Court File and Parties
Court File No.: Toronto 15-35006219 Date: 2016-04-25 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Wisdom Lubansa
Before: Justice M. Speyer
Heard on: January 13, 14, 15, 19, 20, 26, 27, 28, 2016
Reasons for Judgment released on: April 25, 2016
Counsel:
- Paul Vlassis, for the Crown
- Nana Yanful, for the accused Wisdom Lubansa
M. SPEYER, J.:
I. INTRODUCTION
1Wisdom Lubansa is charged with two counts of possession of counterfeit marks (Canadian citizenship cards and Canadian social insurance number cards) contrary to section 376(2)(a) of the Criminal Code; one count of possession of property (a licence plate) valued under $5000 knowing it was obtained by the commission of an indictable offence contrary to s. 354(1) of the Criminal Code; and four counts of defrauding various banks of money of a value exceeding $5000 contrary to s. 380(1)(a) of the Criminal Code. He was also charged with laundering proceeds of crime, possession of proceeds of crime valued at over $5000 and failing to comply with terms of a recognizance of bail. These last three charges were dismissed with the consent of the Crown as there was no evidence to support them.
2On November 8, 2014 Toronto Police Constables Huk and Nickerson arrested Mr. Lubansa for possession of licence plates obtained by crime. Following the arrest, Constable Huk conducted a search of Mr. Lubansa's vehicle and found various documents, including six counterfeit Canadian social insurance number cards and eight counterfeit Canadian citizenship cards. The police also found various banking documents from the Royal Bank of Canada, Bank of Nova Scotia, Bank of Montreal and Toronto Dominion Bank.
3Mr. Lubansa has brought an application to exclude from his trial all evidence obtained from the search of his vehicle pursuant to s. 24(2) of the Charter of Rights and Freedoms. He submits that the police unlawfully detained him when they conducted an investigation into his licence plate and driver's licence, and thereby breached his right to be free of arbitrary detention contrary to s. 9 of the Charter. He further submits that the warrantless search of his vehicle was unreasonable and a breach of s. 8 of the Charter. Lastly, he seeks a stay of all charges pursuant to s. 24(1) of the Charter on the basis that he was subjected to an unlawful level three or strip search at the police station. In the alternative Mr. Lubansa submits that the Crown has failed to prove beyond a reasonable doubt his guilt on the substantive charges.
4On consent of the parties, evidence on the Charter application was heard along with trial evidence by way of a blended trial and voir dire.
II. CHARTER APPLICATIONS
For the following reasons, I dismiss Mr. Lubansa's applications for exclusion of evidence and for a stay of proceedings.
A. Section 9: Detention and arrest of Mr. Lubansa
5On the morning of November 8, 2014, at approximately 2:55 a.m. Constable Paul Huk and Constable Brandon Nickerson were on routine patrol in a fully marked police cruiser in the area of Littles Road and Sewells Road in Scarborough. They drove past a community centre located at that intersection and observed a silver car in the parking lot with its headlights on. It was the only car in the parking lot. The area is primarily residential and there were no open businesses nearby. The community centre was closed. Constables Huk and Nickerson testified that in these circumstances, they found the car's presence to be suspicious and decided to investigate to find out who was in the car and what they were doing there. Constable Nickerson testified that he believed he had a duty under the Police Services Act to investigate any potential criminal activity related to the car or its occupants.
6Constable Huk drove into the parking lot and stopped the cruiser about 20 feet from the car, a 4 door Hyundai Sonata with plate number BTWD334. He could not see anyone in the car and noted that the driver's seat was reclined. Constable Huk used the in-car police computer to run the plate number through various police databases, including those from the Ministry of Transportation ("MTO"). He testified that he did this to find out who the car belonged to. From MTO records, he learned that plate BTWD334 was not authorized to be attached to any vehicle.
7In the meantime, Constable Nickerson approached the driver's side of the car and observed a male reclined in the driver's seat. The car's engine was running. It appeared to the officer that the male was sleeping. Constable Nickerson shone his flashlight into the car and observed four cell phones in the front passenger seat and centre console of the car. When he tapped on the window, the male sat up and rolled down the window. Constable Nickerson asked the male his name and what he was doing there. The male identified himself as Wisdom Lubansa. He said he had dropped his baby mother nearby and was sleeping there for the night because he had to pick her up early that morning. Constable Nickerson was not satisfied with this response.
8It was Constable Nickerson's evidence that he did not have any safety concerns and nor was he investigating any particular crime. He saw no signs of impairment or alcohol consumption by the accused. Nonetheless he was suspicious of what Mr. Lubansa was up to. His suspicion was based on the presence of multiple cell phones in the car, the unsatisfactory response by the accused, the time of morning and the fact that they were in a residential area with nothing open nearby. He testified that his initial suspicion was that Mr. Lubansa might be involved in drug related crime.
9Constable Nickerson then asked Mr. Lubansa to produce his driver's licence, ownership and insurance documents for his car. Mr. Lubansa provided his driver's licence and ownership, but stated he did not have his insurance slip. Constable Nickerson testified that he requested these documents to confirm the accused's identity, to ensure he was properly licenced and that there were no outstanding warrants or cautions for him.
10The vehicle ownership permit provided to Constable Nickerson named Wisdom Lubansa as the registered owner of a 2013 Hyundai Sonata, grey, 4 door sedan with an address of 3000 Victoria Park Ave. apt. 332 Scarborough. The plate portion of the permit named Jordan Duggan of Orangeville as the registered owner of plate BTWD334. The plate portion of the permit was not signed. The information on the plate portion of the permit was inconsistent with MTO records that indicated that the plates were unattached to any vehicle, meaning they were the property of the MTO.
11Constable Nickerson then entered Mr. Lubansa's name and driver's licence number into the police computer and learned from MTO records that Mr. Lubansa was an unlicensed driver. He learned from CPIC that Mr. Lubansa was on a recognizance of bail to reside at 22 Lynmont Drive, in Etobicoke. He also saw a brief report from the Dufferin County OPP that plate BTWD334 was linked to an identity theft. Because there was very little detail in this report, Constable Nickerson telephoned the Dufferin County OPP to obtain more information. He spoke to OPP Constable Kolodziechuk and learned that Jordan Duggan had reported to the OPP that he had received a recall notice from Hyundai for a 2013 Hyundai Sonata, plate BTWD334. Mr. Duggan had also received a letter from MTO requesting that he provide proof of insurance for this car. Mr. Duggan reported to the OPP that he never owned this car or plates and knew anything about them. On November 6, 2014, Mr. Duggan had attended at the MTO and terminated his purported ownership of these plates. Constable Kolodziechuk advised Constable Nickerson that because of Mr. Duggan's report, they had intended to flag the plates on CPIC as stolen, but had not yet done so.
12Upon receiving this information from the OPP, Constable Nickerson and Constable Huk discussed what they had learned and concluded that they had reasonable grounds to arrest Mr. Lubansa for possession of property (the licence plates) obtained by crime. At approximately 3:25 a.m., Constable Nickerson returned to Mr. Lubansa's car and advised him he was under arrest for this offence. He advised Mr. Lubansa of his right to counsel and cautioned him regarding any statement he may make. Mr. Lubansa advised he did not wish to speak to counsel and said that he had bought the car from a dealer in Ajax.
13Constable Nickerson then conducted a thorough search of Mr. Lubansa's person for any evidence, weapons, or means of escape. This was described as a level 2 search. He patted Mr. Lubansa's arms, torso and legs and checked the inside of his socks and pockets. He found nothing and put Mr. Lubansa in the back seat of the police car.
Applicable Legal Principles
14Section 9 of the Charter aims to protect individual liberty from unjustified state interference. The inquiry into whether a detention is arbitrary begins with an inquiry into whether police were acting within their lawful authority. A detention that is not authorized by law is arbitrary and violates s. 9: R. v. Grant, 2009 SCC 32, para. 20 and 54.
15The Supreme Court of Canada has recognized that police have limited statutory and common law powers to detain an individual for investigative purpose. The court adopted the test articulated in R. v. Waterfield, [1964] 1 Q.B. 164 by the English Court of Criminal Appeal (the Waterfield test) for whether a police officer has acted within his or her common law powers. Under the Waterfield analysis, to determine whether an officer's prima facie unlawful interference with an individual's liberty or property falls within his or her common law powers, a court must engage in two steps of analysis:
Does the police conduct in question fall within the general scope of any duty imposed on the officer by statute or common law?
If so, in the circumstances of this case, did the execution of the police conduct in question involve a justifiable use of the powers associated with the engaged statutory or common law duty?
See Waterfield, at pp. 170-171; R. v. Mann, 2004 SCC 52, at paras. 24-26.
16Duties of a police officer under s. 42 of the Ontario Police Services Act include preserving the peace; preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention; assisting victims of crime; apprehending criminals and other offenders and others who may lawfully be taken into custody; executing warrants that are to be executed by police officers and performing related duties. Police also have a common law duty to preserve the peace, prevent crime and protect life and property (R. v. Dedman, at p. 32).
17Under the second prong of the Waterfield test, an investigative detention must be reasonably necessary on an objective view of all the circumstances informing the officer's suspicion that there is a clear nexus between the prospective detainee and a recent or ongoing criminal offence. Factors to consider are: the extent to which the interference with individual liberty is necessary to perform the officer's duty; the liberty that is the subject of the interference; and the nature and extent of the interference: Mann, at para. 34.
18To be justifiable, the investigative detention must also be executed in a reasonable manner. The investigative detention should be brief and does not impose an obligation on the detained individual to answer questions posed by the police: Mann, at para. 45.
19The Waterfield analysis has also been applied to recognize a power of search incidental to investigative detention. The search must be reasonably necessary. The relevant considerations include the duty being performed, the extent to which some interference with individual liberty is necessary in the performance of that duty, the importance of the performance of the duty to the public good, the nature of the liberty being interfered with, and the nature and extent of the interference: Mann, para. 39.
Analysis
20Crown counsel concedes that in the approximately 30 minutes during which the police investigated Mr. Lubansa's car, the licence plates and his background, the accused was legally detained as he was not free to leave the parking lot.
21Defence counsel argues that the police arbitrarily detained Mr. Lubansa because there was no objectively reasonable basis to suspect he was involved in any particular crime. Moreover, the accused was on private property to which the Highway Traffic Act does not apply. Therefore, Constable Nickerson had no lawful basis to ask for his driver's licence and ownership or to investigate him through the police databases.
22On the evidence before me, I find that Constables Huk and Nickerson were acting within the scope of their duty when they detained and investigated Mr. Lubansa. The presence of his car, with its lights and engine on, in the middle of the night at a closed community centre in a residential neighbourhood would reasonably have attracted the attention of the police. In these circumstances the officers were required as part of their general patrol duties to investigate the car and its occupants for any potential criminal activity or safety issues. Accordingly, the first prong of the Waterfield has been met.
23Counsel for the defendant argued that Mr. Lubansa's prolonged detention fails to meet the criteria required under the second prong of the Waterfield test in that it was an unreasonable exercise of police powers. She points out that the police had not been alerted to any particular crime in the area, there no evidence that Mr. Lubansa had been drinking and driving or in need of medical assistance. Moreover, Constable Nickerson never expressed any public safety concerns. In those circumstances, she submits that Constable Nickerson was not lawfully justified in checking Mr. Lubansa's driver's licence and ownership documents. She argues that Constable Nickerson was simply acting on a hunch when he continued to detain Mr. Lubansa.
24I do not agree with this submission. First, it is true that Constables Huk and Nickerson were not investigating any particular crime when they initially detained Mr. Lubansa. Indeed, Constable Nickerson testified he was suspicions about what the accused was doing, but could point to no particular crime being committed or linked to Mr. Lubansa. However, the existence of a particular crime is not a pre-requisite to a lawful detention. As was explained by Justice F. Dawson in R. v. Vander Griend, [2015] O.J. No. 5675 (S.C.J.), para. 54, it is important to keep in mind the factual context within which Mann was decided. In Mann, police stopped and investigated an individual walking down the street because they suspected he was involved in a break and enter. At para. 17 of the Mann decision, Justice Iacobucci was careful to point out that the court's duty was to "lay down the common law governing police powers of investigative detention in the particular context of this case" (emphasis added). I agree with the observation made by Justice Dawson in R. v. Vander Griend, at para 64:
"Consequently, I do not think it can be said that a reasonable suspicion that a detainee has committed an offence, which was required due to the particular context in Mann, is, as the appellant here submits, always required before a detention is lawful and accordingly not arbitrary."
25The factual context in the case at bar is very different from that in Mann. Here, Mr. Lubansa was in care or control of a motor vehicle. Driving is a licenced and heavily regulated activity. The Supreme Court of Canada has recognized that police have a common law power to randomly detain motorists in order to confirm the driver's sobriety, inspect driving documents, and examine the vehicle for fitness. This limit on the right not to be arbitrarily detained is a reasonable one that is demonstrably justified in a free and democratic society, within the meaning of s. 1 of the Charter: Dedman, R. v. Hufsky, and R. v. Ladouceur. This common law power to detain motorists without reasonable suspicion extends to those who are on private property: R. v. Dillon, [2006] O.J. No. 1366 (S.C.J.) and R. v. Vander Griend, [2015] O.J. No. 5675 (S.C.J.).
26Second, the demand by Constable Nickerson for Mr. Lubansa's driver's licence, insurance and ownership documents for inspection was not a search or seizure within the meaning of s. 8 of the Charter because it did not constitute an intrusion into the accused's reasonable expectation of privacy in those documents. Driving is a highly regulated activity. Motorists can expect to be asked to produce documents to show they are duly licenced and that the vehicle they are operating is properly registered: R. v. Hufsky, at p. 638.
27Third, once the officers learned from their police checks that the licence plates on the accused's car were not authorized to be attached to any vehicle and that the plates were linked to an identity theft, their suspicion that Mr. Lubansa was involved in that offence was objectively reasonable.
28While the detention in this case was lengthy (approximately 30 minutes), it was necessary to ensure that the officers had sufficient information to make a decision about whether a crime or regulatory offence had been committed. Constable Nickerson was justified in conducting further checks into the status of the licence plates given the conflicting information he had received from MTO, OPP and police databases and the information on the accused's vehicle ownership permit. The continued detention of Mr. Lubansa was necessary to complete the investigation into the plates and was reasonable in the circumstances. Indeed, the officers would have failed in their duties had they allowed Mr. Lubansa, and unlicensed driver with unauthorized plates, to leave the parking lot.
29Lastly, I also take into account the nature of the detention. Mr. Lubansa remained in his vehicle, where he had originally been apparently sleeping. He was not asked any questions and was not taken out of his vehicle, handcuffed or put into the police car until after his arrest for possession of property obtained by crime.
30On a consideration of all of the evidence, I am satisfied that Mr. Lubansa's detention was lawful and was not a violation of his s. 9 rights. I find that based on all of the information available to Constable Nickerson, he had reasonable and probable grounds to believe Mr. Lubansa was in possession of licence plates obtained by crime and lawfully arrested him for that offence.
B. Section 8 - search of Mr. Lubansa's car
31Constable Huk testified that from the information he and Constable Nickerson had received, he believed that Mr. Lubansa may be in possession of identification documents in the name of Jordan Duggan. He based this belief on the fact that in 2010 Mr. Duggan had reported his wallet and identification stolen from his car at 4 Lynmont Road. Mr. Lubansa was on a recognizance of bail to live at 22 Lynmont Road. Mr. Lubansa had plates purportedly registered to Mr. Duggan attached to his car, yet Mr. Duggan had reported to the OPP that he knew nothing about these plates. Constable Huk was also aware that to obtain a licence plate from the MTO, a driver must present a valid driver's licence. Accordingly, he decided to search Mr. Lubansa's vehicle for any documents or evidence relating to Mr. Duggan, any MTO documents pertaining to the registration of the plates or any documents relating to the purchase of the car.
32Constable Huk testified that he found a red knapsack on the floor of the car behind the driver's seat. Inside this back pack he found, amongst other things, a laptop, a wallet, two passports and five white envelopes. The white envelopes contained six counterfeit Canadian social insurance number cards and eight counterfeit Canadian citizenship cards in the names of Nikki Benson, Sandra Thompson, Clara Smith, Krystal Wilson, Antonia Jamieson and Michelle Johnson.
33Constable Huk also found and seized six bank folders and envelopes containing account opening documents for various bank accounts at the Bank of Nova Scotia, Bank of Montreal and Royal Bank of Canada in the name of Sandra Thompson and Nikki Benson. These documents were on the rear floor of the car, behind the front passenger seat. He also found a Toronto Dominion Bank access card but does not recall specifically where in the car it was located. Lastly, he found and seized a total of seven cell phones, four of which were on the front passenger seat and centre console of the car. He does not recall and nor did he make a note of what area of the car he found the other three cell phones.
Applicable Legal Principles
34Section 8 of the Charter protects individuals against unreasonable search and seizure. In the case at bar, the police had no warrant to search Mr. Lubansa's car. The search was therefore prima facia unreasonable and the onus is on the Crown to rebut this presumption on a balance of probabilities: Hunter v. Southam.
35Charter principles apply equally to a warrantless search of a motor vehicle. The courts have recognized that drivers have a reasonable expectation of privacy in the contents of their vehicles and that the reasonableness of a warrantless search is to be evaluated by balancing that privacy interest against the state's interest in law enforcement.
36In order for a search to be validly undertaken pursuant to the common law power of search incidental to a lawful arrest, three preconditions must be met:
i. the arrest must be lawful,
ii. the search must have been conducted as an incident to the lawful arrest, and
iii. the manner in which the search was carried out must be reasonable
(R. v. Stillman, para. 25)
37In R. v. Caslake, the Supreme Court of Canada affirmed that police have authority at common law to conduct a warrantless search of a motor vehicle incident to the arrest of its occupants. A search is properly incidental to an arrest where police attempt to achieve some valid purpose connected to the arrest, including:
i. ensuring police and public safety,
ii. protecting evidence from destruction by the arrestee or others; and
iii. discovering evidence that can be used at the arrestee' trial.
38While the police need not have reasonable and probable grounds to conduct the search, they must be able to explain why they searched and the objective of the search in relation to the arrest. The reasonableness of the search must be evaluated on a subjective and objective basis. If the justification for the search is to discover evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested: Caslake, para. 19, 20, and 22.
Analysis
39The defendant concedes that if I find, as I have, that the accused was not arbitrarily detained, then the police had reasonable and probable grounds to arrest him for possession of licence plates obtained by crime. However, the defendant takes issue with the manner in which the search was conducted. In this regard, counsel points out that Constable Huk did not make notes about his search of the car until approximately two hours later and did not make detailed notes about what areas of the car he searched. She also points to the lack of photographs of the car and its contents at the scene.
40I do not agree that the manner in which Constable Huk searched the vehicle amounts to a breach of s. 8. Constable Huk testified, and I accept, that he searched the entire car, including glove box, trunk and in between seats. He made notes about where he found various items. He didn't make a note of searching the glove box, trunk or seats because he did not find anything in those areas. Constable Huk agreed that it would have been better to take photographs of the car and its contents while at the scene, but he did not have camera equipment with him. He also explained that he made his notes when the events were still fresh in his mind and were as detailed as needed to assist him in giving evidence. He also relied on photographs he took at the police station of the items and documents he had seized from the car. While it is true that he could not recall where some items (the TD Bank card and 3 of the 7 cell phones) were located in the car, I view that as a frailty going to the weight of his evidence, and not fatal to the reasonableness of the search.
41Counsel for Mr. Lubansa argues that since police were already in possession of Mr. Lubansa's ownership slip and the licence plates, there was no basis for a further search of the car. She submits that the police could easily have applied for a search warrant after sealing and towing the car. I do not accept this. The Supreme Court of Canada in Caslake has held that a warrantless search of a car incident to arrest of its driver is lawful if the objective is to search for evidence logically connected to the reason for the arrest. There is no requirement that police may only do so in circumstances that make obtaining a warrant impractical.
42On the evidence before me I am satisfied that the search was properly incidental to Mr. Lubansa's arrest. I accept the testimony of Constables Huk and Nickerson that based on the information they had received, they believed the search of Mr. Lubansa's car could produce evidence relating to Mr. Duggan's identification documents, the registration of the plates in Mr. Duggan's name, or the purchase of the car. I find that the officers honestly held this belief and that such belief was objectively reasonable in the circumstances. It was also logically connected to Mr. Lubansa's arrest for possession of property obtained by crime.
43For the these reasons, I find that the search of Mr. Lubansa's car did not violate his rights under s. 8 of the Charter. The application to exclude evidence is dismissed. All evidence found in Mr. Lubansa's car is admissible at trial.
C. Section 8 - strip search at police station
44Following his arrest, Mr. Lubansa was brought to police 42 Division where Constables Nickerson and Huk requested a level three search of the accused. This is sometimes referred to as a strip search. The search was approved by the officer in charge of the police station.
45Constable Nickerson and Huk testified that the purpose of the search was to look for any evidence of fraud or identity theft, such as small cards or documents that might be concealed inside Mr. Lubansa's clothing or on his person. They also searched for any small items that might be used as a weapon or means of escape, or be potentially harmful to others such as drugs. Both officers testified that in their experience small items can be concealed inside underwear or between buttocks and can be missed during a level two pat down search.
46The officers were aware that Mr. Lubansa had outstanding charges for fraud related offences and was going to be held for a bail hearing. They believed Mr. Lubansa was to be transported to a custody facility where he could be in contact with other inmates and jail guards. Constable Nickerson testified that in his view, Mr. Lubansa posed a heightened security risk because he had a history with police for dishonesty, possession of weapons and violence. He had learned of Mr. Lubansa's history through the Toronto police in-car computer prior to their arrival at the police station. He admitted that he did not specify in his notes which reports he had read and does not recall how old they were, but believed they were within the past five years.
47The strip search was conducted by Constables Huk and Nickerson in a room near the booking area. For safety reasons, the doorway to the room is open, but is blocked off to people walking by. The room is audiotaped but not videotaped. Constables Huk and Nickerson testified they were the only people in the room with Mr. Lubansa during the search and that no one came or looked in. Mr. Lubansa was told to remove each item of clothing, including his shirt, pants and underwear. The clothing was inspected and then returned to Mr. Lubansa. He was permitted to put some of his clothing back on so he was never completely naked. Constable Huk testified that Mr. Lubansa was asked to open his mouth, lift his testicles and spread his buttocks for visual inspection of those areas. The officers testified they found nothing from this search.
Applicable Legal Principles
48The law of when the police may conduct a lawful strip search incident to arrest was set out by the Supreme Court of Canada in R. v. Golden, 2001 SCC 83. The majority of the Court recognized that strip searches represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience. Even the most sensitively conducted strip search is highly intrusive. For this reason, they cannot be carried out simply as a matter of routine policy (para. 83, 89 and 90).
49Because of the highly invasive nature of a strip search, the majority in Golden held that the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search (para. 94). The court concluded that"…a higher degree of justification is required in order to support the higher degree of interference with individual freedom and dignity. In order to meet the constitutional standard of reasonableness that will justify a strip search, the police must establish that they have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest." (para. 98).
50The majority in Golden drew a distinction between a strip search conducted incident to arrest and searches related to safety issues in a custodial setting:
It may be useful to distinguish between strip searches immediately incidental to arrest, and searches related to safety issues in a custodial setting. We acknowledge the reality that where individuals are going to be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment. (para. 96)
The difference between the prison context and the short term detention context is expressed well by Duncan J. in the recent case of R. v. Coulter, [2000] O.J. No. 3452 (C.J.), at paras. 26-27, which involved a routine strip search carried out incident to an arrest and short term detention in police cells for impaired driving. Duncan J. noted that whereas strip searching could be justified when introducing an individual into the prison population to prevent the individual from bringing contraband or weapons into prison, different considerations arise where the individual is only being held for a short time in police cells and will not be mingling with the general prison population. While we recognize that police officers have legitimate concerns that short term detainees may conceal weapons that they could use to harm themselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of all arrestees. (para. 97)
51In R. v. Clarke, Justice Ferrier dealt with the appropriate standard to apply when a person is going to be held in a custodial facility. While noting that the Supreme Court of Canada in Golden did not qualify or reduce the "reasonable and probably ground" standard in case of persons about to enter the prison population, Justice Ferrier concluded that:
In my view a realistic approach to this issue is required. In my view it would be a rare case when a strip search would not be justified on safety and security grounds when an accused is going to be entering the prison population. One could give numerous examples of very small, but nevertheless, deadly weapons which could easily be secreted on one's person and not revealed by a thorough pat down search. (para. 89)
52At para. 92 of R. v. Clarke, Justice Ferrier adopted the standard articulated by Justice Trafford in R. v. Brown [1998] O.J. No. 4682, at para. 12:
In my opinion, it is appropriate for this court to declare that at common law a police officer has the power to strip-search or to use extra restraints on a prisoner at a courthouse detention facility where, objectively viewed, there are reasonable grounds to suspect it is necessary to ensure the safety of persons in the courthouse, to prevent an escape of a prisoner, or to otherwise provide for the proper administration of justice. The exercising of such powers must be reasonable and otherwise compatible with the values recognized in the application of the Charter to the custodial context of such prisoners (emphasis added).
53At para. 95 and 96 of R. v. Clarke, Justice Ferrier explained that in the context of this discussion, the focus should be on the purpose of the strip search. If the purpose is for safety and security reasons, then a relevant question to ask is whether viewed objectively, are there reasonable grounds to expect that this accused will be in contact with other persons who are being detained by the state? If the answer to the question is yes, then the heightened considerations or greater need to ensure that weapons or drugs are not being concealed come into play and the search will be more readily justified.
54The above approach was cited with approval by Justice Code on a summary conviction appeal in R. v. Fuglerud [2012] O.J. No. 5467, (S.C.J.) para. 23.
Analysis
55Counsel for Mr. Lubansa objects to the strip search on several bases. First, she urges the court to find that the officers' evidence on this issue is not credible or reliable as their notes are incomplete and lacking in detail. Second, the police did not have reasonable and probable grounds to believe they would find any weapons or evidence from the strip search or that her client posed a heightened security risk. Third, she argues that there was no need to conduct the strip search since Constable Nickerson had already conducted a thorough search of her client at the scene and no weapons or evidence were found on him. The defendant submits that if I find that the strip search was unlawful, the only appropriate remedy is a stay of proceedings.
56On all of the evidence before me, I am satisfied that the strip search of Mr. Lubansa was justified on the basis that he was to be held for a bail hearing in a custodial facility with other prisoners and jail guards. Constable Nickerson testified, and I accept, that he had received information from police computer databases that Mr. Lubansa had a history of violence and weapons. He made a note about this in his memo book. While it would have been preferable for the officer to make more detailed notes about the reports, his evidence on this point was not contradicted, and I accept it.
57Constable Nickerson also considered that the accused had been alone in his car for about 30 minutes while he and Constable Huk investigated the ownership of the licence plate. I agree with him when he testified that during this time, the accused had the opportunity to conceal a weapon or small pieces of evidence on his person. Both officers testified that in their experience, very small but nonetheless deadly weapons can easily be secreted on one's person and not revealed by a thorough pat down search. This fact was acknowledged by Justice Ferrier in R. v Clarke, and is equally applicable here. The fact that Constable Nickerson conducted a thorough pat down search at the scene does diminish the reasonableness of the strip search at the police station.
58I also accept the testimony of Constables Nickerson and Huk that it is not their practice to request a strip search on everyone held for a bail hearing. Both officers testified that this is a case by case assessment. It was Constable Nickerson's testimony that in this case, he requested the search based on Mr. Lubansa's history of violence. I am therefore satisfied that the officers had reasonable grounds to suspect that a strip search was necessary to ensure the safety of persons in the jail or to prevent an escape of a prisoner. Moreover, the manner in which the strip search was conducted was reasonable in the circumstances.
59I am also satisfied that the officers had reasonable and probable grounds to believe that evidence could be concealed on Mr. Lubansa's person and that such items might not have been found during a level 2 search. I base this conclusion on the fact that the accused was alone in his vehicle for approximately 30 minutes while under investigation and the fact that the officers found small identification cards in his car. In the circumstances, it was reasonable for the offices to believe Mr. Lubansa might have concealed small documents in his underwear or clothing.
60Accordingly, I am satisfied that the strip search of Mr. Lubansa was lawful and did not breach his rights under s. 8 of the Charter. The application to stay the proceedings is dismissed.
III. THE OFFENCES
61Having dismissed the application to stay the proceedings and to exclude the evidence, I now turn to whether the Crown has proven the substantive offences. In this case, Mr. Lubansa is presumed to be innocent, unless and until the Crown has proven each essential element of the offences beyond a reasonable doubt. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that Mr. Lubansa is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.
A. Counts 1 and 7 - Possession of Counterfeit Marks, s. 376(2)(b)
62Constable Huk testified he found eight Canadian citizenship cards and six social insurance number cards in Mr. Lubansa's car. There is no dispute that these documents bear a "mark" as defined by s. 276(3) of the Criminal Code. The defendant also admits that these documents are counterfeit. Constable Huk testified he found all of these cards inside five white envelopes which were inside a red knapsack located on the floor behind the driver's seat. The knapsack also contained two passports issued by the Republic of Congo to Mr. Lubansa and a wallet with two Ontario driver's licences in his name.
63The citizenship and social insurance cards are in the name of Nikki Benson, Sandra Thompson, Clara Smith (two citizenship cards in her name), Krystal Wilson (two citizenship cards in her name), Antonia Jamieson and Michelle Johnson. Four of the citizenship cards bear the image of the same woman and the other four citizenship cards bear the image of another woman. The dates of birth on the citizenship cards are all different. All of the cards are designed to appear as if they are genuine.
64One of the white envelopes (police exhibit 1) contained a temporary Ontario driver's licence in the name of Clara Smith, date of birth 1992/12/25, with an address of 1007-100 Graydon Hall Drive, Toronto. A social insurance card and citizenship card with this name and date of birth was also inside the envelope.
65In another white envelope (police exhibit 3), Constable Huk found a temporary Ontario driver's licence in the name of name of Krystal Wilson, date of birth 1993/04/20, with an address of 22 Lynmont Road, Etobicoke. A counterfeit social insurance card and citizenship card in the name of Krystal Wilson with the same date of birth was also in this envelope, along with one business card from Scotiabank and one from TD Investment Services Inc. Constable Huk initially testified that this envelope also contained a Scotiabank Scene card, but corrected himself when he testified with the aid of a photograph he had taken of this envelope and its contents.
66In another of the white envelopes (police exhibit 4), Constable Huk found two more temporary Ontario driver's licenses. One was purportedly issued to Krystal Wilson, date of birth of 1986/02/20, with an address of 22 Lynmont Road, along with a counterfeit citizenship card purportedly issued to Krystal Wilson with the same date of birth. The other temporary driver's licence states it was issued to Clara Smith with an address of 1007-100 Graydon Hall Drive, Toronto, date of birth of 1982/01/20. A counterfeit citizenship card with this name and date of birth was also in this envelope.
67By agreed statement of fact, it is conceded that the numbers on these temporary driver's licences do not exist in any MTO database.
68Kashelle Mortimer testified for the defence. She is the mother of Mr. Lubansa's child. In November 2014 she lived in the area of Sewells Road and Littles Road with her child, parents and siblings. She testified that Mr. Lubansa drove a silver 2013 Hyundai Sonata and lived at 22 Lynmont in Etobicoke. She believes he purchased the car in 2013 or 2014. Ms. Mortimer was in this car about 3 to 4 times per week because Mr. Lubansa would often drive her to work in the morning and pick her up from work in the evenings. She testified that other people would occasionally drive Mr. Lubansa's car. On a few occasions, his sister Faith picked her up using this car and on one occasion, a male friend of Mr. Lubansa picked her up in Mr. Lubansa's car. The car usually contains child seats and toys and other items she believes belong to Mr. Lubansa.
Analysis
69In this case, the Crown submits that Mr. Lubansa had personal possession of the counterfeit citizenship and social security cards because they were found in a knapsack with his passports and driver's licence. The banking documents were found in plain view next to the knapsack in his car.
70Counsel for Mr. Lubansa argues that the Crown has failed to prove to the requisite degree of certainty that her client was in possession of the counterfeit Canadian citizenship cards, the social insurance cards or the bank documents. She argues that Constable Huk's evidence about where he located these items is not reliable as he did not make sufficiently detailed notes of this and did not take photographs of the items as he found them in the vehicle. She points to the frailties in his evidence regarding the specific location of the TD debit card and cell phones and his error with respect to the Scotiabank Scene card. Lastly, she argues that there is evidence that the accused was not the only person to drive the vehicle and I should therefore have a doubt about whether he had knowledge of the counterfeit cards or the banking documents.
71Where the Crown alleges personal possession of a thing, it must prove that the accused had knowledge and control over that thing. The requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware of what that thing is. Both of these elements must co-exist with an act of control over the thing: Beaver v. The Queen, at pp. 541-42; R. v. Morelli 2010 SCC 8, at para. 16.
72I accept the testimony of Constable Huk regarding where he found the counterfeit cards and bank documents. The manner in which he grouped and labelled the knapsack and the envelopes is logical and does not undermine his evidence about where the counterfeit cards were located. I am also satisfied that the manner in which the officer made his notes is not confusing to him and would not lead him into an error about finding the cards in the white envelopes in the knapsack. His mistake about where he found the Scotiabank Scene card, which he subsequently corrected when he looked at the photograph, does not in my view undermine his credibility or reliability on this issue.
73Ms. Mortimer's evidence that the accused would occasionally allow others to use his car does not raise a reasonable doubt about Mr. Lubansa's knowledge of the items in question. There is no evidence that someone used the car shortly before the documents were discovered. Indeed, Ms. Mortimer confirmed that the accused had sole possession of the car when he picked her up from work and drove her home on the evening of November 7, 2014. The submission that someone else could have put the items in question in Mr. Lubansa's car without his knowledge is based on speculation with no foundation in the evidence.
74Mr. Lubansa was the owner and primary user of the car. He was the only person in the car when the documents were discovered. The counterfeit cards were in five white envelopes in a knapsack which also contained two passports and two driver's licences in Mr. Lubansa's name. Two of those envelopes contained false temporary driver's licences purportedly issued to a woman at 22 Lynmont, Mr. Lubansa's residence. The bank documents were in plain view on the rear floor of the car next to his knapsack. All of these facts lead me to the inescapable conclusion that Mr. Lubansa had knowledge and control over the counterfeit cards and bank documents.
75I am also satisfied beyond a reasonable doubt that Mr. Lubansa knew that the citizenship and social security cards were counterfeit. Viewed individually, the cards appear to be genuine. However, when they are grouped together, as they were when discovered in Mr. Lubansa's car, their falsity is evident.
76I find Mr. Lubansa guilty on count 1 and 7.
B. Count 7 – Possession of Property Obtained by Crime - s. 354(1)
77Jordan Duggan testified that he has never owned a 2013 silver Hyundai Sonata and does not know how he came to be the registered owner of plate BTWD334. He does not know why his name is on the plate portion of the ownership slip provided to Constable Nickerson by Mr. Lubansa on November 8, 2014. Mr. Duggan does not know the accused and has never given him permission to use his name to register the plates. He only learned of his name being associated with these plates when he received a recall notice from Hyundai in October 2014. He reported the matter to the OPP and swore an affidavit that he was not the owner of that car or plates. He also testified that his wallet and driver's licence were stolen from his car in September or October of 2010. He was not aware of any issue with his licence or identification being used until this incident.
78Ms. Mortimer testified that when Mr. Lubansa initially purchased this car, he had asked her to register the licence plates in her name because he had unpaid fines and Highway 407 bills. She testified she was not able to do this because her licence was also suspended for unpaid fines. Mr. Lubansa asked her father to register the plates in his name but he also declined. She does not know how Mr. Lubansa came to obtain plates for his car.
Analysis
79Count 7 alleges that Mr. Lubansa was in possession of property belonging to the MTO, the licence plate, knowing that it had been obtained by the commission of an indictable offence. The Crown has not specified the crime by which it alleges the accused obtained the plates. The defendant argues that the Crown has not proven beyond a reasonable doubt that he knew the plates were obtained by the commission of an offence.
80In R. v. Geauvreau, the court of Appeal held that the words "obtained by" refers to things that constitute the subject matter of the crime by which they were obtained. For example, things obtained by theft, false pretences or extortion. The offence must be committed in respect of the thing obtained.
81On the evidence before me, I am satisfied beyond a reasonable doubt that the plates were obtained from the MTO by the commission of an indictable offence, namely the fraudulent personation of Jordan Duggan. I am also satisfied beyond a reasonable doubt that the accused either committed this offence or was a party to it. Mr. Lubansa's statement to Constable Nickerson that he purchased the car from a dealer in Ajax does not raise a doubt that he might have come into possession of the plates in some innocent fashion.
82I base this conclusion on the following facts: Mr. Lubansa was in possession of the plates and the ownership slip naming Jordan Duggan as the registered owner of the plates. Mr. Duggan did not know Mr. Lubansa. He did not personally register the plates in his name or give Mr. Lubansa permission to do so on his behalf. Mr. Duggan's driver's licence had been stolen from his car in Etobicoke in 2010. To obtain plates for a car, a driver must present a valid driver's licence. Ms. Mortimer testified that when the accused purchased the car, he had unpaid fines and could not register the plates in his name.
83In coming to my conclusion, I have also taken into account the fact that at the time of arrest, Mr. Lubansa was in possession of false temporary Ontario driver's licences and counterfeit citizenship and social security cards. While none of these documents are in Jordan Duggan's name, it demonstrates to the court that Mr. Lubansa had access to false identification documents which could be used to obtain a licence plate.
84I find Mr. Lubansa guilty of count 7.
C. Count 2, 8, 9 and 10: Fraud over $5000
85By agreed statement of fact, the court learned that between November 1 and November 30, 2014, a number of accounts were opened at the Toronto Dominion Bank, the Bank of Nova Scotia, the Royal Bank of Canada and the Bank of Montreal in the names of Clara Smith, Nikki Benson, Sandra Thompson and Krystal Wilson. These accounts were opened using the counterfeit Canadian citizenship cards and social security number cards found in Mr. Lubansa's car. Mr. Lubansa does not appear in any of the surveillance cameras or photographs in the bank branches or at the automated banking machines in relation to any of these accounts.
86In most of these accounts, no money was deposited or withdrawn. However, the following activity took place in four of the accounts:
Between November 24 and 25, 2014, $13,213.61 was deposited and $5,710.13 was withdrawn from an account #6446963-1988 in the name of Clara Smith at the Toronto Dominion Bank.
Between November 10 and November 28, 2014, $30,241.37 was deposited and $13,416.48 was withdrawn from one of three accounts in the name of Clara Smith at the Bank of Montreal. On November 11 and 12, 2014, $2,780 was transferred electronically from this account to Ehijie Omijie. Mr. Omijie was charged in relation to that transfer on October 16, 2015.
On November 14, 2015, $500(US) was deposited into another of the three accounts in the name of Clara Smith at the Bank of Montreal.
Between November 20 and 21, 2014, a total of $6764.84 was deposited into one of three accounts at the Royal Bank of Canada in the name of Krystal Wilson. No money was withdrawn from this account.
87As previously stated, Constable Huk found six bank folders and envelopes containing documents pertaining to various bank accounts at the Bank of Nova Scotia, Bank of Montreal and Royal Bank of Canada in the name of Sandra Thompson and Nikki Benson. No banking documents were found for bank accounts in the name of Clara Smith or Krystal Wilson. Constable Huk found a Toronto Dominion Bank access card in the car, but it has no name on it and is not associated with the Smith account at the Toronto Dominion Bank.
88The Crown takes the position that Mr. Lubansa was a party to a fraud on these banks in relation to all of the accounts that were opened with the counterfeit citizenship and social security cards found in his car.
Analysis
89In R. v. Théroux, at para. 27, the Supreme Court of Canada held the following to be the essential elements of the offence of fraud:
…the actus reus of the offence of fraud will be established by proof of:
the prohibited act, be it an act of deceit, a falsehood or some other fraudulent means; and
deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim's pecuniary interests at risk.
Correspondingly, the mens rea of fraud is established by proof of:
subjective knowledge of the prohibited act; and
subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim's pecuniary interests are put at risk).
Where the conduct and knowledge required by these definitions are established, the accused is guilty whether he actually intended the prohibited consequence or was reckless as to whether it would occur.
90I have found that Mr. Lubansa was in possession of counterfeit citizenship cards and social security cards, including those in the name of Sandra Thompson and Nikki Benson. He was also in possession of bank documents and access cards for accounts in the names of these women at the Bank of Nova Scotia, Bank of Montreal and Royal Bank of Canada.
91The use of the counterfeit citizenship and social security cards to open the Thompson and Benson accounts is an act of deceit or falsehood. This act of deception placed the pecuniary interests of the banks at considerable risk because the account holders are fictitious. Mr. Lubansa possessed the counterfeit identification cards used to open these accounts and the bank documents and access cards related to these accounts. Moreover, the bank documents found in Mr. Lubansa's car contained personal identification numbers for the Thompson accounts at the Bank of Montreal (police exhibit 11) and Royal Bank of Canada (police exhibit 14). He also had the online passwords and security questions for the Benson account at the Royal Bank of Canada (police exhibit 10) and the personal identification number for the Benson accounts at the Bank of Nova Scotia (police exhibit 12) and Bank of Montreal (police exhibit 13). In other words, Mr. Lubansa possessed the tools to open the Thompson and Benson accounts and the means to access them.
92I am therefore satisfied beyond a reasonable doubt that Mr. Lubansa was a party to a fraud over $5000 in relation to the Benson and Thompson accounts at the Bank of Nova Scotia, Bank of Montreal and Royal Bank of Canada. There was no activity on these accounts and so no evidence that these banks actually lost money. Nonetheless, their pecuniary interests were put at risk. It is reasonable to conclude that the banks' losses from these accounts could easily have exceeded $5000.
93I find Mr. Lubansa guilty of count 8, 9 and 10 in relation to the Thompson and Benson accounts only. I am not satisfied beyond a reasonable doubt that Mr. Lubansa was a party to a fraud on these banks in relation to the Clara Smith or Krystal Wilson accounts. There is no evidence that Mr. Lubansa was in possession of any bank documents relating to any of the Smith or Wilson accounts. In my view, the fact that Mr. Lubansa was in possession of counterfeit cards in the names of these women does not prove to the requisite degree of certainty that he was a party to the creation of bank accounts in their names.
94For the same reason, I am not satisfied beyond a reasonable doubt that Mr. Lubansa was a party to the creation of the Clara Smith account at the Toronto Dominion bank. The fact that he was in possession of counterfeit citizenship and social security cards in the name of Clara Smith does not link him sufficiently to the opening of a bank account in her name at that bank. The Toronto Dominion Bank access card found in Mr. Lubansa's car has no name on it and is unrelated to Toronto Dominion Bank account # 6445963-1988 referred to in the agreed statement of fact. Accordingly, I find Mr. Lubansa not guilty on count 2.
Released: April 25, 2016
Signed: "Justice M. Speyer"
