ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
JAMAL SAMUELS
Before Justice Paul F. Monahan
Heard on February 20, 2019
Reasons for Judgment released on April 2, 2019
Reasons for Judgment with corrections for typographical errors released April 2, 2019
D. Portolese counsel for the Crown
D. Varilone for the defendant Jamal Samuels
Introduction
1Mr. Jamal Samuels is charged with the following:
(i) obstruct a peace officer engaged in the execution of his duty when questioning the accused during a traffic stop by giving false information contrary to section 129 (a) of the Criminal Code;
(ii) breach of recognizance for being out of his residence contrary to the terms of a recognizance requiring that he remain in his residence except for medical emergencies or court appearances or meeting with his lawyer contrary to section 145 (3) of the Code; and
(iii) breach of recognizance for being out of his residence without being in the presence of his surety or other named persons contrary to section 145 (3) of Code.
2While I will review the facts in greater detail below, at this stage I will say that the case involved a purported Highway Traffic Act stop and investigation. Mr. Samuels was a passenger in a vehicle which turned into a “Motel 6” in Mississauga and which was ultimately stopped by a police officer from Peel Regional Police who would become the arresting officer. The Motel 6 is known by police (including by the arresting officer) to attract criminal activity and “unsavoury behaviour”. The arresting officer told the court that he initiated a traffic stop of the vehicle when it failed to signal left and when it turned left in an unsafe manner into the Motel 6. Mr. Samuels was questioned by the arresting officer and Mr. Samuels gave him a false name and date of birth. He then asked to use the washroom but instead of doing so he got into another vehicle which started to drive away. The arresting officer then moved his vehicle to block the exit and drew his firearm and pointed it at the occupants of the second vehicle (the driver and Mr. Samuels) in order to stop it and the vehicle did stop. He placed Mr. Samuels under arrest and the arresting officer said he told him at that time that it was for obstruction of a police officer. Thereafter the arresting officer determined that he was on recognizances to remain inside his residence except for certain exceptions which did not apply. He was ultimately charged with obstructing a police officer contrary to section 129 for providing false information and two counts of breach of recognizance.
3The defence brought a Charter application at trial alleging violations of section 8, 9, 10(a) and 10(b) of the Charter and seeking to exclude evidence obtained in violation of the defendant’s Charter rights pursuant to section 24 (2).
4The trial and the Charter application were heard on a blended basis on consent. The Crown called as witnesses the arresting officer as well as a second officer who came to the scene to assist. The defence called no evidence on the Charter application or the trial proper.
The Evidence
The Arresting Officer
5The arresting officer was the principal witness for the Crown. He testified that he was in uniform capacity operating a fully marked police cruiser when he saw a BMW turn left into the Motel 6 off of Argentia Road in the City of Mississauga. It is common ground that the defendant Mr. Samuels was sitting in the front passenger seat of that vehicle.
6The arresting officer testified that when the vehicle turned left into the Motel 6 it did not use its turn signal and that it also did not leave enough room between it and the oncoming vehicles it turned left in front of. He ultimately issued no traffic ticket to the driver but he said that if he had it would have been for the failure to signal rather than the unsafe turn. The arresting officer said that he entered the motel property and “conducted a traffic stop on that vehicle in relation to the Highway Traffic offence that had occurred”.
7The officer testified that before approaching the vehicle he had run a check on the registered owner using the licence plate of the vehicle. That check indicated that the registered owner was facing pending charges of impaired operation of a motor vehicle and “possession of CDSA”.
8When the BMW went into the Motel 6, it drove to the entrance of the motel where there was an overhang as well as pillars and a small garden. The arresting officer said that the driver of the vehicle exited the vehicle and went to the front entrance of the motel. The officer said he did not pursue the driver into the motel as he did not want to harm the hotel’s business by “causing a scene”.
9The officer turned his attention to the passenger of the vehicle, Mr. Samuels. Mr. Samuels is a young black man. The information before the court discloses that he was born in August 1996 meaning he would be just 21 years old at the time of these events in April 2018. The officer went up to passenger window of the BMW vehicle and spoke to Mr. Samuels who was in the front passenger seat. He said that Mr. Samuels rolled down the window and the officer could smell freshly burnt marijuana. He said the passenger was intoxicated. The officer testified that he was not interested in investigating the marijuana or the intoxication of the passenger. He confirmed that he had no reason to suspect that Mr. Samuels was involved in a Highway Traffic Act violation or in any criminal misconduct.
10The arresting officer said that he engaged in “chitchat” with the passenger “just as I would speak to someone generally in or out of uniform”. He said that in the course of this “chitchat”, the passenger gave him his name and date of birth. The name provided was Jonathan Harvey and the date of birth was 1994/10/19. It is common ground that this was not the name or date of birth of Mr. Samuels. The officer said that he was unable to remember what prompted the giving of the name and date of birth. He acknowledged in cross-examination that people would not generally give their name and date of birth without the officer asking for it.
11The driver of the vehicle came out at some point and the officer obtained his driver’s licence. The officer then went back to his cruiser and began to run the names of both the driver and the name Mr. Samuels had given him through the “police query tool” (“PQT”). The PQT provides information about, among other things, a person’s criminal history.
12During the time the officer was running the names through the PQT, Mr. Samuels approached the arresting officer and asked if he could use the washroom and the officer said that he could. The officer denied that Mr. Samuels was detained at this point. He said that “he is free to do as he wishes. He doesn’t need my permission to go to the bathroom”. Nevertheless, the officer’s police notebook included a note that said he “allowed” Mr. Samuels to use the washroom. The arresting officer assumed that Mr. Samuels would go into the motel to use the washroom. Instead, Mr. Samuels got into the passenger seat of a white Mercedes. That vehicle drove around the back of the motel but before it could leave the arresting officer moved his police vehicle to block the exit and pulled out his firearm and pointed it at the occupants of the Mercedes in order to stop the vehicle. At this point the arresting officer said he placed Mr. Samuels under arrest for obstructing a peace officer for giving a false name. The arresting officer said he was not 100% sure that he had run the name “Jonathan Harvey” through the PQT by that point in time but that he thought that he had and that the result indicated that there was no driver’s licence associated with that person. He said that this information, together with the fact that Mr. Samuels asked to use the washroom and then got into another vehicle, led him to believe that the name must have been a false name.
13As concerns the chronology of events, the arresting officer said that he went over the radio with a traffic stop at 8:52 PM. He said the arrest for the obstruction charge occurred at 9:02 PM at which time Mr. Samuels was being held at gunpoint and was handcuffed. Mr. Samuels was cooperative and provided his real name at that point. The arresting officer did further computer searches after that time and says he advised Mr. Samuels of additional charges. The officer stated that “at 2109 [9:09 PM]… Now I’m able to understand exactly what I’m dealing with, who I am dealing with, and how to proceed”. This led to the charges of breaches of recognizance in addition to the obstruction of the police officer.
14At 9:12 PM, the arresting officer began to give Mr. Samuels rights to counsel. Mr. Samuels did indicate that he wished to speak to counsel. The arresting officer said that Mr. Samuels would have been given an opportunity to speak to his own lawyer or duty counsel and that the duty officer at the station would have arranged this.
The Assisting Officer
15The assisting officer testified that he heard a radio call whereby the arresting officer was requesting assistance. He attended at the Motel 6. The arresting officer had his firearm out at the time that the assisting officer arrived. He asked the assisting officer to handcuff Mr. Samuels which he did. The assisting officer remembered the arresting officer saying that Mr. Samuels was under arrest but he did not remember what for.
Issues
16This case largely turns on an analysis and a determination of the Charter issues. Those issues are as follows:
At what point was Mr. Samuels detained? Was Mr. Samuels arbitrarily detained at any time contrary to section 9?
Were Mr. Samuel’s section 8 rights violated?
Was there a violation of Mr. Samuels section 10(a) and 10(b) rights?
If there were any Charter breaches, should any evidence be excluded pursuant to section 24(2) of the Charter?
Has the Crown proved the charges of obstruct and breaches of recognizance beyond a reasonable doubt?
17I will examine each issue in turn.
Issue 1 – At what point was Mr. Samuels detained? Was Mr. Samuels arbitrarily detained at any time contrary to section 9?
Introduction to the Issue
18The question of detention is an important one in a case such as this one. A police officer can ask a person who is not detained for their name and/or identification even if they do not suspect the individual is guilty of any misconduct (see R. v. Grafe, 1987 CanLII 170 (ON CA), [1987] O.J. No. 796 (C.A.); R. v. Hall, 1995 CanLII 647 (ON CA), [1995] O.J. 544 (C.A.); and R. v. Cartwright, [2017] O.J. No. 5950 (Sup. Ct.). However, once detained, the person has a right to silence and questions and answers in this circumstance will be a violation of s. 8 of the Charter: see R. v. Harris (2007), 2007 ONCA 574, 87 O.R. (3d) 214 (C.A.) at para. 40.
19Where a person is physically restrained such as when they are handcuffed, it is obvious that they have been detained. More difficult questions arise where there is no physical restraint. There may be a psychological detention where a reasonable person would conclude that they had no choice but to comply by with the requests of police. In order to determine whether there has been a psychological detention such that a reasonable person would conclude that they have been deprived of their liberty, the Court must consider, among other things, the circumstances giving rise to the encounter as they would be perceived by the individual; the nature of the police conduct; and the particulars or circumstances of the individual where relevant including their age, physical stature, minority status and level of sophistication. The foregoing statement of principles is derived from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 44; see also R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460.
20Mr. Samuels was clearly detained by the time the arresting officer stopped the Mercedes vehicle at gunpoint. As I will explain below, it is my view that there was no reasonable and probable grounds to arrest Mr. Samuels when the police did arrest him at gunpoint at 9:02 PM nor was there a basis for an investigative detention at that point in time. On his own evidence the arresting officer said, among other things, that he arrested Mr. Samuels at gunpoint on “a sense and a hunch”. However, before addressing that issue I will turn to an analysis of the initial interaction between the arresting officer and Mr. Samuels, including whether a detention occurred earlier than the arrest at gunpoint and if it was arbitrary. It is my view that Mr. Samuels was arbitrarily detained at the time of the initial traffic stop and I will explain why below.
The Highway Traffic Act Investigation
21The arresting officer refers to his initial interaction with the BMW as a “traffic stop for Highway traffic purposes”. It is unclear from the evidence whether the arresting officer activated his police cruiser’s lights or not when he drove up to the BMW. This was not a typical Highway Traffic Act stop where a police officer pulls up behind a vehicle and activates the police vehicle’s lights and the vehicle in question pulls over. In the case, by the time the arresting officer got to the BMW, that vehicle was already stopped in front of the motel and the driver was out of the vehicle and in the motel office but the passenger, Mr. Samuels, was still in the car. In my view, while the arresting officer did not stop the BMW in the typical way, I accept that by the time he drove up to the vehicle he was intending to effect a stop on the vehicle and the vehicle’s occupants.
22A traffic stop for Highway Traffic Act purposes is a permissible exercise of police authority in furtherance of the objective of public safety. However, a traffic stop detention may not be used as a ruse or a gimmick for a general criminal investigation: R. v. Pinto (2003), 46 M.V.R. (4th) 463 at para. 36 (Sup. Ct. per Hill J.). The use of highway traffic powers as a pretext for a criminal investigation is an improper use of police power: R. v. Guenette, [1999] J.Q. 760 (C.A.) at para. 14.
23As I have already indicated, by the time the arresting officer pulled his cruiser up to the motel apparently beside the BMW (with a small garden in between), the driver was already out of the vehicle and in the motel. Rather than wait for the driver, who would have to be the only potentially legitimate object of his Highway Traffic Act stop or investigation, to return to the vehicle, the arresting officer exited his police cruiser and walked up to the passenger side of the BMW to speak to the passenger. The arresting officer remembers nothing of what was said but he made a point of telling the Court no less than nine times in his evidence that he was merely involved in a “general chat” or “chitchat” with the passenger just as he would be with anyone in or out of uniform. He was unable to explain how, out of that “chitchat”, materialized a name and date of birth being given by Mr. Samuels to him. To be clear, there is no doubt in my mind that there was little or no chitchat going on. In my view, the arresting officer was focused on asking the passenger for his name and date of birth and he did so for one reason only: he wanted to know who he was dealing with and the officer planned to run the name and date of birth given through the PQT system in order to obtain, among other things, the person’s criminal history, if any.
24There were a number of important points in the evidence of the arresting officer which gave me reason to be concerned about some aspects of his credibility. First, his repeated references and attempts in his evidence to characterize his interactions with Mr. Samuels as “chitchat” and a conversation that the officer would have had in or out of uniform when, as I have indicated, there was little or no chitchat going on gives me pause concerning the arresting officer’s evidence. Second, notwithstanding the arresting officer’s evidence that he likes to know who he is “dealing with” he would not admit to what was obvious to the Court namely that the purpose of the purported “chitchat” was to find out who he was dealing with. Third, he had trouble even acknowledging that he was engaged in an “investigation” of the passenger notwithstanding that he admitted that he was taking the name and date of birth provided and running it through the PQT to find out who he was dealing with. Fourth, the officer said that when he was running the names through the PQT system and Mr. Samuels asked him if he could use the washroom, the officer told the court “at that stage, he’s free to do as he wishes. He doesn’t need to ask my permission to go the bathroom”. If Mr. Samuels was free to do as he wishes, I am not sure why the officer would arrest Mr. Samuels at gunpoint when he chose to leave.
25The foregoing points provide some examples as to why I have concerns about whether this was a bona fide traffic stop for Highway Traffic Act purposes in the first place. It may be that the vehicle did not signal left and made an unsafe turn. It seems to me that the arresting officer was not particularly concerned about the enforcement of the Highway Traffic Act. As the arresting officer acknowledged “I'm not a traffic guy” and he was not going to give the driver a ticket for a Highway Traffic Act violation and he did not ultimately do so. It is also clear to me that the arresting officer was interested in why the BMW was headed to the Motel 6 and the arresting officer knew that the Motel 6 was a place where criminal activity had occurred in the past. He clearly wanted to know whether the occupants of the BMW, including Mr. Samuels, were involved in criminal activity associated with the Motel 6 or otherwise. In my view, that was at least one of the reasons that he stopped the vehicle, in addition, perhaps, to the Highway Traffic Act concerns. Further, in my view, that was also why he did not wait for the driver to return before questioning Mr. Samuels. The driver was the only potential legitimate object of the purported Highway Traffic Act investigation yet the officer’s first step once he exited his police cruiser (after he had searched the vehicle licence plate) was to speak to Mr. Samuels to get his name and date of birth so that he could run the information through the PQT system. That step was not part of any Highway Traffic Act investigation. The officer wanted to find out Mr. Samuels’ criminal history and, in my view, Mr. Samuels was going to have to wait until that had been done to the officer’s satisfaction.
26On the other hand the defence called no evidence on the bona fides of the initial stop or on any other issue. While I have some concerns about this point, I am prepared to assume that the initial stop included a bona fide Highway Traffic Act concern even though it is clear to me that it also included a desire to figure out if the occupants were in involved in criminal activity at the Motel 6 or otherwise.
Was Mr. Samuels’ Detained at the Outset?
27Even though I am prepared to assume that the initial approach to the vehicle included a bona fide Highway Traffic Act purpose, it does not really matter on my assessment of the facts and the law. In my view, the arresting officer chose to defer any Highway Traffic Act investigation when he decided not to follow the driver into the motel or simply to wait for him to come out and chose instead to focus his attention on the passenger, Mr. Samuels, to try to figure out who he was and if he had a criminal history.
28The arresting officer could ask Mr. Samuels his name and date of birth as long as he was not detained. If Mr. Samuels was detained, arbitrarily or otherwise, the officer could not ask for his name and identification if his purpose in asking was to run him through the PQT system and determine his criminal history. This follows from the decision in Harris at para. 40.
29When there is a roadside stop of a vehicle for Highway Traffic Act purposes the passengers in the car may be incidentally detained but their detention is not necessarily arbitrary or unlawful: see R. v. Harris (2007), 2007 ONCA 574, 87 O.R. (3d) 214 at para. 19 and 45-49. Whether their detention is arbitrary or unlawful will depend upon the circumstances including whether the Highway Traffic Act investigation is still ongoing: see R. v. Mhlongo (2017), 2017 ONCA 562, 355 C.C.C. (3d) 1 at paras 26 to 45. I do not understand either Harris or Mhlongo to say that every time a car is stopped for a Highway Traffic Act investigation, that the passengers in the vehicle are always incidentally detained. It will depend upon the facts.
30The Crown in this case says that Mr. Samuels was not initially detained when the vehicle was stopped and that he could have just walked away as the driver had done by walking into the Motel 6 reception. In my view, it is not likely that the driver would knowingly just walk away from a police traffic stop. Generally speaking, a driver is always detained when his or her vehicle is stopped by police. In my view, the driver must have walked into the motel before the traffic stop or before he was aware of it so that fact is of little assistance in determining whether Mr. Samuels was detained. While it is possible that a passenger may not be detained when a vehicle is stopped for Highway Traffic Act purposes, in each of Harris, supra, Mhlongo, supra, Cartwright, supra and Pinto, supra, the passenger was found to be detained when the car was stopped for Highway Traffic Act purposes.
31On my view of the matter, Mr. Samuels was arbitrarily detained from no later than the time the arresting officer asked him for his name and date of birth which I have concluded he did. For reasons I will explain below, I reach the conclusion that he was detained following the principles laid down in Grant, supra and considering Harris, supra, Mhlongo, supra, Cartwright, supra and Pinto, supra. The detention was arbitrary because any bona fide Highway Traffic Act investigation of the driver was deferred when the arresting officer chose to focus first on Mr. Samuels. I understand that the driver did come out of the Motel 6 at some point and that the arresting officer started to search in the PQT system both the name of the driver and the name given by Mr. Samuels. It might be said that the Highway Traffic Act investigation had resumed or been re-activated at that point. This might be true vis a vis the driver but the improper investigation of Mr. Samuels had already started by that point in time. That investigation did not become legitimized simply because the Highway Traffic Act investigation of the driver may have resumed.
32The Supreme Court in Grant said that in assessing whether a person is detained the Court must consider, among other things, the circumstances giving rise to the encounter as they would be perceived by the individual; the nature of the police conduct; and the particulars or circumstances of the individual where relevant including their age, physical stature, minority status and level of sophistication.
33In many cases simply asking a person for a name and date of birth will not give rise to a detention but all of the circumstances in this case must be examined. In this case, the officer had initiated a traffic stop on the vehicle. As I have said, any bona fide Highway Traffic Act investigation had been deferred when he chose to deal first with Mr. Samuels. The officer had brought his police cruiser beside the BMW in which Mr. Samuels was a passenger. The arresting officer focused immediately and directly on Mr. Samuels when he asked him for his name and date of birth. Why was the officer asking in this case for Mr. Samuels name and date of birth? The answer is that Mr. Samuels was outside the Motel 6 which the arresting officer knew was associated with crime. That is why the arresting officer wanted to know his name and date of birth so that he could run this information through the PQT system and figure out his criminal history, if any. To be clear, the fact that the officer wanted to know who this person was outside the Motel 6 in and of itself does not mean he was detained. The court must also examine the particulars of the parties involved and how they acted vis-à-vis one another.
34Both Mr. Samuels and the officer conducted themselves at the time as if Mr. Samuels was detained. Mr. Samuels was a young 21 year old black man dealing with a uniformed police officer who had parked his fully marked cruiser close to the BMW in which Mr. Samuels was sitting and then focused his direct attention on Mr. Samuels. Mr. Samuels asked him permission to use the bathroom and the arresting officer “allowed” him to do so according to his notes. This suggests that they both thought he was detained. I note as well that this was not a brief delay of Mr. Samuels. The traffic stop was initiated at 8:52 PM and Mr. Samuels was not arrested until 9:02 PM. Further and importantly, the moment Mr. Samuels sought to leave by getting in the white Mercedes, the arresting officer pulled out his firearm and arrested him at gunpoint. When one looks at all of the circumstances, it seems clear to me that Mr. Samuels was not free to go and was arbitrarily detained by no later than when the officer asked him for his name and date of birth which was likely at around 8:53 PM.
The Arrest at Gunpoint
35The arresting officer could only arrest Mr. Samuels if he had reasonable and probable grounds to do so. Alternatively, he could place him under investigative detention if he had reasonable grounds to suspect in all of the circumstances that the individual was connected to a particular crime and that such detention was necessary: see R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at para. 45.
36In my view, when the arresting officer arrested Mr. Samuels at 9:02 PM he had no reasonable and probable grounds to do so nor did he have a proper basis to place him under investigative detention. The officer testified that he thought he had a proper basis to arrest him because the officer said he believed Mr. Samuels had provided a false name. He based that belief on: Mr. Samuels’ actions of advising that he needed to use the bathroom and then hopping in another vehicle (which the officer assumed had been called for by someone); and the officer said he also thought that he had the result of the PQT search which showed there was no driver’s licence associated with the false name given. It is my view that the reasons given by the arresting officer as his grounds for believing that Mr. Samuels had committed the offence of obstruction of the police officer don’t amount to reasonable and probable grounds or even reasonable grounds to suspect that a crime has been committed. The arresting officer had nothing in his notes indicating he had the result of the PQT search when he did the arrest and he was not “100% sure” he had the result. Even if he did, the fact that there was no driver’s licence associated with the name given and the fact that Mr. Samuels clearly wanted nothing to do with the police did not amount to reasonable and probable grounds to arrest Mr. Samuels for obstruction or even to detain him for investigative purposes on the basis of reasonable grounds to suspect that the individual was connected to a particular crime. I say this based on a consideration of all of the circumstances. I note as well that the arresting officer’s own testimony supports my view that the arresting officer did not have reasonable and probable grounds to arrest for the obstruct charge nor did he have a basis to place him under investigative detention. Even though the officer testified that he that he had proper grounds to arrest Mr. Samuels for the obstruct charge he also said as follows:
(i) that when he placed Mr. Samuels under arrest by pointing his gun at him he did so based on “a sense and a hunch” that something was “not quite right” (emphasis added).
(ii) that when he stopped the Mercedes and had the keys thrown out of the window that “I didn’t know at that point what I was dealing with or why the individual had lied to me about going to the bathroom and then fled into a waiting car” (emphasis added).
(iii) He also said that when he stopped the Mercedes he was “unsure about what I was dealing with at this point” (emphasis added).
(iv) He said that when Mr. Samuels got into the Mercedes he knew that there is “something not quite right” but that “at that point, I wouldn’t it known what it was. I had no information on the male himself” (emphasis added)
(v) Mr. Samuels was arrested and handcuffed at 9:02 PM ostensible for the obstruct charge. However, the arresting officer said that “at 2109 [9:09 PM]… Now I’m able to understand exactly what I’m dealing with” (emphasis added).
37The arresting officer said he arrested Mr. Samuels at 9:02 PM and told him that he was under arrest for obstruction of a police officer but based on my consideration of the evidence including the points outlined above I believe the officer is mistaken. The arresting officer did arrest Mr. Samuels at 9:02 PM by pointing his firearm at him and having him handcuffed but, in my view, he did not tell Mr. Samuels what he had arrested him for at that point because the officer did not know yet. The excepts from the evidence of the arresting officer support this conclusion as does the evidence of the assisting officer who said that he remembered the arresting officer saying that Mr. Samuels was under arrest but he did not remember for what. As mentioned, it was at 9:09 PM that the officer said “now I’m able to understand exactly what I’m dealing with, who I am dealing with, and how to proceed”. The fact that he did not give rights to counsel until 9:12 PM also supports my conclusion that the arresting officer did not know what he had detained him for at 9:02 PM.
Summary on this Issue
38Let me summarize that in my view Mr. Samuels was arbitrarily detained from no later than the time he was asked for his name and date of birth. This would have been at approximately 8:53 PM. For the reasons outlined above, he was not free to leave at that time. Further, it is my view that the detention was arbitrary as the arresting officer chose to defer any bona fide Highway Traffic Act investigation and chose instead to detain and question Mr. Samuels for the purpose of trying to figure out his criminal history. Further, even if I am wrong in this conclusion, Mr. Samuels was arbitrarily detained at 9:02 PM when he was arrested at gunpoint without charge and handcuffed. There were no reasonable and probable grounds to arrest him for obstruction of a police officer at that time or to place him under investigative detention.
Issue 2 – Were Mr. Samuel’s section 8 rights violated?
39In my view, it is clear that Mr. Samuel’s section 8 Charter rights were violated when he was detained at the outset and asked for his name and identification. The Crown argues that there can be no section 8 violation as there could be no reasonable expectation of privacy in a false name and date of birth.
40In my view, the law is clear that when a person is in police detention a request for identification for the purposes of a general criminal investigation will be a violation of section 8 of the Charter: see R. v. Mhlongo, supra at para 51. In cases such as this one, police can’t question detained persons who have not been provided and afforded rights to counsel. The fact that a person provides a false name in response to improper questioning may be considered in the section 24(2) analysis.
41If I am wrong and the initial questioning of Mr. Samuels did not amount to a section 8 violation, the questioning that occurred after he was arrested at gunpoint and before he was provided rights to counsel was another s. 8 violation as was the physical search of him. It was during this time this time that he provided his real name which led to all three charges he now faces. This information of his true name apparently came in response to questioning from the arresting officer. This was a further s. 8 violation in my view.
Issue 3 – Was there a violation of Mr. Samuels section 10(a) and 10(b) rights?
42In my view, in all of the circumstances, Mr. Samuels was detained for criminal investigatory purposes once the officer initiated a traffic “stop” and approached Mr. Samuels to get his name and date of birth. I understand that section 10(b) rights are suspended during a bona fide Highway Traffic Act stop: see Harris, supra at para 48. However, if this case started out as a bona fide Highway Traffic Act stop any legitimate related investigation that might have been done was deferred when the arresting officer decided to focus his attention on Mr. Samuels. The driver could be the one and only object of any Highway Traffic Act investigation. I understand that the driver did come out of the motel and that the arresting officer began to search both names (the driver and the name given by Mr. Samuels). The Highway Traffic Act investigation, if there was a bona fide one, might be said to be reactivated at that point. In my view, the improper questioning of a detained Mr. Samuels had already started and was on a separate path from any Highway Traffic Act investigation there might have been at any time. I consider that this makes the detention arbitrary from the outset of the investigation of Mr. Samuels.
43It is somewhat unclear exactly what time the arresting officer spoke to Mr. Samuels but it would be at approximately 8:53 PM shortly after the officer said he initiated the stop at 8:52 PM. He was under arrest and handcuffed at 9:02 PM and advised of the charges at 9:09 PM and rights to counsel at 9:12 PM. Accordingly, there was approximately a 19 minute delay in giving him his rights to counsel and caution including a 10 minute delay in providing them after Mr. Samuels was arrested at gunpoint and handcuffed. There was also a delay in conveying to him why he was under arrest at 9:02 PM. As I’ve explained above, the reason for this delay was because in my view the arresting officer did not yet know why he was arresting him. He arrested him on a hunch and then figured it out later as to what he would charge him with. Subsequently (by 9:09 PM), after Mr. Samuels provided his real name, the arresting officer determined that Mr. Samuels was on two recognizances and was apparently not complying with them. This was when the arresting officer figured out what the charges would be.
Issue 4 – If there were any Charter breaches, should any evidence be excluded pursuant to section 24(2) of the Charter?
44For the reasons outlined above I have determined that there was a breach of Mr. Samuel’s rights under sections 8, 9, 10 (a) and 10(b) of the Charter.
45The defence seeks to exclude all answers provided by Mr. Samuels in response to questioning from police. In effect, the defence seeks to exclude the false name and date of birth initially provided and the correct name later provided and the related evidence which established that Mr. Samuels was on two recognizances. The question of whether evidence should be excluded under section 24(2) of the Charter requires a consideration of the analytical framework laid down by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The test is well known and involves a consideration of three factors: (i) the seriousness of the Charter infringing conduct; (ii) the impact of the breach on the Charter protected rights of Mr. Samuels; and (iii) society’s interest in adjudication on the merits. The Court must balance an assessment of each one of these factors in order to determine whether, considering all the circumstances, the admission of the evidence would bring the administration of justice into disrepute.
(i) The Seriousness of the Charter Infringing State Conduct
46Concerning the seriousness of the Charter infringing state conduct, the question is whether the admission of the evidence would bring the administration of justice into disrepute by suggesting that the courts will condone breaches of the Charter and the need for the courts to dissociate themselves from unlawful conduct. This factor involves an examination of the conduct of the police. The more severe or deliberate the state or police conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from the conduct so as to preserve public confidence in the rule of law: R. v. Orlandis-Habsburgo, 2017 ONCA 649 at para. 130.
47In the case at bar, I am prepared to accept that part of the reason for the stop included a bona fide Highway Traffic Act stop at the outset. However, the arresting officer knew or should have known that he was not permitted to engage in the questioning of the passenger Mr. Samuels when he was detained. Having said that, I recognize that such questioning was only improper because I have concluded Mr. Samuels was detained at that point and the question of when a person is detained can be a complex legal question.
48Further, even if everything that happened up until Mr. Samuels was arrested at gunpoint was in compliance with the Charter (and I do not believe it was), Officer Samuels had no reasonable and probable grounds to arrest Mr. Samuels when he did at 9:02 PM. As I have already reviewed in the facts above, the most he had was “hunch” that Mr. Samuels had committed a crime. As concerns the section 10(b) violation there was a delay of approximately 19 minutes in advising Mr. Samuels of his right to counsel (8:53 PM to 9:12 PM). Even once the arresting officer had Mr. Samuels under arrest and handcuffed it took him another 10 minutes to advise him of rights to counsel and caution and before that was provided, Mr. Samuels gave over his true name. I am not satisfied that there was any reasonable basis for any of the delays in providing rights to counsel to Mr. Samuels. The arrest without reasonable and probable grounds and the questioning prior to rights to counsel was a clear s. 8 and 10(b) violation. I note that in Mhlongo at para 49 and 66, a delay of just over 30 minutes in advising the detained person of the right to counsel was said by the Court of Appeal to be “prolonged”.
49Similarly, Mr. Samuels was detained at about 8:53 PM but not advised of the reason for his detention, on my determination of the facts, until 9:09 PM, contrary to s. 10(a) of the Charter.
50I understand that the arresting officer had some good intentions in the sense that he was trying to root out crime at the Motel 6. Having said that, he went about it the wrong way and violated the Charter rights of Mr. Samuels. He did not act in good faith in my view. I do understand and appreciate that the question of precisely when a person is detained unlawfully and therefore required to receive rights to counsel can be a complicated one. Having said that, the arresting officer should have known that he had Mr. Samuels under detention and that he had no right to be questioning him for criminal investigation purposes. Finally, even when Mr. Samuels was handcuffed and searched, there was a 10 minute delay in providing rights to counsel and caution and it was during that delay that Mr. Samuels gave over his real name.
51The result of the foregoing was multiple Charter breaches namely violations of section 8, 9 and 10(a) and (b) of the Charter which taken together were serious.
(ii) The Impact of the Breach on the Charter Protected Interests of the Accused
52In my view, there was a significant impact on Mr. Samuel’s Charter rights. First, he was subjected to an arbitrary detention contrary to section 9 when he was detained for questioning at the outset even though there was no basis to detain him. As I’ve said, while his initial detention may have been incidental to Highway Traffic Act stop, the reason for his continued detention and questioning was because he was at the Motel 6 and the arresting officer knew the Motel 6 was associated with crime and unsavoury behaviour.
53Second, he was subjected to a section 8 unreasonable search and seizure when he was questioned by the arresting officer so that the arresting officer could figure out who he was “dealing with” including whether he had a criminal record. I understand and appreciate that there would be only a limited privacy interest that Mr. Samuels would have in a false name and false date of birth which he gave to the officer but nevertheless he never should have been subject to this improper questioning which led him to provide the false name and date of birth. He was subject to further section 8 violations when he was handcuffed and physically searched and thereafter asked further questions.
54Third, the entire interaction essentially ended with Mr. Samuels being arrested at gunpoint and then handcuffed and physically searched and questioned before he received rights to counsel. While there is no evidence as to the impact that these events had on him, one can reasonably infer that being arrested at gunpoint and then handcuffed and searched would be a stressful event.
55What started with an improper detention and search of Mr. Samuels ultimately led police to obtain the information that Mr. Samuels was on recognizances and that he was apparently not complying with them. Police could have obtained that information simply by going to his place of residence and this makes the breach less serious in my view. However, the practical reality is that police were not going to figure out that Mr. Samuels was apparently in breach of recognizance but for the section 8, 9 and 10(b) violations.
56For the foregoing reasons I consider that the impact of the multiple breaches of Mr. Samuel’s Charter protected rights was significant
(iii) Society’s Interest in Adjudication on the Merits
57Under this heading, the Court considers whether the truth seeking function of the Court process would be better served by admission of the evidence or by its exclusion. The reliability of the evidence and the importance of it to the Crown’s case are to be considered. The defence wishes to exclude the fruits of the investigation including the false name and the fact that Mr. Samuels was on two recognizances. This is reliable evidence and is critical to the Crown’s case. Overall, this issue clearly favours inclusion of the evidence.
(iv) Balancing
58I consider that the first two Grant factors point strongly towards exclusion of the evidence. As Justice Doherty for the Court of Appeal stated in R. v. McGuffie, 2016 ONCA 365, [2016] O.J. 2504 at para. 63, “[i]f the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility”. Even if the impact on Mr. Samuel’s Charter protected rights is viewed as less serious because of the nature of the information obtained (a false name and information about his recognizances which was available to the police on the police database), it is my view that the long-term interests of the justice system will be best protected by the exclusion of the evidence.
59Accordingly, the false name and date of birth and the fact that Mr. Samuels was on a recognizance or recognizances will be excluded from the evidence pursuant to section 24 (2) is of the Charter.
Issue 5 – Has the Crown proved the charges of obstruct and breaches of recognizance beyond a reasonable doubt?
60I have excluded the false name and date of birth which prevents the Crown from proving the obstruct charge beyond a reasonable doubt. However, even if it were not to be excluded, in order to establish the obstruct charge, the Crown would have to establish that the arresting officer was engaged “in the execution of his duty”. In my view, when the arresting officer was questioning Mr. Samuels he was not in the proper “execution of his duty”. Rather, he was violating the Charter rights of Mr. Samuels as Mr. Samuels was detained at this time (see R. v. Guenette (1999), 1999 CanLII 13722 (QC CA), 136 C.C.C. (3d) 311 (Que. C.A.). Accordingly, the obstruct charge fails for two reasons. The false name and date of birth are excluded under the Charter but even if they were not, the obstruct charge would fail in any event. There will be an acquittal on this charge.
61Similarly, because the fact that Mr. Samuels was on two recognizances has been excluded pursuant to the Charter, the breach of recognizance charges also fail and there will be an acquittal on those charges as well.
Released: April 2, 2019
Signed: Justice Paul F. Monahan