has valid highway safety concerns to give effect to those concerns by stopping only vehicles driven by persons of colour. Section 216(1) of the HTA does not, in my view, authorize discriminatory stops even when there is a highway safety purpose behind those stops.”
(R. V. Smith, COURT FILE NO.: CRIMJ(F) 6474/02, DATE: 2004 1207; page 14&15, para[30]-para[33])
Please see CRACK COCANE THEORY, SYSTEMIC RACISM/RACIAL PROFILING, ATTEMP TO INFLUENCE A JUDICIAL OFFICER, DENIAL OF NATURAL JUSTICE AND PERVERTING THE COURSE and DRUGS, ALCOHOL, HEALTH/SAFETY AND SELF-INCRIMINATION MINING in APPLICANT’S FACTUM FOR APPLICATION FOR CONSTITUTIONAL QUESTION.
Please see 1.) NEW EVIDENCE, and 7.) Crowns Obligation to Make Timely Disclosure to Defence, in DOC X - APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION..
[956] HEART OF THE ACCUSE:
“I want and desire access to air and equitable justice?
It is not in accordance with the supreme law Canada to expect me to lend my credibility and confidence to an alleged bias hearing prep for my defeat, so that I may be ruled against in a vacuum. I want and desire access to air and equitable justice, I want my day in Court? I have been disarmed by the wanton denial of disclosable evidence, evidence deem to be disclosable by the MARTIN REPORT, the FEDERAL PROSECUTION DESKBOOK, AND THE ATTORNEY GENERAL’S DIRECTIVE.
My supporting documents have been denied for being too long, they have been accused of having too much evidence. I have been denied NATURAL JUSTICE, in what was suppose to be justice determinations of contested issues on a balance of probabilities. This has unjustly weighted the legal scale of justice in favour of an extremely powerful adversary. The denial of my leave to appeal is engineered to manufacture a dismissal of my Appeal, in the face of the colossal onslaught with the resources of the collective resources but, not its collective consciousness.
I reasonable believe that the Officers alleged reasonable cause to arrest for D.W.I.(Drugs) was formed at the C.I.B, after the arrest and during their meeting and exchange of events surrounding the arrest at the said location. Which in the Applicant’s view doesnot support the legal notion of reasonable cause to arrest.
Below is a partial citation of the SHOW CAUSE HEARING; this Appearance Transcript existence has been continually denied by the Crown and my request to have it as evidence in the Leave to Appeal has been rejected. But, I have already disclosed the March 28, 2007 Appearance Transcript to the lower Courts.”
(Wayne Ferron, Applicant)
[957] The following, which is denied evidence tagged as irrelevant or non existent by the Crown, speaks volumes about the matter before this honourable Court. It is a suppression of evidence and a denial of accessing justice freely without impedance.
On March 28, 2007, R. v. Wayne Ferron (07-02500), court proceedings was before His Worship Justice of the Peace B. Norton;
Ms. K. Wright for Crown;
Ms. Halajian for the Accused;
Recording No. 202;
Court Reporter, D. Dobson.
“MS. WRIGHT: It’s gonna be a consent release. Is that correct?
MS. HALAJIAN: Yes, that’s correct.
THE COURT: Who, this one?
MS. WRIGHT: Yes.
MS. HALAJIAN: (Inaudible).
THE COURT: And we’re dealing by video?
MS. HALAJIAN: Yes. It’ll be an own recognizance.
THE COURT: Well, why - I’m just curious.
{...}
MS. WRIGHT: This is a Crown onus situation where the Crown’s content to release Mr. Ferron on his own recognizance in the in the amount of $1, 000. Terms and conditions are simply to include that he reside at a - at an address approved of by this Court. That he - and that he not possess any weapons as defined by the Criminal Code.
MS. HALAJIAN: If I could just have a moment?
THE COURT: And I think the condition as approved by this Court, I think it should - possibly should just notify us of an address. I don’t know how this Court...
{...}
MS. WRIGHT: Yes. And my friend’s indicating that the -
the weapons prohibition is - is something that the Crown who reviewed this is not requiring and I will take her at her word for that and then the Crown won’t be requesting that.
THE COURT: So all we’re looking for is to appear in court? Is there a...
MS. HALAJIAN: Effectively Miss Barnier was in agreement that the release should be as similar as possible to a promise to appear...
THE COURT: All right.
MS. HALAJIAN: ...from a - from the station.
THE COURT: What about the not consume alcohol?
MS. HALAJIAN: No - that - she wasn’t concerned about that.
THE COURT: Any comments from the Crown?
MS. WRIGHT: No.
THE COURT: All right. Well, is there a criminal record?
MS. WRIGHT: No. Does Your Worship, want to know his allegations?
THE COURT: Are they essentially laid out on the face of the information?
MS. WRIGHT: I think so.
THE COURT: Very well. Any comments?
MS. HALAJIAN: No, thank you.
THE COURT: Mr. Ferron, this is a Crown onus matter. Crown has chosen not to show cause why you should be held in custody. She is showing cause to the extent the conditions be applied to your release. Therefore, this court is prepared to release you upon entering into surety, without deposit, with conditions. Those conditions are you’re to notify - who’s the officer-in-charge?”
(March 28, 2007, APPEARANCE TRANSCRIPTS, R. V. FERRON (07-02500), page 2-9)
[958]
“INVESTIGATION
The framework of laws and rules that govern the administration of justice in cases involving an individual who has been accused of a crime, beginning with the initial investigation of the crime and concluding either with the unconditional release of the accused by virtue of acquittal (a judgment of not guilty) or by the imposition of a term of punishment pursuant to a conviction for the crime.
Introduction
Criminal procedures are safeguards against the indiscriminate application of criminal laws and the wanton treatment of suspected criminals. Specifically, they are designed to enforce the constitutional rights of criminal suspects and defendants, beginning with initial police contact and continuing through arrest, investigation, trial, sentencing, and appeals.”
“(ii) March 30, 2007
The Information notes that you were present in Court on March 30, 2007 but that
when your matter was called, you failed to appear. A bench warrant with discretion was issued and your matter was adjourned to April 13, 2007 to be spoken to. Your materials and the trial transcript dated June 17, 2008 indicates that there was some discussion on that date about whether the impaired driving charge would be withdrawn at that stage. I expect that your reference to this date relates to your complaint that the impaired driving charge should have been withdrawn sooner. The Information does not indicate that the impaired driving charge was withdrawn on this date. Rather it notes that the impaired driving charge was formally withdrawn by the trial Crown on January 18, 2010. The transcript of January 18, 2010 also confirms this. Regardless of what date the Crown requested that this charge be withdrawn, it is officially noted as withdrawn and no
one can or will now proceed against you on that particular charge.
(3) Trial
(i) January 18, 2008
At the outset of trial the Crown requested that the impaired driving charge be withdrawn. That charge was accordingly marked withdrawn on the formation as of this date (January 18, 2010). Your trial before Justice Kenkel of the Ontario Court of Justice in Newmarket, Ontario on the remaining counts of resist arrest contrary to section 129(a) of the Criminal Code and dangerous operation of motor vehicle contrary to section 249 of the Criminal Code began on January 18, 2008. You pleaded not guilty to these charges.
(Joanne Stuart, Crowns response Page 3 of 22)
Even the reasonable belief of the Crown is in question?
[959] Her Worship Justice Healey, advise that there is no difference in one officer having reasonable cause to arrest and all officers having reasonable cause to arrest. Furthermore, she asserts that the officers had reasonable belief that the Applicant was impaired by drugs!!!!
This is a fallacy in logic!
[960] If one let S be the universal set be the union of all five officers similar reasonable cause to arrest. If you let X1, X2, X3,..., X5be the respective reasonable cause of the five officers; then it fellows that S is equal to the union of all the Xi where i is an element of {1,2,3,4,5}. Let officer , which is officer 1399 have reasonable cause to arrest be X1.
[961] It is self evident that the number of elements in the universal set S is 5.
It is self evident that X1 is one element.
[962] The number of element in S is not equal to the number of element of X1 nor is X1 a proper subset of S. 1 is not equal to five. Therefore S is different from X1. X1 is in-fact a subset of S and is contained in S.
[963] The applicant concede that it does not matter if one officer has reasonable cause to arrest or all officers has reasonable cause to arrest. But, the essential question to answer is, is Officer Broughton reasonable cause to arrest a proper subset of S or even an element of S?
[964] However, there is a difference when some officers say that all officers had reasonable cause and some officer say that not all officers had reasonable cause. Mainly; 4 officers said officer Broughton had reasonable ground, but Mr. Broughton stated in open court on record under oath that he did not have reasonable grounds, this is the contradiction in the totality of the all the officers reasonable grounds to arrest the Applicant. This is a contradiction which breeds a fallacy in the premise which compose the justification or reasonable cause to arrest. This fallacy destroys the premise, which destroys the justification for a lawful arrest. Thus rendering the arrest unlawful for the concatenated given justification to arrest of all the officers.
[965] Within the context of the unlawful warrantless arrest. Four of the five Officers in question stated that Officer Broughton had reasonable objective cause to arrest and was part of the collective. Officer Broughton states that he did-not have reasonable objective cause to arrest and was not a part of the collective, but he had justification to conduct a traffic stop of the Applicant. Officer Williams the acting sergeant, one of the four Officers states that he does-not know what the Applicant was charged for and was confused about what the accused was arrested for, in fact he infers in the audio log from YRP that he was not going to arrest for D.W.I./DRUGS but other Criminal Code violations. Officer Broughton states in one of his investigative paper that Officer 1399 (Officer Monk) had reasonable cause to arrest the Applicant. Six hours later Officer Stribbell changes this to all the Officers had collective reasonable cause to arrest the Applicant. Within the context of the aforementioned facts;
(a) is a changing reasonable objective cause consistent with the legal definition of reasonable objective grounds to arrest?
(b) is a changing reasonable objective cause consistent with the legal notion of reasonable honest belief?
(c) is the contradiction between Officer Broughton’s and the other four Officers collective reasonable objective cause consistent with the legal definition of reasonable objective grounds to arrest?
(d) is the contradiction between Officer Broughton’s and the other four Officers collective reasonable objective cause consistent with the legal notion of reasonable honest belief?
Therefore, the officers justification for arrest is not objective but arbitrary and based on legal fraud, in the affiant’s opinion.
UNLAWFUL WARRANTLESS ARREST CONCLUSION:
[966]
“450. (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence,
(b) a person whom he finds committing a criminal offence, or
(c) a person for whose arrest he has reasonable and probable grounds to
believe that a warrant is in force within the territorial jurisdiction in which the person is found. “
(R. v. Storrey, [1990] 1 S.C.R. 241)
[967]
“It is important to note that the neighbour did not state and did not know that the three men committed the robbery. The only information the neighbour possessed was that of the identity of the three men the victim had seen drinking beer the night before. There was absolutely no evidence connecting the three accused with the crime. It came as no surprise that the trial judge found that there was no basis for the police statement that they had reasonable and probable grounds to believe the accused had committed the crime. Indeed, one of the officers testified that: "We arrested them to determine whether they actually did it or not". Thus the arrest in the Duguay case could not and did not comply with the requirements of s. 450(1) of the Code and the
arrest was unlawful. Against this background of an unlawful arrest, the Court of Appeal then considered whether the detention of the accused violated s. 9 of the Charter. It was in this context that MacKinnon A.C.J.O. stated that an arrest which had been made solely to assist in an investigation was an arrest made for an "improper purpose". The statement goes no further than confirming that an otherwise unlawful arrest cannot be justified on the grounds that it was necessary in order to further the investigation of the crime. It should not be taken as establishing a principle that whenever a lawful arrest is made, in circumstances where the police intend to do further investigation, that the arrest should then be considered to have been made for an improper purpose.”
(R. v. Storrey, [1990] 1 S.C.R. 241, page# 12)
• under 2.) EVIDENCE, systemic racism/racial profiling was established;
• under 4.) BIAS or REASONABLE APPREHENSION OF BIAS, bias against the Appellant in the process was establish;
• the arrest was warrantless;
• the arrest was not according to legislation;
• the arrest was improper;
• their was no reasonable to cause to arrest;
• pursuant to legislation, the arrest was unlawful;
• pursuant to R. V. KHAN, the arrest was unlawful;
• officers were in violation of the Applicant’s Section 10(a), 10(b), 7 and 15 Charter of Rights and Freedom.
[968] The following is a part of the Officer Monk’s (Arresting Officer), cross examination concerning the the warrantless arrest:
[969]
“Q. What crime was I continuing to commit?
A. Once again sir, I don't understand the nature
of this question. We were - we were - we were investigating an
allegation of impaired driving.
Q. Right.
A. So at that - that point we weren't sure if you
'ad committed any offence ...
Q. Okay.
A. .... but we were investigating to see if you had. “
(R. Monk - Cr-ex, July 23, 2008, Trial Transcript for 07-02559, page 88)
[970]
“Q. After I showed my driver's licence - my
driver's licence, vehicle insurance and ownership to Officer
Bird, was I allowed to leave?
A. No.
Q. So was I being detained?
A. Yes, sir. As I say before, we were
investigating a complaint of impaired driving.
Q. Was I allowed to leave?
A. No.
Q. SO was I being detained?
A. Yes, you were.
Q. Okay. Upon my detainment before my arrest do
you know if that was about 20 minutes?
A. I approximate it around there, yes.
Q. About.
A. Fifteen, 20 minutes.
Q. Did you inform me that I was being detained?
A. No, sir. As I said before we weren't able to
_ elicit any response from you while we were there.
Q. But did you ...
A. You didn't ....
Q. ...inform me? This doesn’t require a response.
A. No.
Q. You're informing me. While being detained did
you read me my rights to counsel and caution?
A. Personally, no, I didn't.
Q. Did anyone else read me my rights to ....
A. Once again, I can't comment on what other
officers did if I didn't notice it.
Q. I'm just asking you if you witnessed ....
A. No, I did not.
Q. Did you make any demand on me to provide
forthwith a sample of breath?
A. No, I didn't because I didn't - I made no
observations in regards to alcohol.
Q. But - I mean - you did - or somebody did call the D.R.E.
A. Yes, sir. A - a D.R.E. would have been
_ utilized had we - had there been - reasonably that you would
have been cooperative with that test, but given the
uncooperative nature of yourself during the - our interaction it
was deemed that there - there was no point in contacting a drug
recognition expert.
Q. Yes, but like I asked you before ...
A. Mm-hmm.
Q. .... I asked you if you asked me to take a
breathalyser test?
A. Well a breathalyser test has nothing to do with
the D.R.E. test, sir.
Q. Okay. Did you ask ....
A. There's no - we didn't ask you to do either.
Q. You didn't ask me to do either?
A. No. I didn’t ask you to do the D.R.E. test
because you would have been under no compulsion to do so at that
time.
Q. At what time?
THE COURT: Back then, remember we - I think the
officer means back when this happened because the
law as - as we discussed before lunch, the laws
change.
MR. FERRON: Oh, okay, okay.
A. Yes.
MR. FERRON: Okay. I'm sorry.
Q. Okay. What reasonable justifiable grounds did
you have for detaining me?
A. Sir, once again we were investigating a
complaint of an impaired driver as called in by a citizen. We
had the - the - the driving evidence that he was providing to
our dispatcher. And once we - we arrived on scene we obtained
further evidence that there was some impairment either by way of
what we suspected by way of a narcotic or drug, given your
glossy eyes, your uncooperative nature and profuse sweating.
And we believed that was the grounds to detain you for further
investigation to that effect.
Q. When you say uncooperative what do you mean exactly?
A. You refused to even acknowledge our presence
there with you, sir. You chose to stare straight ahead and not...
Q. So when I produced ...
A. .... look at us.
Q. .... my driver's licence, insurance, and
ownership, was that being uncooperative?
A. Well you didn't produce that - those documents
to me sir, so I'm - I'm not sure at what point you did produce
those to the detective.
Q. But you had a discussion with the officers, didn't you?
A. Yes.
Q. You didn’t discuss that?
A. No.
Q. Okay. Before my arrest what was I doing?
A. You were seated in your car staring straight ahead.
Q. Okay. Before my arrest what was I saying?
A. Nothing.
Q. Nothing. Doing nothing? Before my arrest was
I obstructing justice?
A. You weren't cooperating with our investigation,
but I wouldn't go as far as saying you were obstructing at that
point.
Q. Before my arrest was I breaking any laws?
A. I believe I've covered that, sir. I've - I've
answered that question twice now.
Q. Okay. Did you have a warrant for my arrest?
A. No.
Q. Before my arrest did you need to establish my identity?
A. Yes.
Q. Yes.
A. Well before you were arrested - we need to?
Q. Yes, before.
A. No, we didn't. We didn't need to establish
your identity in order to affect an arrest, no.
Q. Before my arrest did you need to protect or
keep evidence?
A. I'm not sure I understand.
Q. Evidence. Evidence.
A. I understand evidence sir, but before your arrest.
Q. Yes, before my arrest.
A. Well anything I ...
Q. Did you have any need ...
A. ...would have noticed .
Q. ...to protect or keep evidence.
A. Let me - let me finish, sir. Anything I would
have seen or observed there that I would have deemed to be of
value for evidence I would have preserved or secured, yes.
Q. Okay. Upon my arrest did you inform me of my
reason for being arrested?
A. Yes, I did.
Q. Did you read me my rights to counsel and
A. I didn't have an opportunity because we became
volved in an altercation at that point.
Q. How long was I detained for, sir? “
(R. Monk - Cr-ex, July 23, 2008, Trial Transcript for 07-02559, page 88-93)
Information Nos.: C51190
court of appeal for ontario
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
WAYNE FERRON Applicant
CITATION - VOLUME V
APPLICATION RECORD FOR APPLICATION
FOR CONSTITUTIONAL QUESTION
5.) UNLAWFUL WARRANTLESS ARREST
WORK CITED
1. (POLICE POLICY, YORK REGION POLICE SERVICES WEB PAGE, page 1)
2. (Author: 1079 Broughton Shawn, INITIAL OFFICER REPORT IMPAIRED, Related date: Wed, 28 Mar. 2007 at 00:55)
3. (Author: 529 STRIBBELL GREGORY K, PROSECUTION SUMMARY -GUILTY PLEA SYNOPSIS, WA YNE FERRON, Related date: Wed, 28 Mar. 2007 at 06:54)
4. (D. BURD - Cr. ex in Chief, May 9, 2008 Trial Transcript; page 83-86, line 15-32)
5. (D. BURD - Cr. ex, May 9, 2008 Trial Transcript; page 100-101, line 15-32, line 5-10)
6. (D. BURD - Cr. ex, May 9, 2008 Trial Transcript; page 99-100)
7. ib
7.1.1.
8. (Officer Broughton- Cr. ex, January 18, 2008 Trial Transcript, page 59-60)
9. (POLICE POLICY, YORK REGION POLICE SERVICES WEB PAGE, page 1)
10. (S. Broughton - Cr. ex, May 9, 2008 Trial Transcript; page 37-41)
11. (THE POLICE OFFICERS MANUAL of Criminal Offence and Criminal Law, Gary P. Prodrigues, CARSWELL 2000, page 66 - page 73)
12. (ANNOTATIONS, 2009 MARTIN’S Annual Criminal Code, page 976)
13. (Officer Burd - Cr. ex, May 9, 2008 Trial Transcript, on page 95&96, line 5-32)
14. (ANNOTATIONS, 2009 MARTIN’S Annual Criminal Code, page 978)
15. (J. Monk - Cr. ex, July 23, 2008 Trial Transcript; page 99-100)
16. (S. Broughton - Cr. ex, May 9, 2008 Trial Transcript; page 49, line 15-32)
17. (Officer Broughton (#1079) - Cr. ex, January 18, 2008 Trial Transcript, On page 64
18. (ANNOTATIONS, 2009 MARTIN’S Annual Criminal Code, page 976)
19. (Officer Burd’s Cr-ex, May 9, 2008 Trial Transcript, on page 95&96, line 15-32, line 5-31)
20. (May 9, 2008 Trial Transcript, on page 17&18, line 7-32, line 5-14)
21. (May 9, 2008 Trial Transcript, on page 84, line 7-21)
22. (Sgt Williamson Cr-ex, 23rd of July 2008 Trial Transcript continuation, page# 33&34, line 24-32 & line 1-19)
23. ((SUPREME COURT OF CANADA, Chartier v. Att. Gen. (Que.), [1979] 2 S.C.R. 474, page 500)
24. (Officer Monk Cr-ex, May 9, 2008 Trial Transcript, on page 92, line 1-15)
25. (R. v. Bernshaw (1995), 95 C.C.C. (3d); page 3, para [15], (2006 CanLii 10219))
26. ib
27. (Officer Monk, July 23, 2008 Trial Transcript on page 86, line 5-20)
28. (D.R.E. unit (SPARE 45), Transcription of the recording of police radio Transmissions of York Regional Police, page 4, 5)
29. ( Staff Sergeant Bradley Bulmer, MEDIA RELEASE, Corporate Communications YRP383(09/04E) , October 10, 2008 10, 2008 )
30. (R. v. Pozniak, 2008 ONCJ 59)
31. (Officer Monk Cr-ex, May 9, 2008 Trial Transcript, on page 92, line 1-15)
32. (The Federal Prosecution Service DESKBOOK, section 11.2, page 84-85)
33. (R, V. Wayne FERRON, REASONS for JUDGMENT/SENTENCING, September 26, 2008, page 19)
34. (Honourable Justice Healey, October 14, 2009 Application Transcript for 07-02559, page 35, line 20-36)
35. Quévillon c. R. 2007 QCCQ 9246, page 5 and 6)
36. (Honourable Justice Kenkel, September 26, 2008, REASONS FOR JUDGEMENT, page 10-11, line 25-32, line 1-2)
37. (Honourable Justice Kenkel, September 26, 2008, REASONS FOR JUDGEMENT, page 12-13, line 31-32, line 1-7)
38. (Honourable Justice Kenkel, September 26, 2008, REASONS FOR JUDGEMENT, page 14-15, line 27-30, line 1-24)
39. (R. v. Hebert, [1990] 2 S.C.R. 151, page 51)
40. (Sopinka, Lederman and Bryant THE LAW OF EVIDENCE IN CANADA, 3d, Alan W. Bryant, Sidney N. Lederman, Michelle K. Fuerst, ISBN978 0 433 45724-4
41. page 22-23)
42. (R. V. Lavin, on page 279 and 280 , para 4)
43. (Moore C. La Reine (R. V. Moore), of page 196 to page 197, para 1)
44. (In Moore C. La Reine (R. V. Moore), is states on page# 209, para 5 and 6)
45. ( R. v. Mellenthin, page 2 - 15, File No.: 22508. 1992: May 29; 1992: November 19. Present: Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ. on appeal from the court of appeal for alberta)
46. (Officer Broughton (1079), INITIAL OFFICER REPORT)
47. (Officer Stribbell (529), PROSECUTION SUMMARY-GUILTY PLEA SYNOPSIS)
48. (Staff Sergeant Bruce Ringler (193), Typed OFFICER’S NOTES, page 32 at 12:45 PM)
49. (Officer Stribbell (529), Typed OFFICER’S NOTES, page 14 at 12:45 AM)
50. (Officer Stribbell (529), SUPPLEMENTAL REPORT )
51. (Officer Stribbell (529), SHOW CAUSE HEARING REPORT, page 1 comment box)
52. ( BLACK LAW DICTIONARY, Eighth Edition, Bryan A. Garner, Editor in Chief page 686)
53. (Blacks Law Dictionary, page 693)
54. (DCst Broughton (1079), TYPED OFFICER’S NOTES, on page 28, para 3 & para 4)
55. (DCst Broughton (1079), January 18, 2008, Trial Transcript, on page 42, line 4-12)
56. (DCst Broughton (1079), January 18, 2008, Trial Transcript, on page 57, line 15-22)
57. (Officer Broughton, Typed Officers Notes, page 30, at 00:24, line 13-19. Or Officer Broughton (#1079) Notes, page 84)
58. (May 9, 2008, TRIAL TRANSCRIPT, page 52, line 9 -16)
59. (DCst Broughton (1079), May 9 TRIAL TRANSCRIPT, page 42, line 10-20)
60. (Officer Monk, Typed Officers Notes, on 28th of March 2007, page 10, line 13-15 at 00:13)
61. (Officer Williamson(1108), Typed Officers Notes, on 28th of March 2007, page 21, line 7-43 at 00:13)
62. (Officer Brown, Typed Officers Notes, on 28th of March 2007, page 2, line 9-13 at 00:13)
63. (Officer Broughton, May 9th, 2008 Trial Hearing Transcript. On page 41, line 26-32)
64. (Author: 1079 Broughton Shawn, INITIAL OFFICER REPORT IMPAIRED, Related date: Wed, 28 Mar. 2007 at 00:55)
65. (Author: 529 STRIBBELL, GREGORY K PROSECUTION SUMMARY -GUILTY PLEA SYNOPSIS, WA YNE FERRON, Related date: Wed, 28 Mar. 2007 at 06:54)
66. (CRIMINAL LAW and the CANADIAN CRIMINAL CODE, Third Edition, page 107, para 3)
67. (Sgt Williamson Cr-ex, July 23, 2008 Trial Transcript, on page 34, line)
68. (ANNOTATIONS, 2009 MARTIN’S Annual Criminal Code, page 976)
69. (C. Brown - Cr-ex, July 23, 2008, Trial Transcript for 07-02559, page 58)
70. (R. v. Peralta-Brito; page 18 & 19)
71. (Ms. Goodier, April 28, 2008, Application Transcript for 07-02500/07-02559, page 11)
72. (Quévillon c. R. 2007 QCCQ 9246, page 5 and 6)
73. (Officer Broughton, Typed Officers Notes, page 30, at 00:24, line 13-19. Or Officer Broughton (#1079) Notes, page 84)
74. DCst Broughton (1079), May 9, 2008 Trial Transcript, on page 56)
75. (R. v. Storrey, [1990] 1 S.C.R. 241, page 12)
76. (THE POLICE OFFICERS MANUAL of Criminal Offence and Criminal Law, Gary P. Prodrigues, CARSWELL 2000, page 100)
77. (THE POLICE OFFICERS MANUAL of Criminal Offence and Criminal Law, Gary P. Prodrigues, CARSWELL 2000, page 100)
78. (Officer Broughton, May 9th, 2008 Trial Hearing Transcript. On page 41, line 26-32)
79. (Officer Burd, May 9th, 2008 Trial Hearing Transcript. On page 94, line 10-15)
80. (Officer Burd Cr - ex.23rd of July 2008, Trial Transcript, page# 98 & 99, line 10-17, line 1-7)
81. (R. v. Hebert, [1990] 2 S.C.R. 151, page 51)
82. (March 28, 2007, APPEARANCE TRANSCRIPTS, R. V. FERRON (07-02500), page 2-9)
83. (Joanne Stuart, Crowns response Page 3 of 22)
84. (R. Monk - Cr-ex, July 23, 2008, Trial Transcript for 07-02559, page 88)
85. (R. Monk - Cr-ex, July 23, 2008, Trial Transcript for 07-02559, page 88-93)
All of which is respectfully submitted.
Date:..
_________________________
Wayne Ferron
Email: ferronwayne@gmail.com
TO: The Clerk of the Court--Registrar
Osgoode Hall
130 Queen Street West
Toronto, Ontario, M5H 2N5
Tel: 416 327 5020
Fax: 416 327 6032
AND TO
The Attorney General of Ontario
Constitutional Law Branch
4th floor
720 Bay Street
Toronto, Ontario M5G 2K1
fax: 416 326 4015
AND TO:
The Attorney General of Canada
Constitutional Law Branch
Suite 3400, Exchange Tower
Box 36, First Canadian Place
Toronto, Ontario M5X 1K6
fax: 416 973 3004
court of appeal for ontario
|
R -versus- Wayne Ferron |
Court file no.: C51190 |
|
|
COURT OF APPEAL FOR ONTARIO
PROCEEDING COMMENCED AT Osgoode Hall 130 Queen Street West Toronto, Ontario, M5H 2N5
DOC-X VOLUME V APPLICATION RECORD FOR APPLICATION FOR CONSTITUTIONAL QUESTION 5.) UNLAWFUL WARRANTLESS ARREST
Wayne Ferron Email: ferronwayne@gmail.com
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