Ontario Court of Justice
Date: 2021 12 10 Toronto
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
FAYSAL ADOW
Before: Justice Newton-Smith
Heard on: November 1 and 2, 2021 Reasons for Judgment released on: December 10, 2021
Counsel: J. Lynch and E. Mastrorillo.............................................................. counsel for the Crown C. Nishio.................................................................. counsel for the accused Faysal Adow
Reasons for Judgment – Charter Application
1On May 10, 2020 shortly after 10 am PC Gill was dispatched to respond to a call from a concerned citizen. The caller had reported that a vehicle had been parked since 6:20 am with the engine running. A black male was in the driver’s seat and the caller was concerned that he might be intoxicated. The caller did not say why. He gave the location, make and licence plate of the vehicle. PC Gill arrived on scene to find Mr. Adow sleeping in the driver’s seat. He detained and questioned Mr. Adow. A few minutes later Mr. Adow was handcuffed and arrested for impaired care and control, following which PC Gill searched the car and found drugs. Mr. Adow was then arrested for possession for the purpose of trafficking.
2Mr. Adow was never charged with impaired care and control. He appeared before me for trial charged with one count of possession for the purpose of trafficking in fentanyl and one count of possession for the purpose of trafficking in cocaine. An Application was brought to have the drugs seized excluded alleging violations of Mr. Adow’s rights under sections 7, 8, 9, 10(a) and (b) and 12 of the Charter.
I. The Evidence
3The entirety of the incident in the parking lot was captured on PC Gill’s in car camera [ICC]. Part way through PC Walters arrived on scene to assist. The Crown called PC Gill. The defence called PC Walters.
(i) The ICC
4At 10:05 am PC Gill’s car arrives on scene. Mr. Adow’s car is parked in a parking spot in the apartment building parking lot with its engine running [1]. PC Gill positions his scout car behind Mr. Adow’s car so as to block it in.
5At 10:06 am PC Gill knocks on the driver’s window a couple of times and then after waiting a few seconds opens the door. As he opens the door PC Gill says, “hey what are you doing man, what are you doing?”. Mr. Adow responds “Huh” and begins to get out of the car. PC Gill tells him to “stay there”. As Mr. Adow sits back down PC Gill again asks him what he’s doing. Mr. Adow says “huh” again and PC Gill repeats, “what are you doing?”. Mr. Adow responds saying, “I was just sleeping, I was tired”. PC Gill then asks Mr. Adow if it’s his car. Mr. Adow says “huh” and PC Gill repeats the question. Mr. Adow responds, “it’s my mom’s car”. PC Gill says, “it’s your mom’s car?” and Mr. Adow says, “yeah”. PC Gill asks Mr. Adow for his mother’s name which Mr. Adow gives him, and then asks Mr. Adow if she knows that he has the car. Mr. Adow responds “Huh”. When PC Gill asks again Mr. Adow says “yeah”.
6During this encounter PC Gill is masked and standing upright holding the driver’s door open. Mr. Adow is seated inside the car. On several occasions Mr. Adow either doesn’t hear the question when PC Gill asks it the first time, responding “huh” or is confused by what he’s being asked. He appears tired and somewhat confused by the officer’s presence and demands but is coherent and responsive.
7At 10:07 am PC Gill asks Mr. Adow where his licence is. Mr. Adow makes a sound as if he has forgotten something and starts to get out of the car. PC Gill does not tell him to stay in the car but rather stands back as Mr. Adow gets out. Mr. Adow reaches into his jeans pocket as he stands. It appears as though he is looking for his licence. PC Gill does not stop him or tell him to take his hands out of his pockets. Mr. Adow then starts to reach back into the car at which point PC Gill pulls him back from the car and says, “what are you going in there for, tell me where it is and that’s it, is it in there?”. Mr. Adow responds by checking his jacket pocket. PC Gill doesn’t tell him to take his hands out of his pockets but rather asks, “is it in there?”. When Mr. Adow says no, PC Gill says, “so then why are you going in there for”. Mr. Adow responds saying, “no, no it’s not I don’t have it on me” as he searches his other jacket pocket.
8Mr. Adow tells PC Gill that he thinks he left his licence at home. PC Gill asks him, “why if you’re driving a car, if you have care and control of a car, why don’t you have a licence on you?”. Mr. Adow explains, “no this is this is just here from yesterday”. PC Gill asks, “so you just came here to sleep in it?” and Mr. Adow responds “yeah”.
9PC Gill asks Mr. Adow, “ why didn’t you sleep at your mom’s house?”. Mr. Adow says, “huh?” and PC Gill responds, “your mom’s house is close by isn’t it?”. Mr. Adow explains, “I know but like because like she goes to sleep early morning”. PC Gill then asks him, “don’t you have a house key?”. Mr. Adow responds, “My house key?” and starts searching in his pockets. PC Gill physically stops Mr. Adow from putting his hands in his pockets and says, “don’t you have a house key, do you have a house key?” Mr. Adow responds, “no”.
10At this point PC Gill says to Mr. Adow, “you drunk?”. Mr. Adow puts his hand in his pockets and says “no”. PC Gill says, “keep your hand out of your pockets” twice in a forceful tone and Mr. Adow says “ok”. This is the first time during the encounter that PC Gill tells Mr. Adow to keep his hands out of his pockets.
11PC Gill then says again to Mr. Adow, “you drunk?”. Mr. Adow says, “No, I’m not drunk”. PC Gill asks him, “so if a do a roadside on you, you will blow zero?” and Mr. Adow says, “Yeah”.
12Mr. Adow is wearing a small cross body satchel. At this point PC Gill asks Mr. Adow, “ok, is there anything in your, anything in your bag here?” and points at Mr. Adow’s satchel. Mr. Adow reaches to take off his bag. As he does so Mr. Adow asks, “what happened, what did I do wrong?”. PC Gill responds, “well you were in care and control of a car that you were sleeping in that’s been running since 4 o’clock right” to which Mr. Adow responds by turning and reaching into the car to try to turn it off.
13PC Gill grabs at Mr. Adow to stop him from going into the car saying, “no, no”. Mr. Adow explains, “I just want to turn it off” and PC Gill says, “no, no, leave it, leave it Faysal, I said leave it”. Mr. Adow responds, “ok, ok, alright alright, you know me sir”. PC Gill says, “yeah I do know you”.
14After PC Gill pulls Mr. Adow back from the car, he takes his satchel from him and begins searching it. He places the satchel on the hood of the car and goes through the contents while Mr. Adow stands by. As this is happening PC Walters arrives on scene.
15As PC Gill is searching his bag Mr. Adow again says, “you know me”. PC Gill says, “yeah I do know you, yeah, does your mom know you have the car?”. PC Gill then starts to do a pat down search of Mr. Adow as PC Walters stands by.
16PC Gill touches Mr. Adow’s jean pocket and says, “what’s this?”. Mr. Adow tries to put his hand in his pocket and PC Gill says, “No, I said what is it, I didn’t say go in your pockets” to which Mr. Adow responds, “I’m not sure, it’s my…” Before he can finish PC Gill again demands, “what is it?”. Mr. Adow says, “it’s my lip gloss”. To which PC Gill responds, “okay so how hard is that to answer it’s not very hard right”.
17As PC Gill is patting down Mr. Adow, Mr. Adow moves his arm and PC Gill says “ok, dude listen, I said don’t go in your pockets”. Mr. Adow begins to respond, “Ok, sir, I’m not…” but PC Gill cuts him off saying, “so why are you going in your pockets then”.
18PC Gill continues to search through Mr. Adow’s pockets. He asks Mr. Adow, “it’s money?” and Mr. Adow responds, “yeah”. As the search continues Mr. Adow attempts to say, “I was trying to show you…to show my [indecipherable] for you”. PC Gill repeats, “I said don’t go in your pockets”. PC Walters then speaks for the first time saying, “why are you not understanding?” Mr. Adow responds, “I am going to take whatever you want out of my pockets”.
19It is at this point that PC Gill handcuffs Mr. Adow, saying, “no no no, I take, I take whatever out of your pockets. Okay put your hands behind your back”. Mr. Adow says, “Oh my god, you’re cuffing me now?” and PC Gills responds, “yeah, I am cuffing you. Because having care and control of a vehicle and sleeping is still called care and control, right?”. Mr. Adow says, “yeah” and PC Gill says, “so until I determine that you are not intoxicated you are going to be under arrest”. This occurs at 10:10 am.
20Mr. Adow exclaims, “Officer are you serious, you don’t have to do this to me man. Sir you don’t have to do this.” PC Gill responds, “yeah well you don’t listen man, right”.
21PC Gill then searches Mr. Adow’s pockets and hood. After which he moves on to searching the vehicle and finds a bag of what appears to be fentanyl. At 10:12 am PC Gill arrests Mr. Adow for possession for the purpose of trafficking.
22While PC Gill continues his search of the car PC Walters stands beside Mr. Adow holding his arm. Mr. Adow is cuffed to the rear. As he is standing there Mr. Adow moves his hand and it slips out of the cuffs. He remains standing beside PC Walters who looks over and sees that Mr. Adow’s hand is free. PC Walters slams Mr. Adow against the car and re-cuffs him. At 10:14 am Mr. Adow is escorted to PC Gill’s scout car and placed in the rear where PC Gill reads him his rights to counsel at 10:15 am.
(ii) PC Gill’s Evidence
23At the time of the incident PC Gill had been a police officer for less than 3 years.
24He testified that prior to arriving on scene he had received the following information from the dispatcher: a caller had reported seeing a vehicle in the parking lot of 295 Shuter Street that had been parked with the engine running since 6:20am, there was a black male in the driver’s seat, in his mid twenties wearing a hoodie and the caller was concerned that the male was intoxicated.
25When he arrived on scene PC Gill ran the licence plate and learned that the registered owner was Dega Omar of 70 Richmond Street East.
26PC Gill testified that he moved his scout car to box in Mr. Adow’s car for “officer safety and to prevent escape” and then approached the car on foot. When he approached the car and looked in the driver’s window he saw Mr. Adow who appeared to be either asleep or unconscious. The driver’s seat was reclined. PC Gill testified that after he knocked on the window and gestured with his finger for Mr. Adow to roll the window down, Mr. Adow began shuffling in his pockets and the centre console.
27PC Gill testified that he was concerned that Mr. Adow was either reaching for weapons or to put the car into reverse. He testified that he became “increasingly concerned that the male was intoxicated” and opened the door.
28When he opened the door, PC Gill testified that Mr. Adow appeared to be disoriented or confused and was “not very present in the moment”. He asked Mr. Adow to step out of the car so that he could, “further assess his sobriety”. According to PC Gill, after the male stepped out of the car he was, ”still not very present in the investigation and kept reaching into the car”.
29PC Gill testified that he was “eliciting conversation” in order to investigate the offence of “care and control while intoxicated”. It was PC Gill’s evidence that Mr. Adow was not free to leave during this course of this investigation.
30When asked if he had made Mr. Adow aware of what he was investigating, PC Gill responded, “yes, one of the first questions I asked him is if he was drunk”.
31It was PC Gill’s evidence that Mr. Adow was not very responsive and was continually reaching into his pockets and the car. PC Gill testified that he tried to regain Mr. Adow’s focus and asked him to stop reaching into the car and his pockets. He testified that he asked him approximately 2-4 times to stop and then placed him under arrest and into handcuffs at 10:10 am.
32PC Gill testified that prior to placing him under arrest, he “checked” Mr. Adow’s satchel and his pockets for “officer safety” but did not find anything of “evidentiary value”. PC Gill described Mr. Adow as “very anxious almost, still not very present, not very cooperative”.
33When asked what he had placed Mr. Adow under arrest for at this time, PC Gill answered, “care and control while intoxicated”. He stated that his grounds for the arrest were that Mr. Adow was, “not very present, very disoriented, not very cooperative, not very able to understand requests, seemed drousy and speech slurred”. In cross-examination PC Gill corrected himself and agreed that Mr. Adow’s speech was “slow” and not “slurred”.
34PC Gill testified that after he arrested Mr. Gill for impaired care and control he searched the hood of his jacket. When asked what he was searching Mr. Adow’s hood for PC Gill said “weapons or evidence” and explained “you can hide a lot of things in a hood like a weapon or a mickey”. He then searched the car for evidence of impairment, or what PC Gill termed, “supportive evidence”.
35PC Gill testified that while he was searching the car he heard a commotion and looked over to see PC Walters holding Mr. Adow against the car. PC Gill testified that he did not see Mr. Adow slip out of the cuffs, but that when they re-cuffed him Mr. Adow was, “still trying to pull away from us even though we were holding on to him”. In his evidence PC Gill described what was happening at this point as Mr. Adow attempting to flee.
36PC Gill testified that when he read Mr. Adow his rights to counsel in the back of the cruiser at 10:15 am Mr. Adow indicated that he understood and said that he would like to speak a lawyer. He gave PC Gill the name of his lawyer.
37In cross-examination PC Gill agreed that he was not concerned the first time that Mr. Adow put his hands in his pockets and did not tell him to stop. PC Gill testified that he was “ok with it” the first time but not other times. He also agreed that when he asked Mr. Adow to take his hands out of his pockets he did, although testified that it took “some extra requests”.
38PC Gill agreed that the content of Mr. Adow’s speech made sense, but testified that it was “not very clear or very oriented…just kind of mumbling”.
39PC Gill did not observe any other signs of intoxication such as dilated pupils, an odour of alcohol or marijuana or other signs of drug or alcohol use. Other than asking Mr. Adow if he was “drunk” PC Gill did not ask Mr. Adow any other questions about intoxication or impairment. When asked why, PC Gill testified that the primary focus of his investigation was alcohol. PC Gill testified that he had dealt with Mr. Adow previously and did not know him to be a user of hard drugs, which was why he did not have a concern that Mr. Adow was impaired by drug.
40When asked why he did not make a request to have any roadside screening equipment brought from the station, a 2 minute drive away, PC Gill responded, “my plan was to continue assessing his body language and his ability to interact with me prior to asking for a roadside”. Similarly, he did not conduct any standard field sobriety tests.
41When asked at what point he felt that he had reasonable suspicion that Mr. Adow was impaired by drug or alcohol, PC Gill testified that when he “approached the vehicle, observed him laying back, his lack of response following my approach to the vehicle gave me the suspicion, his lack of response followed by his response to my arrival gave me the suspicion”. PC Gill testified that he had this suspicion, “in his mind prior to arriving”.
42When asked why, if he had safety concerns, he did not conduct a pat down search of Mr. Adow when Mr. Adow first got out of the car, PC Gill testified that he was “more concerned” with the information that Mr. Adow was giving him and providing Mr. Adow with the opportunity to explain what he was doing.
43PC Gill agreed that Mr. Adow’s drowsiness and disorientation could be equally consistent with someone having just been woken up, as Mr. Adow had been.
44It was PC Gill’s evidence that Mr. Adow was detained time when he opened the driver’s door. When asked why he didn’t give Mr. Adow his rights to counsel when he first detained him, PC Gill testified that he, “did not feel it was quite safe at that time”. PC Gill agreed that the purpose of his first question to Mr. Adow, “Faisal what are you doing here?”, was not to address any safety concern.
45PC Gill also agreed that he did not tell Mr. Adow the reason for his detention until Mr. Adow specifically asked, “what did I do wrong?”. His explanation was that he had begun his investigation by asking Mr. Adow questions about impairment which ought to have “alluded” to Mr. Adow the reason he was being detained and investigated.
46It was not until he was placed in the back of the scout car that Mr. Adow was read his rights to counsel. PC Gill explained that he wanted to wait until it was safe, he could read the right to counsel and caution correctly to Mr. Adow from his memo book while the interaction was being recorded.
47PC Gill testified that when he was searching the vehicle he was “looking for evidence of impairment”. When asked what he would have done had he not found drugs in the vehicle, PC Gill responded, “I would have had to release him without any charges”. At this point in the cross-examination PC Gill explained that he had decided that Mr. Adow was not impaired when he “transitioned from an arrest for care and control to an arrest for possession for the purpose”. When asked to explain, PC Gill testified that when he searched the vehicle he didn’t find anything to “support that he had been using alcohol or drugs”.
48PC Gill agreed that in his notes for the first time that he arrested Mr. Adow he did not write the reason, whereas the second time when he was arrested for possession for the purpose of trafficking he did record the reason in his notes.
(iii) PC Walters’ Evidence
49PC Walters testified that prior to being arrested for possession for the purpose of trafficking Mr. Adow was not under arrest. According to PC Walters’ evidence, prior to the drug arrest Mr. Adow had been handcuffed to the rear “due to being uncooperative with us”. He testified that the purpose of handcuffing Mr. Adow at that point was “for control during the investigation”. It was PC Walters’ evidence that Mr. Adow had been told “numerous times” to take his hands out of his pockets and “lack of compliance led us to cuff him to the rear”.
50When asked if there was any evidence to suggest that Mr. Adow was intoxicated when he was placed in handcuffs, PC Walters responded, “other than his incoherence, slow speech, sleepiness and drowsiness” there was no other indication of intoxication. PC Walters agreed that the only thing that he had recorded in his notes was that Mr. Adow appeared to be drowsy.
51PC Walters testified that prior to being placed in cuffs Mr. Adow was “in their custody and detained”. When asked if Mr. Adow had been provided with his rights to counsel upon detention, PC Walters testified, “no, not prior to being cuffed, it was something that we missed because we were into doing our investigation so we missed doing his rights to counsel at the time”.
52PC Walters testified that when he saw that Mr. Adow’s hand had come out of the handcuff he “quickly took action to re-cuff him”. According to PC Walters, Mr. Adow did not try to pull away or move his feet. PC Walters testified that when he watched the ICC his actions in re-cuffing Mr. Adow looked “a lot worse than I thought it was”. PC Walters testified that he just wanted to get Mr. Adow re-cuffed. Mr. Adow made no complaint of injury and was not in any way injured.
II. Law and Analysis
(i) The Position of the Parties
53It is agreed that from the beginning of the interaction with PC Gill Mr. Adow was detained. PC Gill had boxed his car in. Both officers testified that they considered Mr. Adow to be detained from the outset.
54The defence has conceded that grounds existed for an investigative detention.
55It is the position of the defence that grounds did not exist for the first arrest for impaired care and control. The search of the Mr. Adow’s car was unreasonable and violated his section 8 rights. The earlier searches of his satchel and his person were also unreasonable and violated his section 8 rights.
56It is the position of the Crown that PC Gill did have grounds for the arrest for impaired care and control and that the search of the vehicle was a permissible search incident to arrest. The Crown concedes that if the arrest was unreasonable so was the search of the vehicle.
57It is further the position of the defence that Mr. Adow’s section 10 (a) and (b) rights were triggered upon the investigative detention and that he ought to have been advised of his rights from the outset.
58Lastly, the defence submits that PC Walters’ actions in shoving Mr. Adow into the car to re-cuff him amounted to excessive force and violated his section 12 rights. It is the position of the defence that this is not the most egregious violation leading to a s.24(1) remedy, but rather that it ought to be considered under s.24(2) as part of a pattern of Charter infringing conduct.
(ii) The Impaired Care and Control Arrest
59Section 495 of the Criminal Code empowers police to arrest an individual without a warrant where the officer has reasonable and probable grounds to believe that an offence has been committed. The standard of reasonable grounds is one of reasonable probability. In coming to his or her subjective belief, the officer must take into account all of the available information and consider the totality of the circumstances. The officer must have a subjective belief that grounds exist, but that belief must also be objectively reasonable: R. v. Storrey, [1990] 1 SCR 241 at para 17, R. v. Anang, 2016 ONCA 825 at para 14.
60PC Gill testified that his grounds for believing that Mr. Adow was in care and control of a motor vehicle while intoxicated were that he, “wasn’t very present in the investigation” and that he kept reaching into his pockets and the car. PC Gill also testified that Mr. Adow was “very disoriented, not very cooperative, not very able to understand requests, seemed drousy and speech slurred”.
61In cross-examination PC Gill corrected himself and said that Mr. Adow’s speech was “slow” not slurred. From what can be heard of Mr. Adow on the ICC his speech is neither slurred nor incoherent.
62The manner in which PC Gill characterised Mr. Adow’s behaviour is not born out by the ICC, and is inconsistent with aspects of his evidence, and that of PC Walters.
63While Mr. Adow may have appeared to be somewhat slow to respond and confused by the officers presence and demands, I do not find this to be at all unusual in the circumstances. PC Gill conceded that Mr. Adow’s slowness was consistent with that of someone just being awoken from a deep sleep.
64While PC Gill described Mr. Adow as being uncooperative and unable to understand requests, the ICC video depicts on interaction in which Mr. Adow appears to be trying to cooperate and respond to PC Gill’s demands. Similarly, while he described Mr. Adow as “continuously reaching into his pockets and the vehicle”, the ICC shows that every time Mr. Adow does so it is in response to a demand made by PC Gill.
65When PC Gill asked Mr. Adow for his licence he tried to look for it. When PC Gill asked him if he had a house key he tried to look for it. It was not until some minutes into the interaction that PC Gill told Mr. Adow to stop going into his pockets. PC Gill conceded that there were times when he was “ok” with Mr. Adow going into his own pockets and times that he wasn’t. When PC Gill did eventually tell Mr. Adow to keep his hands out of his pockets he did.
66All of Mr. Adow’s answers were responsive to PC Gill’s questions and explained why he was sleeping in the car. The information that he gave that the car belonged to his mother, Dega Omar, was consistent with the vehicle checks that PC Gill had done previously.
67PC Gill knew Mr. Adow from previous interactions and was aware that he lived in the neighbourhood. PC Gill did not know Mr. Adow to be a drug user, nor did he testify to having any knowledge of Mr. Adow having issues with alcohol.
68PC Gill asked Mr. Adow twice if he was drunk and he said no both times. When PC Gill asked Mr. Adow if he would blow zero on a roadside Mr. Adow said yes.
69PC Gill did not detect any odour of alcohol throughout the course of his interaction with Mr. Adow, nor did he detect the odour of marijuana or see any evidence of drugs or alcohol.
70Prior to arresting Mr. Adow PC Gill had conducted a pat down search of him and also searched his bag. He did not find anything to substantiate a belief that Mr. Adow was intoxicated.
71Contrary to PC Gill’s evidence that Mr. Adow was aware of what he was being investigated for, it is clear from the ICC that Mr. Adow does not know what he is being investigated for. When PC Gill demands to know what he has in his bag Mr. Adow voluntarily hands it to him and asks, “what happened, what did I do wrong?”.
72Mr. Adow’s response to PC Gill telling him, “well you were in care and control of a car that you were sleeping in that’s been running since 4 o’clock right” is an understandable reaction. He reaches to turn the car off.
73The exchange that occurs between PC Gill and Mr. Adow when he is being handcuffed and arrested for care and control is telling:
Mr. Adow: “oh my god, you’re cuffing me now?”
PC Gill: “Yeah, I am cuffing you. Because having care and control of a vehicle and sleeping is still called care and control, right?”
Mr. Adow: “yeah”
PC Gill: “so until I determine that you are not intoxicated you are going to be under arrest”
Mr. Adow: “Officer, are you serious, you don’t have to do this man. Sir you don’t have to do this.”
PC Gill: “yeah well you don’t listen man, right?”
74This exchange strongly suggests that PC Gill was still trying to determine if grounds existed for an arrest, and that the reason that he was handcuffing Mr. Adow was because the officer thought that Mr. Adow wasn’t listening.
75Further, it is clear from PC Gill’s own evidence that he while he had a suspicion that Mr. Adow might be impaired by alcohol, the suspicion required some confirmation. A suspicion which he was seeking to confirm in his search of Mr. Adow’s clothing, his satchel and then his vehicle. When asked in cross-examination what he would have done had he not found drugs in the car, PC Gill testified, “I would have had to release him without any charges”. And indeed, Mr. Adow was not ultimately charged with impaired care and control.
76That grounds did not exist for an arrest at this stage is also supported by the evidence of PC Walters. It was PC Walters’ evidence that Mr. Adow was handcuffed, “due to being uncooperative with us” and for the purpose of “control during the investigation”. At one point PC Walters testified that prior to being arrested for possession for the purpose of trafficking, Mr. Adow was not under arrest.
77The only indicia of impairment that PC Walters testified to were, “incoherence, slow speech, sleepiness and drowsiness”. Incoherence is not supported by the ICC.
78Mr. Adow’s vehicle was parked in a parking spot in a residential parking lot. It was clear that he had been sleeping in the car with the engine running. PC Gill had no further information as to why this caused the caller to be “concerned” about impairment There was nothing in the circumstances that readily suggested that alcohol, or otherwise being too impaired to drive, was the reason for his sleeping in the car.
79While he may have appeared slow and drowsy this was consistent with his having been woken from a sleep. A review of the ICC reveals that he was trying to cooperate with PC Gill’s requests, which were not themselves always clear or consistent. The manner in which Mr. Adow reacted to PC Gill was not unusual or unexpected in the circumstances. He did not appear to have any trouble with balance, coordination or motor skills. If he evidenced any confusion it was nothing more than would be expected of someone who is unclear as to why he was being investigated.
80I do not find, in considering all of the circumstances here, that objectively speaking, reasonable and probable grounds existed to believe that Mr. Adow’s ability to drive was impaired by alcohol or any other substance.
81I find that PC Gill did not have reasonable and probable grounds for the impaired care and control arrest and the arrest was therefore unlawful.
(iii) Section 8 of the Charter
82It is agreed that the search of the vehicle cannot be justified as a search pursuant to an investigative detention. Since the arrest of Mr. Adow for impaired care and control was not lawful, the warrantless search cannot be justified and violated Mr. Adow’s section 8 rights.
83PC Gill testified that the search of Mr. Adow’s satchel and the pat down search, both conducted prior to the care and control arrest, were safety searches.
84Brief pat down searches for weapons, if conducted reasonably and for officer safety, are permissible during an investigative detention. If the pat down search, and the information available to the officer, yields additional safety concerns a further search may be warranted: R. v. Mann, 2004 SCC 52 at paras 42-45, R. v. Plummer, 2011 ONCA 350 at para 52 and 58.
85Here, unlike in Plummer, PC Gill had no information that Mr. Adow was armed. He was investigating a possible impaired care and control, not an offence of violence. And also unlike in Plummer, the first thing that PC Gill searched was Mr. Adow’s satchel.
86Prior to searching his satchel, PC Adow asked him “anything in your bag here?”. He did not ask Mr. Adow if he had any weapons.
87PC Gill testified that he had concerns for officer safety because Mr. Adow kept reaching into his pockets and the car. Not because he was reaching into his satchel.
88I accept that PC Gill may have had some basis to be concerned for officer safety. However, it is unclear in the circumstances of this case why PC Gill felt the need to search the satchel. Mr. Adow did not at any point try to reach into the satchel, and when PC Gill asked him what was in it he voluntarily took it off and handed it to the officer. PC Gill was content to continue questioning Mr. Adow prior to searching the bag.
89When I consider all of this cumulatively I am lead to conclude on a balance of probabilities that the satchel search was a search for evidence and not a safety search and therefore also in violation of Mr. Adow’s section 8 rights.
(iv) Sections 10(a) and (b) of the Charter
90Section 10 of the Charter provides that everyone has the right on arrest or detention to be (a) informed promptly of the reasons therefor; and (b) to retain and instruct counsel without delay and to be informed of that right. Subject to concerns for officer or public safety, both “promptly” and “without delay” mean immediately: R. v. Suberu, 2009 SCC 33, at para 42.
91Mr. Adow was initially detained by PC Gill at 10:06 am. The impaired care and control arrest came at 10:11 am. He was given his rights to counsel at 10:15 am after he had been placed in the back of PC Gill’s cruiser.
92Mr. Adow was detained for just under 10 minutes prior to be given his rights to counsel. Throughout that time PC Gill was questioning him, searching his bag and person and searching his car. PC Gill characterised the search of his person and bag as an officer safety search. The search of the car was clearly not an officer safety search.
93The circumstances are not dissimilar to those in the recent Ontario Court of Appeal decision of R. v. Thompson, 2020 ONCA 264, [2020] O.J. No.1757 (C.A.). The sequence of events in Thompson was as follows: Mr. Thompson was detained, arbitrarily, at 12:23 a.m. and arrested at 12:26 am. Upon his arrest a pat down search was conducted. Mr. Thompson was placed in the rear of the cruiser at 12:33 am. The police then spent the next 10 minutes searching Mr. Thompson’s car. After they finished Mr. Thompson was read his rights to counsel at 12:44 am.
94Speaking for the Court, Jamal J., as he then was, found that Mr. Thompson’s section 10(b) rights were triggered by his detention rather than his later arrest. Jamal J. declined to decide whether the delay to conduct a pat down search was justified, finding that the later delay when Mr. Thompson was placed in the back of a cruiser for approximately 10 minutes as they searched his car was unjustified.
95In this case, without deciding whether his rights to counsel could have been given earlier, there is no reason why they were not given to Mr. Adow at the time of the impaired care and control arrest, and prior to the search of his vehicle. This was not a delay that was justified by a safety search. PC Walters conceded that failing to give Mr. Adow his rights to counsel at that juncture was, “something that we missed because we were into doing our investigation so we missed doing his rights to counsel at the time”.
96This failure to give Mr. Adow his rights to counsel immediately upon the initial arrest violated his section 10(b) rights.
(v) Sections 7 and 12 of the Charter
97The amount of force used by PC Walters to control and re-cuff Mr. Adow was reasonable in the circumstances. It was understandably concerning to PC Walters that the person in his custody had slipped out of his handcuffs. PC Walters’ reaction was swift and forceful but it was not excessive. Mr. Adow was uninjured. I do not find that PC Walters’ actions in pushing Mr. Adow against the car in order to re-cuff him violated Mr. Adow’s section 7 and 12 rights.
98While I find that PC Walters’ actions in re-cuffing Mr. Adow were not unreasonable, I do not accept PC Gill’s evidence that Mr. Adow was intentionally trying to escape. It appears from the video that his hand just slipped out of the cuff and it was PC Walters’ evidence that Mr. Adow did not move his feet or try to pull away.
(vi) Section 24(2) of the Charter
99The question of whether or not evidence is to be excluded pursuant to section 24(2), requires an examination of the impact of admitting the evidence on public confidence in the justice system in the long term. Three factors must be considered and weighed: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the accused’s Charter-protected interests; and (iii) society’s interest in the adjudication of the case on the merits. My task is to balance the assessments under these three inquires “to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute”: Thompson, at para 74.
The seriousness of the Charter-infringing state conduct
100PC Gill was a relatively new officer at the time of the incident. His statements to Mr. Adow at the scene suggest a confusion on his part as to the line between reasonable and probable grounds for an arrest and reasonable suspicion to conduct an investigative detention. He was initially alone and appeared somewhat unsure as to how to approach the investigation. He testified that he was concerned that Mr. Adow might attempt to flee in the car, yet he never asked him to turn the car off. He testified that he was concerned for officer safety because Mr. Adow was reaching into his pockets, and yet it was not until several minutes in that he told Mr. Adow to keep his hands out of his pockets.
101PC Walters testified that they “missed” giving Mr. Adow his rights to counsel until he was placed into the cruiser. And it appears to have been PC Walters understanding that Mr. Adow was being handcuffed for “control during the investigation”.
102I find that the officer’s conduct in violating Mr. Adow’s Charter rights was more negligent than it was wilful or deliberate. However, that conduct led to breaches of Mr. Adow’s section 8, 9 and 10(b) rights. These were not technical breaches or understandable mistakes. It was conduct that evidenced a lack of concern for Mr. Adow’s Charter rights. While not the most egregious conduct I find that it falls on the more serious end of the spectrum.
Impact of the Breach on Mr. Adow’s Charter-Protected Interests
103Mr. Adow was sleeping in his car. There was nothing illegal or dangerous about where his car was parked. There is no evidence that he was bothering anyone or creating any kind of nuisance other than polluting the environment by leaving a car running for 4 hours. He was awoken and questioned in a manner that could not be described as friendly. His bag was taken from him and searched. His person was searched. And then his car was searched. He was not provided with his rights to counsel until all this had been done. These breaches were neither trivial nor fleeting. He is a young black man who lives in Moss Park, a significantly less affluent pocket of the city. His Charter rights are equal to those of any citizen in any neighbourhood. I find the impact of the breaches on his Charter protected interests to be serious.
Society’s interest in the adjudication of the case on the merits
104The evidence here is reliable and essential to the Crown’s case. It is the Crown’s case. This favours admission of the evidence.
Balancing the factors
105In R. v. Le, 2019 SCC 34 the Supreme Court considered and clarified the interaction between the three lines of inquiry under section 24(2). The majority found that while the first two inquiries typically “both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion”. Similarly, evidence can be excluded even where the first two inquiries do not both support exclusion. And while the third inquiry typically points to admission, it is not a rubber stamp for inclusion of real evidence. Where the first two inquiries together make a strong case for exclusion, the third inquiry “will seldom if ever tip the balance in favour of admissibility”: Le, at paras 141-2.
106Here I find that the first two inquiries call for exclusion of the evidence strongly enough that the third inquiry does not tip the balance in favour of admissibility.
III. Conclusion
107All of the evidence seized as a result of the search of Mr. Adow’s vehicle is excluded. As that constitutes the case for the Crown I find Mr. Adow not guilty on all counts.
Released: December 10, 2021 Signed: Justice Newton-Smith
1The car matches the make and licence plate described by the concerned citizen