Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— And —
Miguel Turner
Before the Court
Justice: David S. Rose
Heard: June 26, 27 and 30, 2017
Reasons for Judgment Released: June 30, 2017
Counsel
For the Crown: D. Libman
For the Accused Miguel Turner: P. Aubin
Judgment
Introduction
1Miguel Turner is charged with Possession of Heroin for the Purpose of Trafficking on November 30, 2014. Mr. Turner had a Preliminary Hearing before another judge of this Court, was committed for trial and then elected to have his trial in this Court during the Pre-Trial procedure in the Superior Court. This explains why the case has taken until now to come to trial.
2Mr. Turner alleges that his rights under ss. 7, 8, 9, 10(a), & 10(b) have been infringed and seeks a remedy excluding drugs found in the car he was driving. The trial proceeded as a rolled up voir dire. After hearing from the Crown witnesses Mr. Aubin asked for a ruling on the Charter Application before electing whether to call a defence. Mr. Turner called no evidence himself on the Charter Application.
3In R. v. Nolet 2010 SCC 24 Binnie J. noted that,
…roadside stops sometimes develop in unpredictable ways. It is necessary for a court to proceed step-by-step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry.
Review of the Evidence
4Cst. Morgan of the York Regional Police (YRP) was in uniform on general patrol in a police car on the night of November 30, 2014 in the area of Highway 7 and Keele Street. His practice is to use the CPIC system to run licence plates of other cars on the road, and so it came to be that he queried licence plate BTYM 102, which was attached to a silver Camry travelling ahead of him in the road. There was nothing out of the ordinary which caused him to make this inquiry. It was part of the routine. The query returned with the following:
**CRIME VEHICLE** CRIME: RE-VIN TYPE: AUTO
LIC: BTYM102 PROV: ON LYR:2014 VIN:4TBK46K87U008591
MAKE: TOYO MODEL:CAMR YEAR:2007 STYLE: 4DR COLOUR: GREY
DTO:2013-08-01 00;00 LO:TORONTO
***HOLD***SPECIAL: *HOLD FOR EXPERT EXAM RE: REVINNED VEHICLE
REMARKS
1) **DRIVER\OCCUPANTS MAY NOT BE AWARE OF VEHICLE STATUS**
2) IDENTIFY DRIVER\OCCUPANTS. HAVE DRIVER\OCCUPANTS REMOVE ALL
3) PERSONAL BELONGINGS. SEIZE VEHICLE PURSUANT TO SEC 354(2) CC.
4) ISSUE TPS 405 FOR SEIZURE OF VEHICLE. COMPLETETPS336. HAVE
5) VEHIICLE DELIVERED TO THE SCI-SECURE COMPOUND@ 41 CRANFIELD
6) RD, TOR VIA TPS TOW TRUCK. CONT INVESTIGATORS (416) 808-4547
7) OR (416) 454-8725. ADVISE OF SEIZRE REL TO PROJ "PEPPER 11"
CASE 2014S.2480.D54 EXP: 2015 – 08-31
RECORD OWNER
0N 30570 TORONTO PS RECORDS 416-808-8300 2014 – 09-04 10:53
THANK YOU FOR YOUR TIME AND CONSIDERATION,
MARSHALL 5565 PCOMM
5PC Morgan testified that he had never seen such a return on his computer and called his dispatcher to confirm the information. They did. A dash-cam recording part of the subsequent roadside investigation confirms the dispatcher's reply.
6He understood the message to mean that he had to hold the car for investigation. Ultimately the Camry turned onto Jane Street southbound where Morgan initiated a traffic stop. He testified that there was nothing unusual in the driving. The traffic stop was at 9:37pm. Morgan was candid that he was going to seize the vehicle per the CPIC instructions. PC Morgan was alone in his car and waited for other units to arrive before he got out of his car. Within minutes PC Oster arrived in one police car and parked in front of the Camry to block it in. PC Reid arrived at the same time as Oster. He parked his police car behind Morgan's.
7Morgan testified that when he approached the Camry on foot the driver of the car kept moving his left hand to the left inside of the driver's door. By this time the window of the Camry was down. Morgan identified Mr. Turner as the driver of the Camry. He explained to Mr. Turner the reasons for the stop. He saw his hands go down to the left at least twice. He thought the hand movements of Mr. Turner to be unusual. The door was unlocked and Mr. Turner was told to get out of the car and moved to the rear of the Camry.
8The totality of the situation caused PC Morgan, in his evidence, to be concerned for officer safety so he did a pat down search at the rear of the Camry. He then went into Mr. Turner's pockets and found a wallet and a piece of paper. Within seconds of the pocket search PC Morgan and PC Oster are seen on video moving Mr. Turner off the roadway to the curb area. PC Oster explained that this was for safety reasons. PC Oster explained that the car would be searched because it was being impounded, and was there anything the officers needed to know before doing the search. At that point Mr. Turner said that there was a few grams of weed in the glove box. With that PC Oster arrested Mr. Turner for possession of a controlled substance under the CDSA.
9PC Morgan testified that he would have done an inventory search regardless of Mr Turner being arrested, but once he was arrested and lodged in the back of Oster's car he searched the rear passenger seat of the Camry. He said that he searched a gym bag in the back seat incidental to the arrest but found nothing of evidentiary value.
10PC Morgan testified that the car was registered to a business at 455 Davis Drive in Newmarket. Once Mr. Turner was at the station he called Duty Counsel for him. That was at 22:50. Mr. Turner ended up speaking with Duty Counsel at 23:00.
11In cross-examination PC Morgan testified that the inventory search was a YRP policy. He took the CPIC print-out on its face, and that the CPIC itself furnished grounds for arrest of Mr. Turner. He admitted that he never told Mr. Turner that he was arrestable and never read him Rights to Counsel or cautioned him before he made his utterance about marijuana in the glove box. That said, Morgan also testified that the stop of the Camry was just a traffic stop. In hindsight, he admitted that he should have given Mr. Turner his Rights to Counsel and Caution at the outset. He was also candid that he would not have gone into his pockets prior to arrest.
12PC Oster testified that when he arrived on scene and parked his car he went to the driver's side door of the Camry. At that point he knew this was a call about impounding the car but he had no information that the driver should be arrested. His evidence about seeing Mr. Turner's hands move 2 – 3 times from the steering wheel to the lower portion of the driver's door was consistent with PC Morgan. That gave Oster concerns. Oster explained to Mr. Turner that the Camry was a crime vehicle. He asked Mr. Turner to exit the car which he did. He did a pat down search for officer safety, and then moved Mr. Turner onto the curb area because the area between PC Morgan's car and the Camry was unsafe. In his words it was crush zone, should another car crash into the rear of PC Morgan's car.
13It was at that point 9:39pm and Oster advised that Mr. Turner that this was a traffic stop. PC Morgan had located Mr. Turner's wallet and identification and was confirming his identity through his police radio. While Morgan was doing the check PC Oster explained to Mr. Turner that the vehicle would be impounded because it was a crime vehicle. He said that they needed to do an inventory search and asked Mr Turner if there was anything in the car that the police needed to know about. PC Oster explained in Court that the reason he asked that question was because a police inventory search was going to be done on the Camry before it was towed away, and for officer safety he wanted to know if there was anything he needed to be aware of. In his testimony he explained that when the police do an inventory search they probe the interior with their hands. If there are sharp objects such as knives or syringes the searching officer could be injured. Oster was firm in his testimony that the only reason he asked that question was for officer safety.
14Mr. Turner then said to PC Oster that there was a small amount of marijuana in the glove box. With that utterance Oster arrested Mr. Turner at 9:45 pm. for possession of a controlled substance. Mr. Turner was handcuffed, and lodged in the rear of PC Morgan's car.
15PC Oster then participated in the search of the Camry. He went to the glove box where he found a mason jar with what appeared to be marijuana. He located some loose change and personal items. About $515 in small bills and change was found in Mr. Turner's wallet. Ultimately the Camry was sealed and taken to an impound yard. Oster said he had no further involvement with the case. He had never met Mr. Turner before that evening.
16In Cross-Examination PC Oster said that Mr. Turner was detained but not in custody. He described Mr. Turner's status before the marijuana utterance as a witness and nothing more. He was not considered a suspect. The nature of the detention was, in Oster's evidence, to find out information about the vehicle and whether or not it was stolen. He was asked why he never cautioned Mr. Turner and explained that he had nothing to caution him for. In Oster's evidence Mr. Turner was just a witness. He described the YRP police to do inventory search with an acronym LACT. This means that in sequence, a police officer choosing to search a car should: look; act; clear; and then touch. Once Mr. Turner was arrested for being in possession of marijuana the search of the car became incidental to that arrest.
17When the silver Camry was pulled over, a third uniformed officer arrived on scene, PC Reid. He knew about the reason for the stop and the CPIC entry. On the video he can be seen initially standing on the driver side of the Camry. He heard Oster and Morgan speaking with Mr. Turner but could not recall what they were saying at the beginning. When Mr. Turner moved to the curb area of the road he heard Oster asking if there was anything he needed to know before doing an inventory search. Mr. Turner said there was weed in the glove box. He testified that he always has safety concerns but there was nothing specific to the situation. He said that the CPIC entry elevated this beyond a general traffic stop.
18After Mr. Turner was in custody two plain clothes detectives, Matte and Goard, arrived on scene. They happened to be in the area and came to assist the uniformed officers with the investigation. Det. Matte testified that he searched the driver's area of the Camry. He found two cell phones in the pocket of the driver's door. He also found a rectangular object wrapped in saran wrap secreted in the same pocket. It was about 1.5" square, tied together with an elastic band. He opened the saran wrap and noticed it to contain an off white chalky substance with an acidic ammonia odour. He testified that it looked like cocaine.
19Matte found two other items. Both were in the front console between the driver's and passenger's seat. One was an undated receipt from Tint City in the name of Andy Smith. It had a phone number of 416 743 4030. There was also a digital scale in the center console.
20Ultimately the substance in the saran wrap tested to be a mixture of heroin and caffeine. It weighed 15g in total. When Goard searched the front passenger area he found 6 blank pro line sheets which had not been filled out. He also found at least 1 bottle of cologne and bottles of Febreze, the deodorant. All of these were recorded in a Report to a Justice.
21He also testified that the Camry was registered to an address at 455 Davis Drive, and that when he went to that location in May 2016 455 Davis Drive was a vacant parking lot.
22The Crown called Det. Ahmed Salhia who was qualified to give an opinion as an expert in Heroin: Terminologies, Subculture, Consumption, Pricing and Distribution. He testified that the seizure from the Camry on the night of November 30, 2014 was for the purpose of trafficking.
Issues
Was there a violation of Mr. Turner's rights under ss. 7, 10(a) and 10(b) of the Charter?
Was the search of Mr. Turner and then the car a contravention of Mr. Turner's rights under s. 8 of the Charter?
If the answer to either 1 or 2 is yes, should the evidence be excluded under s. 24(2) of the Charter?
Analysis
Issue #1: Violation of Rights Under ss. 7, 10(a) and 10(b)
23Mr. Libman concedes that Mr. Turner's rights under s. 10(b) were violated. This is a fair concession. With that in mind it is still necessary to review the nature of that breach.
24The evidence is clear that Mr. Turner was detained from the moment that the silver Camry he was driving was stopped by PC Morgan. Stopping a motorist involves a measure of control over the driver by demand or direction, see R. v. Hufsky (1988), 63 C.R. (3d) 14 (S.C.C.), and R. v. Ladouceur (1990), 77 C.R. (3d) 110 (S.C.C.). I find that the detention of Mr. Turner became elevated when he was asked to exit his motor vehicle and then again when his pockets were searched at the rear of his car. At that point the video is clear that PCs Morgan and Oster have their hands on Mr. Turner and have assumed physical control and are restraining him.
25The police are entitled to detain individuals where they have reasonable grounds to suspect that the person had been involved in criminal activity see R. v. Simpson (1993), 20 C.R. (4th) 1 (Ont. C.A.); R. v. Mann 2004 SCC 52 , [2004] 3 S.C.R. 59 (S.C.C.). With reasonable grounds to suspect the police power is circumscribed. As Doherty JA said in Simpson at par. 66,
If articulable cause exists, the detention may or may not be justified. For example, a reasonably based suspicion that a person committed some property-related offence at a distant point in the past while an articulable cause, would not, standing alone, justify the detention of that person on a public street to question him or her about that offence. On the other hand, a reasonable suspicion that a person had just committed a violent crime and was in flight from the scene of that crime could well justify some detention of that individual in an effort to quickly confirm or refute the suspicion. Similarly, the existence of an articulable cause that justified a brief detention, perhaps to ask the person detained for identification, would not necessarily justify a more intrusive detention complete with physical restraint and a more extensive interrogation.
26There is nothing in the evidence which might justify the police searching Mr. Turner's pockets pursuant to his detention. The police had no information that he knew that the car was stolen, they had no information that he was violent. They saw unusual hand movements, but that does not rise to the level where they had the grounds to physically restrain Mr. Turner and search his pockets. In R. v. Ellis 2016 ONCA 598 Hourigan JA added gloss to Mann, explaining that if an initial pat down search justified a more invasive search for safety purposes such a search would not violate s. 8. That does not apply in this case because PC Morgan had insufficient grounds to do a pocket search at the outset. In his evidence PC Morgan fairly conceded that if it had happened all over again, he would not have searched Mr. Turner's pockets. I have no difficulty in concluding that the pocket search of Mr. Turner was unreasonable because the detention of Mr. Turner did not permit that level of intrusiveness. In this regard the facts before me are similar to those in Mann, where the Court held that a common law power of detention permitted a pat down search for officer safety, but not a more intrusive pocket search.
27Those detained at common law have other rights. They must be advised of the reason for the detention, and in this case Mr. Turner was indeed told that the car was stopped, because there was information that the car had been re-vinned and was going to be impounded. In the circumstances there is no s. 10(a) breach.
28PC Oster testified that Mr. Turner was at that point a witness to a crime, but I struggle with this. Mr. Turner had been driving a car which the police were told had been re-vinned. To say that Mr. Turner was in the same position as a person who happened to have seen something criminal independent of them is a stretch. That said, I do agree with the testimony of PC Oster that the police had no grounds to arrest Mr. Turner. The CPIC information was clear that "DRIVER\OCCUPANTS MAY NOT BE AWARE OF VEHICLE STATUS". With that information in hand and nothing more, there were no grounds to arrest the driver or occupant.
29Given my finding that Mr. Turner was physically detained when he was outside of his car, and had his pockets searched, the question is what legal rights did he have at that moment? More to the point, did the police have an obligation to advise Mr. Turner of his rights to counsel prior to eliciting his statement that he had marijuana in the car.
30The facts before me have more than a passing resemblance to those in R. v. Grant 2009 SCC 32. In Grant the officers approached the Appellant, a pedestrian, and began to question him because of how he physically appeared. The questioning was this,
Q. Have you ever been arrested before?
A. I got into some trouble about three years ago.
Q. Do you have anything on you that you shouldn't?
A. No. (Pause.) Well, I got a small bag of weed.
31Much of the appeal in Grant deals with whether the Appellant was legally detained at that moment, and the Court concluded that he was. I have already concluded that Mr. Turner was detained when he was asked if he there was anything in the car that PC Oster needed to know about. The analysis in the case at Bar therefore meets up with Grant at the point when the question is about what rights fell to Mr. Grant once he was detained and subject to police questioning. The Court found that he had the right to counsel because of the operation of s. 10(b) of the Charter. In their opinion McLachlin CJC and Charron J. said,
58 In R. v. Suberu, 2009 SCC 33 (S.C.C.), we conclude that the s. 10(b) right to counsel arises immediately upon detention, whether or not the detention is solely for investigative purposes. That being the case, s. 10(b) of the Charter required the police to advise Mr. Grant that he had the right to speak to a lawyer, and to give him a reasonable opportunity to obtain legal advice if he so chose, before proceeding to elicit incriminating information from him. Because he now faced significant legal jeopardy and had passed into the effective control of the police, the appellant was "in immediate need of legal advice": R. v. Brydges, [1990] 1 S.C.R. 190 (S.C.C.), at p. 206. Because the officers did not believe they had detained the appellant, they did not comply with their obligations under s. 10(b). The breach of s. 10(b) is established.
32In the case before me the police were investigating a re-vinned vehicle. The CPIC entry even quotes s. 354(2) of the Criminal Code. PC Morgan was candid that there was no apparent HTA infraction connected with the Camry. The whole purpose of the stop was to seize property the police believed to be involved in a criminal offence. That brought Mr. Turner directly into a police investigation as an individual who easily could have knowledge of the ownership of the car, or at least the person who gave him permission to drive the car. All officers at the scene had that knowledge from the CPIC entry. This is the factual backdrop against which Mr. Turner exits the car and begins to interact with the police. Any suggestion that he was a mere witness is unquestionably rejected once his pockets are searched. Mr. Libman's concession of the s. 10(b) breach is a fair one.
Issue #2: Was the Search of the Car in Violation of Mr. Turner's Rights Under s. 8 of the Charter?
33Mr. Libman argues that the search of the Camry which yielded the heroin can be justified two ways. One is pursuant to statute, and the second at common law. There is no question that the Crown must justify the search of the Camry as a warrantless one, see Hunter v. Southam, [1984] 2 S.C.R. 145, R. v. Haas, 76 O.R. (3d) 737 (C.A.). It is axiomatic that a reasonable search has three prerequisites: it must be authorized by law; the law itself must be reasonable; and the search must be conducted in a reasonable manner See R. v. Collins 33 C.C.C. (3d) 1 (S.C.C.). In the case at Bar was the search of the Camry authorized by law?
34Factually I find that the York Regional Police were told to seize the vehicle but were never told to search it. The CPIC direction instructed them to "Have the driver/occupants remove all personal belongings". Nowhere were they told to search it at the roadside.
35Having concluded that Mr. Turner's utterance about being in possession of marijuana was taken in violation of his right to counsel, his arrest, which turned on that utterance and nothing else, is similarly unlawful. PC Oster testified that the search was incidental to arrest, and this was confirmed in the Report to a Justice filed as an exhibit. I find that the search was undertaken incident to Mr. Turner's arrest on the marijuana charge, but that was dependent on an utterance obtained in violation to s. 10(b). The arrest was unlawful and therefore the search incident to arrest was in violation of s. 8 of the Charter.
36I have considered whether, absent a lawful search incidental to arrest, the search of the Camry can be justified by any other means. Certainly PC Morgan, Oster and Reid had sufficient information to seize the vehicle pursuant to s. 489(2) of the Criminal Code. Mr. Aubin's concession on this point is a fair one. The CPIC information gave them that much. That provision permits seizures but does not go so far as to permit searches. Jurisprudence from senior appellate courts confirms this, see R. v. Fawthrop, 161 O.A.C. 350; R. v. Bottineau 2011 ONCA 194; R. v. Vu 2013 SCC 60 at par. 49. I find that s. 489(2) of the Criminal Code did not furnish grounds to search the Camry.
37Was the search of the Camry authorized by law as an inventory search? In R. v. Caslake, [1998] 1 S.C.R. 51 the Court was asked to find that that the police had a common law power to search a vehicle as an inventory search. They declined to make that finding. Speaking for the majority, Lamer C.J.C. framed the issue this way,
In my view, this is not an appropriate case to decide this question. In order to meet the standards set out by the Charter, all searches must be authorized by law. Warrantless searches are prima facie unreasonable, and the burden shifts to the party who is seeking to uphold the search. This means, inter alia, the party must be able to point to a law which authorizes the search. The respondent was unable to find either statutory or common-law authority for inventory searches. Hence, for the purposes of this appeal, I would hold that the inventory search is not authorized by law and therefore violates s. 8 of the Charter. Whether such a law would be consistent with s. 8 need not be answered here. Suffice to say that an inventory search per se does not serve a "valid objective in pursuit of the ends of criminal justice" (Cloutier, supra, at p. 186) in the context of an arrest such that it can be justifiably carried out under this warrantless common-law power. Its purposes relate to concerns extraneous to the criminal law. If the police feel the need to inventory a car in their possession for their own purposes, that is one thing. However, if they wish to tender the fruits of that inventory search into evidence at a criminal trial, the search must be conducted under some lawful authority.
38In other words, an inventory search may well be conducted by the police for purposes of protecting themselves from civil liability should there be a question regarding what was in the vehicle when the police took possession of it, but the use of that power for investigative purposes is not recognized at common law because it does not serve a valid objective in criminal law. Subsequent inventory search cases have therefore turned on whether there was statutory or regulatory authorization to conduct a search, see for eg. R. v. Nolet (supra) R. v. Nicolosi, 40 O.R. (3d) 417 (C.A.), R. v. Lamour R. v. Waugh 2010 ONCA 100, R. v. Dunkley 2016 ONCA 597; R. v. Ellis 2016 ONCA 598; and R. v. Harflett 2016 ONCA 248.
39In this case the police did not testify that the grounds for searching the car were pursuant to any particular statute. The Crown before me argued that both s. 221 of the Highway Traffic Act and s. 354(4) of the Criminal Code furnish grounds to search the car. I would reject that proposition for the following reasons.
40Mr. Turner was physically removed from the car by the police and detained at the scene. There is no evidence that he chose to depart the scene or the vehicle. He couldn't because, according to PC Oster, he would have been arrested. The evidence is overwhelming that Mr. Turner did not factually abandon the vehicle. Mr. Libman valiantly argues that there was a constructive abandonment because the car was subject to the CPIC instruction about re-vinning and seizure. In that regard I have no evidence that the car was actually re-vinned or improperly registered when Mr. Turner was pulled over. The CPIC may have been accurate, but I have no evidence of that. The police may not use their own information to seize the car and then claim that their seizure amounts to abandonment which furnishes authority under s. 221 of the Highway Traffic Act.
41Mr. Libman's second argument is that s. 354(4) of the Criminal Code furnishes statutory grounds to search the car because the section creates lawful authority for the police to possess stolen property. I would reject that proposition too. Nowhere in s. 354(4) is a search power conferred. That section merely furnishes a statutory defence to police officers in possession of stolen property for police purposes. Had Parliament conferred search powers on the police in s. 354(4) it would have said so.
42Lastly, the Crown argues that there is a common law authority to search the vehicle. It is worth quoting Blair JA from R. v. Waugh 2010 ONCA 100, which is another case where the Crown sought to justify a police search of a car pursuant to both the Highway Traffic Act and at common law.
I accept that courts should be cautious in extending police power by resort to their common law ancillary powers, particularly in circumstances where the legislature has put in place an elaborate and comprehensive regulatory regime with carefully balanced powers and sanctions.
43There are two prongs to the common law, ancillary powers doctrine. Quoting again from Waugh, at par. 32. It is a case specific evaluation of:
[Whether the police conduct in question] falls within the general scope of any duty imposed by statute or recognized at common law; and
Whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
44Following Caslake, there is no free standing, recognized general inventory search in criminal cases. There is such a power when the police enforce regulatory regimes which require a vehicle to be taken from the scene because of the inherent danger in leaving a motor vehicle abandoned on the roadway, but no free standing common law power to search is recognized. I would not do so in this case. The police on scene in this case were told to seize the car, not search it. The vehicle was to be analyzed by another force. There was no information at the hands of any of the York Regional Police which might justify safety or other concerns about the car as it was being held in the custody of the police. While I do not have to make the finding, it strikes me that a further search of the car by Toronto Police regarding the re-vinning allegation would require prior judicial authorization. York Regional Police were in no better position.
45I also find that, had the York Regional Police done a simple plain view of the vehicle from the exterior using their lawful vantage point on the roadway, such a plain view would not have yielded a glance of contraband which would have generated further grounds. The drugs, and scales were simply not in plain view.
46In sum, there was a s. 8 violation when the police searched Mr. Turner's pockets and a second one when they searched the Camry driven by Mr. Turner without prior judicial authorization and without any justification in law.
Issue #3: Should the Evidence of Heroin be Excluded Under s. 24(2) of the Charter?
47As a threshold issue, I have little difficulty in finding that the evidence in this case, the heroin, was obtained in a manner that infringed Mr. Turner's Charter rights. The discovery of the evidence relied on Mr. Turner's admissions and the seizure very closely followed his detention in the Camry. I would apply the Court of Appeal's ruling in R. v. Pino 2016 ONCA 389, and R. v. Plaha (2004), 188 C.C.C. (3d) 289 in favour of the Accused.
48Taking the three part test from Grant (supra) in stages.
1) Seriousness of the Breach
In this case I would find that the presence of two separate Charter violations tends to elevate the seriousness of the Breaches. I would also find that both PC Morgan and Oster did not appreciate the significance of their encounter with Mr. Turner. They failed to understand that Mr. Turner was detained, should not have had his pockets searched, and should have been given his Rights to Counsel before speaking with him about the car which they had reason to believe had been illegally re-vinned. I completely reject the suggestion that neither officer could have appreciated the significance of the situation. Driving a re-vinned car put Mr. Turner quite literally in the driver's seat of a crime scene. The encounter started as a crime investigation and the failure of the police to treat it that way elevates the seriousness of the breach. The police may have had good intentions, but that does not detract from the seriousness given that the law regarding both the s. 10(b) and s. 8 breaches has long been settled. To state the obvious, both Grant and Caslake were decided many years before the facts of this case arose. I find that the police conduct in this case was not so much intended to deliberately vitiate Mr. Turner's rights, but rather one of negligent or cavalier exercise of police powers see R. v. Brown 2012 ONCA 225, Ellis (supra) at par. 68 which is not good faith. I say that recognizing that the police were polite and respectful with Mr. Turner during the course of their encounter.
I would also find that this is one of those cases where an individual is, in a very short period of time, taken from being a motorist to being surrounded by three police cars, and being subjected to a pocket search by one of three on-scene uniformed officers. Questioning follows immediately. The power imbalance demonstrated suggests that this is the precise reason why s. 10(b) rights needed to be given to Mr. Turner immediately. Here the s. 10(b) violation leads to the s. 8 violation, and is therefore all the more serious see R. v. Taylor 2014 SCC 50.
Consideration of the first factor in Grant strongly pulls towards exclusion.
2) Impact on the Accused's Rights
51Turning to the second factor in Grant I would again observe that, while the CPIC entry furnished the police with grounds to seize the Camry, there is no evidence beyond that, that the Car was in fact stolen or re-vinned. The CPIC entry is hearsay evidence of limited value. I heard evidence that the owner of the car had an address which turned out two years later to be a vacant lot, but that is far from sufficient to prove that the Camry was stolen. That matters because if the Camry were in fact stolen, then Mr. Turner's privacy interest in it qua driver, might be significantly reduced to the point of not having standing. But on the evidence Mr. Turner had a privacy interest which was reduced simply because of its nature as a car.
52The Charter violations impacted his personal integrity insofar as PC Morgan put his hands in Mr. Turner's pockets without legal justification. The impact on Mr. Turner extends to making inculpatory utterances which resulted in a search and seizure. I would not speculate on the legal advice Mr. Turner might have received, but I would find that when a detainee makes an inculpatory utterance without having first being advised of basic rights, the utterance cannot be said to be that of an informed person see Taylor (supra) at par. 41. I have rejected the argument that there was any other, lawful authority for the search of the Camry. I have no difficulty in concluding that the second factor of Grant pulls strongly towards exclusion.
3) Society's Interest in Adjudication on the Merits
53The first two factors of Grant work in tandem. When both pull strongly towards exclusion there is no real need to proceed to the third, see R. v. McGuffie 2016 ONCA 365 at paras 62 – 64. That said, I would say this about the third factor. Society always has an interest in adjudication of trials on their merits. The question is, in a given case, by how much? In this case the impugned evidence is a seizure which was secreted in a car door driven by the Accused. The question at trial is whether Mr. Turner was in possession of the substance given that the car was registered to a company. It is not the same as reliable evidence like breath tests. That said, possession of heroin for purpose of trafficking is a very serious charge. No one can deny that there is a heroin and opioid epidemic in Canada which is fuelled by drug dealers. Society does have a very high interest in the adjudication of such cases on their merits. I recognize that exclusion of this evidence will have the opposite effect because it will entirely denude the Crown case.
Conclusion
54Balancing all three factors I would exclude the both the utterances and the heroin evidence.
Released: June 30, 2017
Signed: Justice David Rose