COURT OF APPEAL FOR ONTARIO DATE: 20240328 DOCKET: COA-23-CR-0670
Hourigan, Thorburn and Favreau JJ.A.
BETWEEN
His Majesty the King Respondent
and
Mark Cameron Appellant
Counsel: Jon Doody, for the appellant Andrew Hotke, for the respondent
Heard: March 12, 2024
On appeal from the conviction entered on June 25, 2021 by Justice M.S. James of the Superior Court of Justice, sitting without a jury.
A. Overview
1The appellant, Mark Cameron, was found guilty of break and enter, possession of a firearm while committing a robbery, use of a firearm while committing a robbery and possession of cocaine.
2At the conclusion of the hearing, the panel advised that the appeal was dismissed with reasons to follow. These are the reasons.
3The convictions arose from a robbery that took place in the early hours of May 31, 2017, on a rural road near Barry’s Bay, Ontario. As the police were approaching the house where the robbery had just occurred, they saw a vehicle leaving the area. The police stopped the vehicle and saw that the appellant was the driver. After briefly detaining the appellant and taking his car keys, the police arrested him. The subsequent search of the appellant’s vehicle led to evidence linking the appellant to the robbery. The police also found cocaine.
4Prior to trial, the appellant brought a Charter application challenging his detention and arrest. The trial judge dismissed the application and ultimately convicted the appellant.
5The appellant appeals his conviction on the basis that the trial judge made several errors in his Charter ruling. Specifically, he argues that the trial judge erred in finding that:
a. The police did not violate his s. 8 Charter rights when they took his keys to the car during the initial investigative detention;
b. The police sufficiently informed him of the reason for the investigative detention and therefore did not violate s. 10(a) of the Charter;
c. The police had reasonable and probable grounds for arresting the appellant;
d. The police did not violate the appellant’s s. 8 Charter rights when they searched the appellant’s vehicle, because the search was incidental to a lawful arrest; and
e. The police did not violate s. 10(b) of the Charter when they delayed advising the appellant of his right to counsel for 11 minutes after his arrest.
6I see no errors in the trial judge’s Charter ruling.
7I start with a brief summary of the events as they unfolded on the night of the robbery, followed by consideration of each of the issues raised by the appellant.
B. Background Facts
8On May 31, 2017, soon after midnight, the Killaloe Detachment of the Ontario Provincial Police (the “OPP”) received information about a 911 call that had come from an address on a rural road near Barrie’s Bay. Four OPP officers left the detachment together in three police cruisers to attend the scene. Officers Chartrand and Anderson rode together in an unmarked cruiser. Officer Cotnam followed closely behind in a marked cruiser. Officer McPeak followed in a third cruiser, several minutes behind.
9While they were traveling to the address that had been provided, the officers received information that the woman who made the 911 call reported that there were four intruders in her home, that the intruders were armed with guns and knives, that the intruders were masked, and that someone in the house had been hurt by one of the intruders.
10While the officers were still traveling to the address of the reported robbery, sometime between 12:26 a.m. and 12:28 a.m., they were told that the intruders had left the residence.
11At around 12:29 a.m., Officer Chartrand, who was in the first cruiser heading to the scene, saw a vehicle making a U-turn in the driveway of the residence where the robbery was reported to have occurred. The vehicle, later identified as a 2017 black Jeep, was heading toward Officer Chartrand and the other police cruisers in the opposite lane. Officer Chartrand pulled in front of the Jeep as it came toward the cruiser. Over the radio, Officer Chartrand asked Officer Cotnam, who was in the cruiser immediately behind him, to investigate the Jeep, while he continued with Officer Anderson to the residence.
12Officer Cotnam stopped “nose to nose” in front of the Jeep. He then got out of his cruiser and approached the Jeep. As he did so, he recognized the appellant as someone he knew who had been involved in violent crimes. Officer Cotnam immediately radioed Officers Chartrand and Anderson and gave them the appellant’s name. Officer Chartrand told Officer Cotnam that he also knew the appellant, and that he and Officer Anderson would return immediately.
13Officer Cotnam then approached the driver’s side of the Jeep and told the appellant that the police were “investigating a serious incident”. He also told the appellant to give him the keys to the Jeep and to put his hands up on the ceiling of the vehicle. Officer Cotnam put the keys on the roof of the Jeep. Within one or two minutes, Officers Chartrand and Anderson returned. Immediately upon their return, Officer Chartrand walked over to the Jeep, recognized the appellant and then advised him that he was under arrest for assault.
14Around 12:32 a.m. or 12:33 a.m., the appellant was handcuffed, searched, patted down and placed in Officer Chartrand’s cruiser. Officers Chartrand and Anderson then did a quick search of the Jeep to look for weapons. They found a number of items, including a duffel bag containing two knives, two wallets and a cell phone.
15Around that time, Officer McPeak arrived at the scene in her cruiser. She and Officer Cotnam then left to go to the residence where the robbery had occurred.
16After Officer Chartrand finished searching the Jeep, he and Officer Anderson drove their cruiser, with the appellant in the back seat, to a location that was some distance away from the site of the robbery.
17At 12:44 a.m., which was 11 minutes after the appellant’s arrest, Officer Anderson read the appellant his rights as he sat in the back of the cruiser. The appellant said he did not wish to speak to a lawyer.
18Some time later, the appellant was brought back to the police station. He was read his rights at least twice more and eventually asked to speak to counsel later that morning.
19Ultimately, the police obtained a search warrant for the cell phone and the Jeep’s GPS. The evidence in the cell phone and the GPS linked the appellant to the robbery and to other suspects who were arrested and who had admitted to participating in the robbery.
20At trial, the appellant brought an application to exclude the evidence resulting from the search of the Jeep. The trial judge dismissed the appellant’s application, finding that the police did not violate any of the appellant’s Charter rights in the period between when they stopped the Jeep and advised the appellant about his right to counsel.
21The trial judge subsequently found the appellant guilty, largely based on the cell phone and GPS evidence. He found that the appellant was involved in planning the robbery. While the appellant did not commit the robbery himself, he was found guilty as an aider and abettor based on his participation in the robbery.
C. Issues and Analysis
22As set out above, the appellant raises five issues on appeal related to his detention and arrest. At the hearing, the appellant’s counsel primarily pressed two issues, namely whether there were reasonable and probable grounds for his arrest and the delay in advising of his right to counsel after the arrest. Below, I nevertheless address all five issues raised by the appellant in his factum, given than none were formally abandoned.
23In addressing each issue individually, it is important to remember the overall context in which the appellant’s detention and arrest occurred. The police were responding to a call that suggested that a violent robbery involving four suspects, armed with knives and firearms, had just occurred in the immediate vicinity of the location where the appellant’s car was stopped. The police officers were told that four armed and potentially violent intruders had just left the residence where they saw the appellant making a U-turn. This was a dark and isolated area. The officers, including Officers Chartrand and Cotnam, testified that, given the context, they were concerned that the appellant posed a safety risk and that there were potentially three other suspects in the immediate vicinity who also posed a risk to their safety.
24While the trial judge addressed each of the alleged Charter violations separately, the detention and arrest occurred in a very short and dynamic timeframe and this overall context was evidently relevant to the trial judge’s analysis.
25I turn to the individual issues raised on appeal, bearing in mind that the trial judge’s identification and application of the legal principles is a question of law to be reviewed on a standard of correctness, while appellate intervention is only warranted on findings of fact if the trial judge committed a palpable and overriding error: R. v. Donnelly, 2016 ONCA 988, 135 O.R. (3d) 336, at para. 43.
Issue 1: The taking of the Jeep keys
26The appellant argues that the trial judge erred in finding that the police did not breach his Charter rights when Officer Cotnam took his keys immediately after he was stopped. I disagree.
27In his reasons, the trial judge explained that it was “proper” for Officer Cotnam “to consider the safety risks associated with an attempt to flee” by the appellant when Officer Cotnam took his keys. The trial judge further found that the “seizure of the key was within the scope of A/Sgt. Cotman’s duties; it was reasonable and necessary”.
28I see no s. 8 Charter breach in this respect. The power to conduct a safety search incident to an investigative detention arises in cases where officers believe on reasonable grounds that there is an immediate risk to their own safety, or the safety of others: R. v. Buakasa, 2023 ONCA 383, at paras. 31-32, 55-56. Here, Officer Cotnam’s evidence was that, based on his knowledge of the appellant, he was concerned that the appellant would try to flee and injure him. These safety concerns were supported by the circumstances under which the appellant was detained and Officer Cotnam’s knowledge of the appellant.
29Ultimately, Officer Cotnam had a reasonable basis for concern over his safety and the taking of the appellant’s keys was minimally invasive and justified in the circumstances.
Issue 2: The sufficiency of information given to the appellant at the time of his detention
30As reviewed above, at the time of the investigative detention, Officer Cotnam told the appellant that the police were “investigating a serious incident that happened in the area”. He did not provide any further information during the one to two minutes before Officer Chartrand returned to the scene and arrested the appellant.
31The appellant argues that this constituted a breach of his s. 10(a) Charter right to be informed promptly of the reasons for his detention. I disagree.
32The trial judge did not explicitly consider the issue of whether the appellant was sufficiently informed of the reason for his detention in the one to two minute period between the time when his vehicle was stopped and the time when Officer Chartrand arrested him. However, the trial judge recounted Officer Cotnam’s reasons for restricting the explanation for the detention, which included not wanting to “trigger a confrontation”, without the other officers being present. The trial judge then concluded that considering the context of the detention, “in particular the safety considerations and the very brief period of time”, the “suggestion of a s. 9 or 10 Charter violation evaporates”.
33Section 10(a) of the Charter requires that a person detained by the police be promptly advised of the reason for the detention. However, valid safety concerns can justify a delay in advising a person of the reason for a detention: R. v. Gonzales, 2017 ONCA 543, 385 C.R.R. (2d) 115, at para. 128.
34In Gonzales, at para. 128, the delay was seven minutes. In this case, the delay between the investigative detention and the arrest was one or two minutes. In his evidence, Officer Cotnam gave a clear explanation for not fully informing the appellant of the reason for the detention. In particular, he stated that given the information that there were four intruders with guns and knives, and that he was in a dark and isolated location, he was concerned that providing more information may escalate the situation. He stated that, based on his experience, if the appellant felt that he was cornered or caught, he might try to escape or flee.
35In the circumstances, I see no reason to interfere with the trial judge’s conclusion that the appellant’s s. 10(a) Charter rights were not violated. The delay between the detention and the arrest was very brief and Officer Cotnam had legitimate concerns for his safety during that intervening period.
Issue 3: The grounds for the appellant’s arrest
36In the oral argument before this court, the appellant’s counsel focused much of his submissions on this ground of appeal. He argued that the trial judge erred in finding that Officer Chartrand had reasonable and probable grounds for arresting the appellant. Specifically, he argued that the primary basis for the appellant’s arrest was the police’s knowledge of his criminal record and that this was insufficient to form the basis for finding that there were reasonable and probable grounds for the arrest. He suggested that this was akin to arresting a person who happens to be close to a crime scene on the basis that they have a criminal record.
37In my view, the appellant mischaracterizes the trial judge’s reasons for finding that the police had reasonable and probable grounds for arresting the appellant. In his reasons, the trial judge clearly stated that he looked at the cumulative circumstances known to the police at the time of the arrest, and that they were sufficient for finding that there were reasonable and probable grounds for the arrest. The trial judge described those circumstances as follows:
The question is whether P/C Chartrand’s subjective belief that he had RPG to arrest Mr. Cameron was objectively reasonable in the circumstances. In my view, the factors that P/C Chartrand identified as informing his belief that RPG existed were rationally capable of supporting his subjective belief. Those factors are to be assessed in their totality. They are cumulative.
This was a sparsely populated, rural area. It was after midnight. There was no traffic. P/C Chartrand knew the suspects had just left the house. As he approached the subject residence, a vehicle performed a U-turn near the driveway of the house they were looking for. P/C Chartrand knew from the dispatcher that someone had been injured. When P/C Chartrand returned to where the Jeep was stopped, he recognized Mr. Cameron immediately upon approaching the vehicle. He knew Mr. Cameron as a drug user and enforcer and as someone who could be violent. Mr. Cameron’s presence in the middle of the night, in a different community from where he lived, in the immediate proximity of where a serious crime had just been committed, were significant objectively-reasonable factors. [Emphasis added.]
38I see no error in the trial judge’s analysis.
39In deciding whether a warrantless arrest contravenes s. 9 of the Charter, the court is to consider whether the arresting officer had subjective reasonable and probable grounds on which to base the arrest, and then whether those grounds were justifiable from an objective point of view: R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Fyfe, 2023 ONCA 715, 432 C.C.C. (3d) 145, at para. 52.
40In this case, the issue is whether the grounds for arresting the appellant were justified from an objective point of view. In considering the objective component of reasonable and probable grounds, as recently held by this court in R. v. Harvey, 2024 ONCA 47, at para. 25, the inquiry “proceeds from a holistic consideration of all of the facts” and “[i]t is not a matter of parsing each factual occurrence seriatim to determine whether or precisely when reasonable and probable grounds arose”. As held in Fyfe, at para. 62, this inquiry is based on the “totality of the circumstances” or the “cumulative effect of the totality of the circumstances”.
41In addition, in the context of reasonable and probable grounds for an arrest, a suspect’s criminal history or past record of violence can be relevant and form part of the cumulative circumstances supporting an arrest: Storrey, at p. 250.
42The trial judge’s approach to the circumstances of the appellant’s arrest in this case is consistent with the law. Contrary to the appellant’s position, he was not only arrested because he was known to the police and because of his proximity to the scene of the robbery. There were many other factors that justified the arrest, including that he was seen making a U-turn near the driveway of the residence where the robbery occurred, that the police had seen no other vehicles on the road on their way to the scene and that they were told there were four armed suspects who had just left the house. With respect to the appellant, the police were not only aware of his previous record, which included violent offences, but that he was approximately 80 kilometers away from his known address. Accordingly, in my view, the trial judge made no error in finding that these cumulative circumstances objectively justified the appellant’s arrest.
Issue 4: The lawfulness of the search
43The appellant concedes that there is no basis for finding that the search of the Jeep was unlawful if the arrest was lawful. Given the finding that the arrest was lawful, it is therefore not necessary to address this issue.
Issue 5: The timing of the right to counsel
44The appellant submits that the trial judge erred in finding that the 11 minute delay in advising him of his right to counsel was not a breach of his s. 10(b) rights. I disagree.
45In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 37, the Supreme Court confirmed that s. 10(b) of the Charter guarantees that, once an individual is detained, they have the right to retain counsel and to be advised of that right without delay. The court interpreted “without delay” to mean “immediately”: Suberu, at para. 41. However, the obligation to advise a suspect who is detained of the right to counsel “immediately” can be subject “to officer or public safety”: Suberu, at para. 42; R. v. Rover, 2018 ONCA 745, paras. 26-27; R. v. Pileggi, 2021 ONCA 4, paras. 61-62.
46In Rover, at para. 26, Doherty J.A. explained that s. 10(b) jurisprudence has “always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety or the preservation of evidence”. He further explained, at para. 27, that “general or non-specific” concerns cannot justify delay. Rather, the police can only delay “after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel”.
47In this case, the trial judge considered the evidence of the arresting officers regarding their reasons for the 11-minute delay in advising the appellant of his right to counsel. He described their evidence as follows:
After Mr. Cameron was arrested, and after the Jeep was searched along with the duffel bag, P/C Chartrand and P/C Anderson left the location where the Jeep was parked without having provided Mr. Cameron with a statement respecting his right to counsel. P/C Chartrand said his usual practice was to read the caution from a card he carries in his pocket and to make notes of the responses. He said he felt like they were sitting ducks in the area where the Jeep had been stopped, with the possibility of armed suspects nearby. They were standing in a pool of light from the vehicle headlights, surrounded by darkness. His information was that the suspects had just left the house and there was a substantial possibility that they were in the immediate area. He felt it wasn’t safe where they were standing. P/C Anderson said he was worried about getting shot at and not knowing where to return fire. P/C Chartrand and P/C Anderson left that location with Mr. Cameron handcuffed in the backseat and drove to where P/C Chartrand said it was safer and where he could write some notes.
48He further found that Officers Chartrand and Anderson did not try to elicit any evidence from the appellant during this 11 minute delay.
49In the circumstances, I see no error in the trial judge’s conclusion that the delay in providing information about the right to counsel to Mr. Cameron was caused by concerns over officer safety and that those concerns were legitimate in the context of this case. The officers’ evidence demonstrated that they turned their mind to the issue and that their concerns were legitimate.
D. Disposition
50It is for these reasons that the panel dismissed the appeal.
Released: March 28, 2024 “C.W.H.”
“L. Favreau J.A.”
“I agree. C.W. Hourigan J.A.”
“I agree. Thorburn J.A.”
