Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Marc Proulx
Before: Justice E. Deluzio
Voir Dire heard on: April 28, 2016, April 29, 2016, May 16, 2016
Reasons for Decision released on: June 3, 2016
Counsel:
- J. Hurley, counsel for the Crown
- D. Isbester, counsel for the accused Marc Proulx
Decision
Deluzio J.:
[1] The Arrest
Mr. Proulx is charged with possession of cocaine for the purpose of trafficking. He was arrested while driving eastbound on the 401 in Belleville at 4 p.m on July 6, 2015. He was detained and held in custody for 9 ½ hours after his arrest before he was permitted to contact counsel. He was strip searched before he was placed in a police holding cell at the Quinte West OPP station. Police officers searched his vehicle without a warrant and found two kilos of cocaine in a hidden compartment. The Crown argues that the strip search and the vehicle search were incidental to Mr. Proulx's arrest.
[2] Charter Arguments
Mr. Proulx relies on sections 8, 9 and 10(b) of the Charter. He argues that the police lacked reasonable and probable grounds to arrest him, therefore his arrest was unlawful, making the warrantless searches of his person and his vehicle unreasonable. In the alternative, he is challenging the constitutional validity of the search of his person and his vehicle and he argues that he was denied his right to counsel. He is asking that the cocaine evidence, and all evidence obtained, be excluded under Section 24(2).
THE ARREST
[3] Initial Police Contact
Officer Croghan of the QWOPP was the arresting officer. He testified that he received a call from Officer Stevenson, a member of a Toronto Police service drug unit at 2:26 p.m. on July 6, 2015. Officer Stevenson told Officer Croghan that the Toronto drug unit suspected that the driver of a grey Ford Focus motor vehicle travelling east bound on Hwy 401, was transporting cocaine from Toronto to the Montreal area, and they wanted the vehicle stopped. At the time of this call, Stevenson and five other members of a Toronto drug unit surveillance team were following the grey Ford Focus as it travelled east along the 401 in five separate unmarked police vehicles.
[4] Arrest Instructions
Stevenson gave Croghan the vehicle licence # and a description. Croghan contacted a fellow officer, Postma, to assist him, and the two officers set up at a 401 exit near Belleville and waited for the vehicle. Before the vehicle was stopped, Croghan received a second call, this one from Detective Backus, the officer in charge of the surveillance team, who told Officer Croghan that the driver was to be arrested for possession of cocaine for the purpose of trafficking.
[5] Limited Information Provided
Officer Croghan was not given any other details about their investigation of Mr. Proulx or the information the Toronto police had supporting their grounds to have him arrested. Croghan testified that he knew that the Toronto police had "watched a meet between the driver of the grey Ford Focus and a person the Toronto police believed was a supplier of cocaine."
[6] Roadside Frisk and Rights
Mr. Proulx's vehicle was stopped at 4:02 p.m. and he was arrested. Officer Croghan did a frisk or "pat down" search of Mr. Proulx's person. Mr. Proulx was wearing a t shirt and short pants when he was arrested. He was handcuffed and placed him in the rear of their police vehicle. Officer Croghan read Mr. Proulx his right to counsel from his police card, asked Mr. Proulx if he understood and asked Mr. Proulx if he wanted to call a lawyer. Mr. Proulx's response was that he needed to call his family to get a number for a lawyer.
[7] Vehicle Tow and Canine Unit Request
The officers conducted a cursory search of the vehicle at the roadside. They found two cell phones on the passenger seat but they didn't find anything else related to the drug subculture. The officers called a tow truck to move the vehicle to the OPP detachment because they felt that it was unsafe to continue to search the car at the side of the highway. Mr. Proulx waited in the back of the police vehicle for almost a half hour before the tow truck arrived. While they were waiting at the side of the road for the tow truck Officer Croghan called the Kingston canine unit to request that a canine officer attend with a drug sniffing dog since no drug sniffing dogs were available in the Belleville area to assist with the search of Mr. Proulx's vehicle at the QWOPP detachment.
THE STRIP SEARCH
[8] Strip Search at Detachment
Mr. Proulx was transported to the QWOPP detachment. Before he was placed in a cell Mr. Proulx was strip searched by Officer Postma. Officer Croghan acknowledged that he had already conducted a frisk search of Mr. Proulx at the roadside before placing him in the back of the police vehicle, and that this search included a pat down of Mr. Proulx's upper leg area. He acknowledged that the purpose of his frisk search was to check for weapons such as sharp objects to ensure police safety before placing Mr. Proulx in the police vehicle. Officer Postma also acknowledged that Mr. Proulx sat in the back seat of the vehicle for 30 minutes while they waited for the tow truck and that Mr. Proulx was cooperative throughout his arrest and detention.
[9] Strip Search Details and Justification
Officer Postma testified the strip search involved ordering Mr. Proulx to remove his clothing and asking Mr. Proux to raise his scrotum and spread his buttock cheeks. Officer Postma explained that he was exercising his common law right to search incident to arrest and looking for evidence of a CDSA offence. He said the OPP does not have a policy regarding strip searches. He was aware that Toronto police suspected Mr. Proulx of being involved in kilo level drug dealing and that Toronto police had information that the cocaine was being transported in hidden compartments in vehicles. He maintained that based on his past experience dealing with drug offenders he believed Mr. Proulx could still be concealing drugs on his person. He said the strip search would have been videotaped because the cell area is videotaped. Officer Postma agreed that Mr. Proulx had been cooperative from the time of his arrest and that before he conducted the strip search he asked Mr. Proulx if he was concealing any drugs or weapons on his person and Mr. Proulx said he wasn't.
THE VEHICLE SEARCH
[10] Discovery of Cocaine
Between 6 and 6:30 p.m, police searched Mr. Proulx's vehicle with the assistance of a police canine unit from Kingston. They police found two one kilo bricks of cocaine in a hidden compartment in the vehicle. The members of the Toronto surveillance team were present when the drugs were found. They arrived at the QWOPP detachment at around 6:15 p.m.
[11] Vehicle Search Details
Officer Stevenson described the search of Mr. Proulx's vehicle. He said that the drug dog showed an interest in the trunk area of the vehicle. Officer Stevenson testified that at around 6:20 p.m. he was looking at the back hatch and smelled a strong smell of what he remembered modelling glue to smell like. He noticed screws around the outside perimeter of a piece of wood that holds the spare tire in place, felt a gap and stuck his hand in. he said he could feel rough plywood, and popped the panel up with his hands and it "literally sprung open" revealing a hidden compartment with a hydraulic device. Inside the compartment police found two one kilo bricks of cocaine.
THE LAWYER CALL
[12] Initial Denial of Counsel
While driving to the detachment with Mr. Proulx, Officer Croghan received a call from Officer Backus who told him that "there were to be no lawyer calls" because the Toronto police were possibly executing other search warrants that day in Toronto. Officer Croghan explained that his understanding of the rationale for preventing Mr. Proulx from contacting a lawyer was to "protect the integrity of the investigation, the safety of officers involved and the preservation of any evidence. Officer Croghan said that he was aware that Mr. Proulx was suspected of being a "high level" dealer because Backus told him that their unit dealt only with kilo level drug traffickers and in his experience at that high level of dealing, there is the potential for weapons to be involved, and the fear is that the suspect could be calling someone who could warn the "backend" supplier and they could get rid of evidence.
[13] Continued Denial After Drug Discovery
Officer Croghan testified that after the cocaine was found in the vehicle he again asked Detective Backus if he could allow Mr. Proulx to call a lawyer and he was again told that Mr. Proulx could not speak with a lawyer because the Toronto surveillance team was heading back to Toronto and would be executing search warrants on the residences and vehicles associated with the main target, Mr. Testa Serracin.
[14] Permission to Call Counsel
Officer Croghan left the detachment and was at home when he finally received a call from the Toronto police at 12:10 a.m. and was told he could let Mr. Proulx talk to a lawyer.
[15] Actual Counsel Contact
Mr. Proulx didn't speak with a lawyer until 1:35 a.m.
[16] Duty Counsel Called
Officer Quigley was on duty at the QWOPP detachment at that time. He testified that he received instructions at 12:29 a.m. to call duty counsel for Mr. Proulx. He left a message on the duty counsel automated hotline at 12:37. When he didn't receive a call back he made second call at 1:07. At 1:35 duty counsel called back and Officer Quigley escorted Mr. Proulx from cell to make call. Officer Quigley wasn't aware of any requests made by Mr. Proulx about his choice of counsel. He said he just followed superior's orders to call duty counsel for Mr. Proulx. He testified that he is aware that an arrested person is entitled to contact counsel of their choice.
THE TORONTO INVESTIGATION
[17] Project Wheels - Main Target
Mr. Proulx was not the main target of the Toronto drug investigation, called "Project Wheels". The main target was a man named Mr. Testa Serracin. Toronto drug unit officers had been conducting surveillance on Mr. Testa Serracin for about a month, after receiving information from a confidential informant that Mr. Testa Serracin was a huge importer and distributor of cocaine who used vehicles with hidden stash boxes to conceal money and cocaine.
[18] Detective Backus and Confidential Informant
Detective Backus, an officer with extensive experience investigating drug crimes, was in charge of Project Wheels. It was his Confidential Informant who provided the information about a group of drug traffickers who were dealing in kilo level cocaine, and using runners to transport cocaine in vehicles equipped with hidden compartments. The Confidential Informant also provided information, including a vehicle description and physical description, leading to the identification of Mr. Testa Serracin as the main target.
[19] June 15, 2015 Observations
On June 15, 2015 the Toronto surveillance team followed Mr. Testa Serracin and saw him enter a business called "Xtreme Couture" carrying a black duffel bag. They saw him meet with another guy at a Wacky Wings restaurant and they saw him sitting on a curb in a different plaza parking lot, talking to a different guy. While the drug squad members believed they were witnessing Mr. Testa Serracin conduct drug transactions, they did not see what Mr. TS did inside "Xtreme Couture" and they did not see any money or drugs change hands during his two short interactions with the unknown males.
[20] Tracking Warrant and Surveillance
On June 18, 2015 Officer Backus received further information from his Confidential Informant that Mr. Testa Serracin was in possession of a large quantity of cocaine and was distributing it. Based on this information the Toronto team applied for and obtained a tracking warrant. The tracking warrant was installed on Mr. Testa Serracin's vehicle on June 24, 2015, and led the Toronto officers to an apartment building at 121 McMahon Drive. Mr. Testa Serracin's vehicle was tracked to that location 8 times for short stays, between June 30 and July 5, 2015. Officers then went to the building and viewed surveillance video to confirm that it was Mr. Testa Serracin driving the vehicle and entering the building. Mr. Testa Serracin was seen on each occasion suspiciously getting off the elevator at the 21 st floor and taking the stairs to the 22 nd floor of the building. He was seen coming and going carrying large bags, usually gym bags.
THE OBSERVATIONS MADE BY THE TORONTO OFFICERS ON JULY 6, 2015
[21] Officer Stevenson - McMahon Building
Officer Stevenson was a member of the Toronto drug surveillance unit assigned to Project Wheels. He testified that he made direct observations of Mr. Testa Serracin on July 6, 2015, at the 121 McMahon building. Stevenson was stationed on the 22 nd floor near the elevator. He saw Mr. Testa Serracin come out of the stairwell door, and walk down the hall, carrying a black gym bag. He said the bag looked empty to him at that time because it did not have any shape to it and was free flowing back and forth. He watched Mr. Testa Serracin go to into unit 2015 and then watched him come out about 10 minutes later. He testified that it was at this time that the Toronto drug team identified the specific apartment unit they believed was the "stash house" or holding place for the cocaine Mr. Testa Serracin was distributing.
[22] Officer Stevenson - Wendy's Parking Lot
Officer Stevenson followed Mr. Testa Serracin as he drove from 121 McMahon into a parking lot near a Wendy's restaurant. He testified that Mr. Testa Serracin's black Ford Focus was parked on the south side of the parking lot and a grey Ford Focus (the vehicle Mr. Proulx was driving when he was arrested ) was parked on the east side, or back part, of the parking lot. Officer Stevenson testified that there was no stop and meet between the two vehicles at the Wendy's parking lot. He watched the Testa Serracin vehicle drive out of the parking lot, and saw the grey Ford Focus pull up behind the Testa Serracin vehicle and drive out of the parking lot in tandem with the Testa Serracin vehicle. He did not see any contact or interaction between the two drivers.
[23] Officer Miranda - Observations
Officer Miranda, another surveillance team member, testified that on July 6, 2015 he saw Mr. Testa Serracin drive his black Ford Focus into the underground parking lot at 121 McMahon drive at 1245 p.m. and saw him enter unit 2205. He then saw Mr. Testa Serracin get back in his car with the same bag which sagged heavily. Officer Miranda also saw the Testa Serracin vehicle drive out of the Wendy's parking lot, with the grey Ford Focus following. He did not see the two cars parked side by side in the parking lot and he did not see any interaction between the drivers of the two vehicles. Officer Miranda testified that he observed both vehicles exit the Wendy's parking lot and drive west bound on the Queensway in tandem, to 1535 Lakeshore East into the underground parking garage. He did not see the two cars in the parking garage.
[24] Officer Goulah - Underground Parking Garage
Officer Goulah, another member of the Toronto surveillance team, testified that he followed both vehicles from the Wendy's parking lot and watched as they drove into the underground parking lot at 1535 Lakeshore Road East, Mississauga, which police had identified as Mr. Testa Serracin's apartment building. Goulah testified that he saw the Mr. Proulx's grey Ford parked on the left side of the parking area, about 150 ft. down the corridor. He did not see the black Ford in the parking lot and he never saw the two vehicles parked near each other. In fact he testified that he didn't see the Testa Serracin car in the underground garage, until he noticed it travelling from one level to the next and then he saw the black car and the grey car leaving the garage in tandem.
[25] Officer Desousa - Highway Surveillance
Officer Desousa was also a member of the Toronto surveillance team. He testified that he saw the two vehicles drive out of the underground parking garage in tandem and remain in tandem. The vehicles separated when the grey Ford vehicle was driven into a gas station. Mr. Proulx was seen filling the car up with gas. He then drove out of the gas station and was followed as he drove his car onto the east bound 401. The entire surveillance team, operating 5 unmarked vehicles, then followed the Proulx vehicle until Mr. Proulx's car was pulled over and he was arrested.
[26] Officer Benevides - Search Warrant Preparation
Officer Benevides was a member of the drug squad but he did not follow Mr. Proulx to Belleville. He was tasked with preparing the search warrants. He started drafting the search warrants at 3 p.m. He was still working on the search warrants when he received information that his fellow officers had searched Mr. Proulx's vehicle and found two kilos of cocaine in a hidden compartment. He included information about the two kilos of cocaine found in the grey Ford Focus in his information to obtain search warrants for Mr. Testa Serracin's vehicle, his apartment on Lakeshore and the apartment unit at 121 McMahon.
EVIDENCE OF DETECTIVE BACKUS
[27] Arrest Instructions
Detective Backus told Officer Croghan to arrest Mr. Proulx for trafficking in cocaine. He told DC Croghan that he wanted the grey Ford stopped and the driver detained for possession for the purpose of trafficking in cocaine. Officer Croghan testified that he relied on the reasonable grounds of Detective Backus.
[28] Detective Backus' Grounds
Detective Backus testified that his grounds to believe that the driver of the grey Ford Focus had received drugs from Mr. Testa Serracin were based on the information he had received from the Confidential Informant that Mr. Testa Serracin was a drug runner and distributor; the surveillance conducted over several days, including the tracking device information which led the officers to the apartment unit at 121 McMahon; and the observations made by surveillance officers, of the contact between the two vehicles at the Wendy's parking lot, and in the underground parking garage.
[29] Detective Backus' Lack of Direct Observation
Detective Backus was working with the surveillance team on July 6, 2015, but he did not make any direct observations of the two vehicles in the Wendy's parking lot or in the underground parking lot at 1535 Lakeshore road East Mississauga. His evidence about the information he relied on to form his grounds was contradicted by the direct evidence of other members of his surveillance team who made direct observations.
[30] Wendy's Parking Lot Contradiction
Backus testified that at the Wendy's parking lot, Mr. Testa Serracin pulled his car up beside the grey Ford Focus being driven by Mr. Proulx, that "the drivers had a brief chat", and then both cars pulled out of the Wendy's parking lot in tandem. But this evidence is contradicted by the direct evidence of Officers Miranda and Stevenson who both testified that the two cars were not seen parked near each other, and no interactions between the drivers were observed, when the cars were in the Wendy's parking lot.
[31] Underground Parking Garage Contradiction
Detective Backus also testified that the two cars were seen entering the underground parking garage at 1535 Lakeshore, that Mr. Testa Serracin pulled into his regular parking spot, and the grey Ford parked beside it. Detective Backus was not stationed in the underground garage. He testified that officers entered the parking garage about two minutes after the two Ford Focus vehicles entered and the cars were seen parked side by side.
[32] Officer Goulah's Contradictory Evidence
Again, this evidence of proximity of the vehicles, and opportunity for contact between the drivers, clearly important to the reasonable grounds of Detective Backus, was contradicted by the evidence of Officer Goulah who followed the cars into the underground parking lot and testified he did not see the cars together in the underground parking lot, until he observed them driving out of the garage.
[33] Inconsistent Evidence on Vehicle Type
Detective Backus gave inconsistent evidence about the significance of the fact that Mr. Proulx was driving a grey Ford Focus, the same type of vehicle driven by Mr. Testa Serracin. In chief, Detective Backus testified that his belief that Mr. Testa Serracin gave the driver cocaine was supported by the fact that Mr. Proulx was also driving a Ford Focus vehicle. Backus testified that the information from the Confidential Informant was that the drug runners "used this vehicle. At first he said that the confidential informant told him that the drug runners used black Ford Focuses and then he said the Confidential Informant told him the drug runners used Ford Focuses, but didn't specify a colour.
[34] Cross-Examination on Vehicle Type
Under Cross Examination Detective Backus changed his evidence about the significance of the Ford Focus vehicle. He said that he believed that the informant told him that group "…used vehicles with stash boxes…".
[35] Decision to Arrest in Belleville
Detective Backus testified that he didn't want his own officers to arrest Mr. Proulx because their unmarked police cars would have been revealed. Backus explained that he made the decision to have the surveillance team follow Mr. Proulx's vehicle along the 401 and have him arrested near Belleville, because he knew the officers he contacted would need sufficient time to set up for the stop. He said he knew Officer Croghan from working with him in Toronto and he had his phone number. Detective Backus was unable to satisfactorily explain why he could not have made contact with uniformed officers patrolling in the Toronto area and the decision to have Mr. Proulx arrested in Belleville remains a mystery.
ANALYSIS
[36] Reasonable and Probable Grounds Standard
The Crown bears the burden of establishing the constitutionality of a challenged, warrantless search. The reasonable and probable grounds standard that is applied to the power to arrest has two components, the subjective and objective inquiry: R v Storrey, [1990] 1 S.C.R. 241. It is clear from his evidence that Detective Backus honestly believed that there was a reasonable probability that Mr. Proulx had received cocaine from Mr. Testa Serracin, for the purpose of trafficking. The objective inquiry requires proof that, at the time of forming that subjective belief, Detective Backus had sufficient information to enable a reasonable person to come to the same conclusion, on the totality of the circumstances: see R v Bush 2010 ONCA 554 , [2010] O.J. No 3453 (Ont C.A.)
[37] Reliability of Confidential Informant
Detective Backus testified that the Confidential Informant was a proven, reliable source he had used in the past. And certainly the surveillance of Mr. Testa Serracin yielded information that was corroborative of the CI information about Mr. Testa Serracin.
[38] Lack of Direct Evidence of Contact
However, there is no direct evidence of any contact or interaction between Mr. Testa Serracin and Mr. Proulx. In fact there is no direct evidence that the vehicles driven by Mr. Testa Serracin and Mr. Proulx, were even in close enough proximity to one another to have provided an opportunity for the drivers to have spoken to each other or to have exchanged drugs. Detective Backus testified that he relied on information from his surveillance officers that the vehicles were parked side by side in the Wendy's parking lot, where the drivers appeared to have a "brief chat"; and that the vehicles were parked in close proximity to each other in the underground parking lot. Detective Backus obviously felt that these details were important because he relayed them while detailing his grounds to arrest Mr. Proulx. However, the direct evidence of the officers who actually observed the cars in the Wendy's parking lot and the underground parking garage contradicted the evidence of Detective Backus. The cars were never seen parked side by side. In fact they were seen parked at opposite sides of the parking lot at Wendy's, and no officer saw the vehicles parked close to each other in the underground parking garage. They were seen driving in tandem out of the parking lot at Wendy's; and driving in tandem into, and out of the underground parking garage.
[39] Distinction from R v Labelle
The Crown relies on the case of R v Labelle, 2016 ONCA 110, but in that case the surveillance officers observed real interactions between the main target, about whom the police had CI information, and the appellant.
[40] Conclusion on Reasonable Grounds
Detective Backus may have assumed that the cars were parked side by side at Wendy's or he may have drawn an inference that the cars must have been parked close to each other in the underground parking lot, but that isn't what actually happened, according to the evidence of his own officers who made direct observation. Detective Backus is an experienced drug officer who has seen many drug meets and transactions. He had a proven reliable informant and his surveillance team had corroborated much of what the informant was telling him about Mr. Testa Serracin's drug trafficking activities, although no drugs and no hand to hand drug transactions were ever observed by the officers. But it does appear that Detective Backus mistakenly imputed more details to support his grounds to arrest, than actually existed. Detective Backus may have formed a subjective belief that Mr. Testa Serracin gave Mr. Proulx cocaine for the purpose of trafficking but I find that a reasonable person considering the totality of the circumstances and in particular the lack of any direct evidence of any interaction or opportunity for interaction between the drivers of the two vehicles, could not possibly have been able to form the grounds to arrest Mr. Proulx.
[41] Unlawful Arrest and Searches
Since the police lacked reasonable and probable grounds to arrest Mr. Proulx the warrantless searches of his person and his vehicle were not lawful. Even if the arrest of Mr. Proulx had been lawful, I find that the police lacked reasonable grounds to conduct a strip search of Mr. Proulx at the station; and that the deliberate decision, made by the police, to deny Mr. Proulx his right to counsel for 9 ½ hours was also unreasonable and an infringement of Mr. Proulx's 10(b) rights.
SECTION 24(2)
[42] Section 24(2) Test
Section 24(2) directs that where evidence is obtained in a manner that infringes a right guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[43] Strip Search - Lack of Reasonable Grounds
Strip searches are lawful only where the police have reasonable and probable grounds to believe that the accused may be concealing weapons or evidence on his or her person. See: R v Golden 2001 SCC 83 , [2001] S.C.J. no 81. Officer Postma testified that he conducted the strip search of Mr. Proulx based on his experience with offenders who concealed drugs on their person. Officer Postma gave the court the impression that it was routine for him to conduct strip searches of arrested people suspected of drug dealing. Officer Postma knew that Mr. Proulx was suspected of dealing in kilo amounts of cocaine, which was transported and concealed in hidden compartments in vehicles. The officers had no information about either Mr. Testa Serracin or Mr. Proulx having any weapons. Officer Postma had already conducted a thorough pat down search when Mr. Proulx was arrested at the highway before placing Mr. Proulx in the back of his police car, where Mr. Proulx sat without incident for half an hour while the police waited for a tow truck to remove Mr. Proulx's vehicle to the station. Mr. Proulx was cooperative throughout his arrest. I find that the strip search of Mr. Proulx was unnecessary and unreasonable in the particular circumstances of this case.
[44] Right to Counsel - Section 10(b)
Section 10(b) of the Charter requires police officers to inform a detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel. If a detainee has indicated a desire to exercise this right to provide the detainee with a reasonable opportunity to exercise the right, except in urgent and dangerous circumstances and; to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again except in cases of urgency or danger) See: R v Bartle (1993) 92 C.C.C. (3d) 289 (S.C.C.).
[45] Denial of Counsel - 9.5 Hour Delay
At the roadside, when Mr. Proulx was read his right to counsel he said he wanted to call his family to get a number for a lawyer. Not only was he denied this right for 9 ½ hours, but when he was allowed to talk to a lawyer, duty counsel was contacted on his behalf, he was not given an opportunity to contact his counsel of choice. Detective Backus testified that he made the decision to delay Mr. Proulx's right to contact counsel, because he was concerned about officer safety and the integrity of his investigation. He was concerned that if Mr. Proulx was allowed to call a lawyer, the main target might somehow be informed of the ongoing investigation. In the R v Strachan case relied on by the Crown the police delayed the accused's right to counsel for two hours to allow a search for drugs because they knew that the target had two registered hand guns in the home.
[46] Crown's Justification for Delay
The Crown argues in this case that the delay was justified on the grounds of officer safety, given the possibility of Mr. Testa Serracin having weapons, and the need to protect the integrity of the police investigation. The police wanted time to prepare an information and obtain and execute search warrants on Mr. Testa Serracin's vehicle and the two residences associated to him. The police in this case suspected but had no evidence or information, that Mr. Testa Serracin, as a suspected high level cocaine dealer, may have weapons.
[47] Comparison to R v Patterson
This case is similar to the case of R v Patterson (2006) BCCA 24, relied on by the defence. In this case, as in Patterson, the police concerns were of a general nature. The police did not have any evidence that there were weapons in Mr. Testa Serracin's residence or suspected stash house. The decision to search Mr. Testa Serracin's car and residences was not made until after Mr. Proulx was arrested; and the decision to have Mr. Proulx arrested in Belleville, instead of Toronto, a decision that remains difficult to understand, contributed to the delay since the officers had to return to Toronto to execute the warrants. Although Officer Benevides started to prepare the information to obtain the warrants at 3 p.m. the rest of the surveillance team didn't leave for Toronto until approximately 6:30 p.m. after the cocaine was found in Mr. Proulx's vehicle.
[48] Section 24(2) Analysis - Grant Test
The admissibility of evidence under section 24(2) is determined by examining the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter protected interests of the accused and society's interest in an adjudication on the merits: See R v Grant 2009 SCC 32 , [2009] 2 S.C.R. 353.
[49] Seriousness of Charter Breaches
In this case the Charter-infringing state conduct was very serious. The police lacked reasonable and probable grounds to arrest Mr. Proulx. The subsequent Charter breaches were not technical or minor. The police strip searched Mr. Proulx based on what was described to have been a routine approach by the searching officer, and then detained him without any actual evidence or information to support their stated concerns about officer safety and the preservation of evidence, for 9 ½ hours, before giving him an opportunity to speak with a lawyer. And when he was allowed to talk to a lawyer, he was not given an opportunity to contact counsel of his choice.
[50] Impact on Charter Protected Interests
The Charter breaches in this case actually and significantly undermined the Charter protected interests of Mr. Proulx. Strip searches are by their nature demeaning and intrusive and Mr. Proulx's 9 ½ hour wait in a police cell before talking to a lawyer, would have had a significant impact on his dignity and liberty.
[51] Society's Interest in Adjudication on Merits
There is no question that our community has a strong interest in the adjudication of drug trafficking cases on their merits; and in this case, the court is being asked to exclude real, non-conscriptive evidence of two kilos of cocaine found in the vehicle Mr. Proulx was driving.
[52] Conclusion on Section 24(2)
Taking into account all of the circumstances in this case, including the seriousness of the Charter-infringing state conduct, the impact of that conduct on Mr. Proulx and society's interest in seeing this case adjudicated on its merits, I conclude that the evidence should be excluded.
[53] Release Date
Released: June 3, 2016
Signed: "Justice E. Deluzio"
