ONTARIO COURT OF JUSTICE DATE: February 8, 2021 COURT FILE No.: 18-37515
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
DWAYNE HOPKINS
Before Justice P.K. Burstein
Heard on January 28 and 29, 2021 Reasons for Judgment released on February 8, 2021
Counsel: R. Greenway, for the Crown M. Jacula, for the accused
1As a result of a traffic stop conducted by Sgt. McCurdie, Mr. Hopkins was placed under arrest pursuant to the Highway Traffic Act (“HTA”) for the offence of driving while suspended. Before being placed in the rear of the police cruiser, Sgt. McCurdie searched through Mr. Hopkins’ pockets. Sgt. McCurdie discovered small amounts of heroin and crack cocaine as well as several small baggies of crystal methamphetamine. Sgt. McCurdie then arrested Mr. Hopkins for the Controlled Drugs and Substances Act offences. A search of Mr. Hopkins’ vehicle by another officer on scene led to the discovery of a backpack sitting on the floor behind the passenger seat (where another male had been when Sgt. McCurdie first pulled the truck over). A search of the backpack revealed baggies with approximately 73 grams of crystal methamphetamine, 80 oxycodone pills and 16 grams of cocaine. The backpack also contained a notebook with names and numbers written in it.
2Mr. Hopkins was charged with four counts of possessing drugs for the purpose of trafficking; namely, crystal methamphetamine, oxycodone, cocaine and methamphetamine. He was also charged with four more counts of possessing drugs; namely, fentanyl, hash oil, hydromorphone and crack cocaine.
3At his trial before me, Mr. Hopkins sought exclusion of the evidence seized from his person and truck on the basis that Sgt. McCurdie’s initial detention and arrest violated his ss. 8 and 10(b) Charter rights. Failing that, Mr. Hopkins contends that, even if admitted, the evidence fails to prove that he was knowingly in possession of the backpack’s contents and, thus, that the Crown has proven only that he is guilty of the simple possession of the drugs found on his person.
4At the blended trial and voir dire, I heard from the two police officers involved in the traffic stop: Sgt. McCurdie and Cst. O’Connor. I did not hear from the passenger who was in Mr. Hopkins’ vehicle that day nor from Mr. Hopkins. I also heard expert opinion evidence from D.C. Naccarato on the issue of whether possession of the items in Mr. Hopkins’ pockets and the items in the backpack was indicative of the drugs being possessed for the purpose of trafficking.
Summary of the Relevant Legal Principles
5It is trite law that the Crown bears the burden of proving the essential elements of a criminal charge beyond a reasonable doubt. In this case, that meant the Crown must prove beyond a reasonable doubt that Mr. Hopkins exercised “control” over the drugs found, that he had knowledge of the presence of those drugs, and that any possession was for the purpose of trafficking (as opposed to his own personal use).
6While the evidence leaves little doubt that Mr. Hopkins had both knowledge and control over the items found on his person, the Crown’s proof that Mr. Hopkins was aware of the drugs and debt list in the backpack is premised on circumstantial evidence. As such, I must keep in mind what the Supreme Court of Canada said about circumstantial evidence in R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33:
When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: [citations omitted]. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": [citation omitted]. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
7Before asking myself whether the evidence as a whole has met the Crown’s burden of proof on some or all of the charges, I must first determine what evidence is properly admissible. Mr. Hopkins challenged the admissibility of the items found on his person and in the vehicle on the basis that the police violated his ss. 8 and 10(b) Charter rights. It is his burden to prove on a balance of probabilities that admission of that evidence could bring the administration of justice into disrepute and, thus, must be excluded pursuant to s. 24(2) of the Charter.
8While Mr. Hopkins bears the ultimate burden of showing that s. 24(2) of the Charter calls for exclusion of the evidence, it the Crown’s burden to demonstrate that the warrantless searches of Mr. Hopkins and his vehicle were constitutionally compliant. In the circumstances of this case, that issue turns on whether Sgt. McCurdie’s arrest of Mr. Hopkins for drive under suspension was constitutionally reasonable. If it was, then there is no question that the search of Mr. Hopkins’ jacket incidental to that arrest was justified and, further, that the subsequent search of the truck was reasonable as an incident to the additional arrest for the drugs found in Mr. Hopkins’ jacket: see R. v. Nolet, 2010 SCC 24, [2010] S.C.J. No. 24.
9In arguing that Sgt. McCurdie’s arrest of Mr. Hopkins was legally justified, the Crown cites McCurdie’s testimony that Mr. Hopkins was arrested for drive while under suspension and points to s. 217 of the provincial Highway Traffic Act as authority for the arrest. There was little dispute that Sgt. McCurdie believed that Mr. Hopkins was a suspended driver and that there was an objective basis for that belief. Indeed, according to Sgt. McCurdie’s testimony at trial, Mr. Hopkins readily admitted to not having a licence when McCurdie first pulled him over. The real issue about the constitutionality of the arrest, therefore, is whether Sgt. McCurdie exercised the power of arrest under the Highway Traffic Act as a pretext for enabling him to invade Mr. Hopkins’ privacy in the pursuit of a criminal investigation: R. v. Mayor, 2019 ONCA 578, [2019] O.J. No. 3555 at paras. 7-10 (C.A.) and R. v. Nolet, supra at paras. 24 and 38-41. As most of the blended trial and voir dire focussed on that issue, I too have focussed the following review on that evidence.
Summary of the Evidence
10On October 17, 2018, staff at the DRPS property bureau in Courtice reported that Dwyane Hopkins was observed driving away in a red truck. The concern was that Mr. Hopkins was known to the police as being a suspended driver. A call went out across the police radio to be on the lookout for Hopkins’ vehicle.
11That same afternoon, Sgt. McCurdie was patrolling in the Courtice area when the call came through. He had just passed the red truck heading in the opposite direction on Courtice Road. Sgt. McCurdie turned around and caught up to Mr. Hopkins a few minutes later and conducted a traffic stop.
12Sgt. McCurdie approached the driver’s side of the truck. Mr. Hopkins was driving. A man, later identified (by Cst. O’Connor) as Mark Mulhall, was in the passenger seat. Sgt. McCurdie asked Mr. Hopkins to produce his licence, ownership and insurance. Mr. Hopkins told Sgt. McCurdie that he did not have a driver’s licence or insurance but that he did have an ownership for the vehicle in his wallet. Sgt. McCurdie clarified with Mr. Hopkins that the reason Mr. Hopkins had no licence was because it was suspended.
13Mr. Hopkins then pulled out his wallet to show Sgt. McCurdie his ownership. Sgt. McCurdie observed a small packet sticking out of Mr. Hopkins’ wallet. Suspecting that the package contained fentanyl based on its size and shape, Sgt. McCurdie asked Mr. Hopkins whether it was fentanyl. Mr. Hopkins said it was “shatter”, a cannabis extract. Mr. Hopkins asserted that it had become legal to possess that day. Sgt. McCurdie explained that cannabis had only become legal to possess if it was purchased from a government-licenced dispensary. Mr. Hopkins admitted that he had purchased the package the day before. Sgt. McCurdie told Mr. Hopkins that because the information which had been released about the legalization of cannabis had been somewhat unclear, he was not going to charge Mr. Hopkins for possession of the shatter.
14Sgt. McCurdie followed that up by telling Mr. Hopkins: “you would only have problems if you have more drugs on your person or in the truck”. According to Sgt. McCurdie, it was at that point that Mr. Hopkins’ demeanour changed. He became nervous and said that he wanted to talk to his lawyer. Almost immediately after the apparent change in Mr. Hopkins’ demeanour, Sgt. McCurdie asked Mr. Hopkins to step out of the truck. Sgt. McCurdie had decided to arrest Mr. Hopkins for the drive under suspension offence for which he had initially stopped the truck. It was approximately 2:46 p.m.
15Sgt. McCurdie testified that he had asked Mr. Hopkins to step out of the truck so as to prevent a possible pursuit. According to Sgt. McCurdie, that is always a possibility when a motorist remains in the driver’s seat. By the time that Sgt. McCurdie had asked Mr. Hopkins to step out of the truck, Cst. O’Connor had arrived on scene (at 2:44 p.m.) and was already standing at the passenger side window speaking to Mr. Mulhall.
16At 2:46 p.m., Sgt. McCurdie formally arrested Mr. Hopkins for drive under suspension. While being handcuffed, Mr. Hopkins told Sgt. McCurdie that he could not be arrested because it was legal. Sgt. McCurdie took that remark to mean that Mr. Hopkins believed he was being arrested because of the cannabis extract in his wallet. Sgt. McCurdie thus told Mr. Hopkins that the arrest was for drive under suspension and not for the cannabis extract. Sgt. McCurdie then took Mr. Hopkins back to the police cruiser.
17Prior to lodging Mr. Hopkins in the rear of the cruiser, Sgt. McCurdie searched through Mr. Hopkins’ pockets. Sgt. McCurdie testified that he did so in order to make sure that Mr. Hopkins was not in possession of anything which could help him escape or which could otherwise pose a safety risk. During that search Sgt. McCurdie found some plastic baggies and a pill bottle containing what appeared to be crystal methamphetamine, crack cocaine and heroin. As a result of those discoveries, Sgt. McCurdie placed Mr. Hopkins under arrest for the Controlled Drugs and Substances Act (“CDSA”) offences of possession and possession for the purpose of trafficking.
18Following that second arrest, Sgt. McCurdie read Mr. Hopkins the s. 10(b) warning. Mr. Hopkins said that he wanted to speak to his lawyer, Mark Jacula. It was now 2:47 p.m.
19Sgt. McCurdie alerted Cst. O’Connor to the drugs found in Mr. Hopkins’ pockets and instructed him to arrest Mr. Mulhall for the CDSA offences. Cst. O’Connor did so. Cst. O’Connor searched Mr. Mulhall following the arrest but found nothing on his person.
20After lodging Mr. Mulhall in the back of his own cruiser, Cst. O’Connor returned to the truck to search the passenger side. It was a four-door truck. On the floor behind the front passenger seat was a black backpack. According to Cst. O’Connor, the backpack would have been readily accessible to someone sitting in the driver’s seat by reaching through the gap between the two seats to the floor area behind the passenger seat. Inside the backpack was a large quantity of what appeared to be crystal methamphetamine as well as containers with small amounts of other drugs and some drug paraphernalia. Cst. O’Connor re-arrested Mr. Mulhall for possession for the purpose of trafficking.
21At 2:52 p.m., after Cst. O’Connor had already removed Mr. Mulhall from the truck, Sgt. McCurdie searched the driver’s area. He found a green digital scale on the floor in front of the driver’s seat.
22Sgt. McCurdie transported Mr. Hopkins to the police station, arriving there at 3:05 p.m. As a result of a further search of Mr. Hopkins’ pockets during the booking process, Sgt. McCurdie discovered two more plastic baggies containing crack cocaine. He also found a pencil case containing $3080 in cash. Sgt. McCurdie testified that he “casually asked” Mr. Hopkins how much money was in the pencil case and that Mr. Hopkins responded, “around 2 grand”. However, Mr. Hopkins had not yet been afforded an opportunity to speak with a lawyer as he had requested.
23Sgt. McCurdie testified to having seized six different packages of drugs from Mr. Hopkins’ pockets. One weighed 3.6 grams and the others weighed between 0.1 and 1.7 grams.
24Cst. O’Connor examined the contents of the backpack at the station. He found a notebook with handwritten names, numbers and words which D.C. Naccarato later opined was as a drug dealer’s debt list. Inside the backpack, Cst. O’Connor found 80 pills of Oxycodone, 16 grams of cocaine and three baggies containing 14.7, 18.5 and 40 grams of crystal methamphetamine. He also found smaller amounts of cocaine, cannabis edibles, hydromorphone, hash, hash oil and heroin.
Analysis and Findings
25I begin by noting that I found all three of the police witnesses to be honest and reliable. All three were fair and reasonable when testifying. None were argumentative in cross-examination and all three readily made concessions when appropriate. With respect to the evidence of Sgt McCurdie and Cst. O’Connor, I accept their versions of the events at the roadside.
26As for the expert opinion of D.C. Naccarato, I accept his opinion that the drugs in the backpack were being possessed for the purpose of trafficking. The quantity of crystal methamphetamine and the “debt list” made this conclusion rather obvious. It seems equally obvious that, in the circumstances of this case, the sheer variety of drugs in the backpack (and in Mr. Hopkins’ pockets) implies that all of those drugs were being possessed for the purpose of potential sale, despite the fact that the Crown has chosen to only allege the purpose of trafficking in relation to four of those drugs. On the other hand, I was not convinced by the expert opinion of D.C. Naccarato that, if considered in isolation, the items found on Mr. Hopkins’ person necessarily implied a purpose of trafficking. It was only if possession of the items found in Mr. Hopkins’ pockets could be linked to the items found in the truck – i.e., the scale on the floor of the driver’s seat and the contents of the backpack – that D.C. Naccarato was firmly of the view that the crystal methamphetamine in Mr. Hopkins’ pockets was also possessed for the purpose of trafficking. In any event, with or without D.C. Naccarato’s opinion, absent a proven link to the items in the backpack, I would not have been satisfied beyond a reasonable doubt that Mr. Hopkins was possessing the drugs in his pockets for the purpose of trafficking. Put differently, I would only have been satisfied that he was guilty of possessing those drugs for his own personal use.
27In view of the evidence at the blended trial and voir dire, the verdicts ultimately depended on answers to the following two questions:
- Did Sgt. McCurdie violate Mr. Hopkins ss. 8 and/or 10(b) Charter rights and, if so, what, if any, evidence should be excluded as a result?
- Did the admissible evidence prove beyond a reasonable doubt that Mr. Hopkins had knowledge of the items contained in the black backpack?
28Dealing first with the Charter issue, I found that Sgt. McCurdie violated Mr. Hopkins’ rights as guaranteed by s. 8. The question in relation to s. 8 of the Charter was not whether Sgt. McCurdie could have arrested Mr. Hopkins for the HTA offence of drive under suspension, but whether in fact Sgt. McCurdie did so as a ruse to facilitate a criminal investigation. Sgt. McCurdie was never asked in-chief why he arrested Mr. Hopkins for the HTA offence, as opposed to simply writing him “a ticket” (i.e., an “Part III” summons). In cross-examination, Sgt. McCurdie readily acknowledged that it was uncommon for him to actually arrest a motorist for drive under suspension. Although there was a reference made to wanting Mr. Hopkins to get out of the driver’s seat so as to remove the risk of him possibly driving away, Sgt. McCurdie never suggested that this concern was the reason he decided to place Mr. Hopkins under arrest rather than have him stand by while Sgt. McCurdie wrote up a summons. Indeed, by the time that Sgt. McCurdie asked Mr. Hopkins to step out of the truck, Cst. O’Connor had already arrived on scene and would have been readily available to safeguard against the possibility of Mr. Hopkins getting back into the driver’s seat and driving away while a summons was being prepared.
29At trial, Sgt. McCurdie acknowledged that his initial questioning of Mr. Hopkins about the package was in furtherance of a criminal investigation into possible drug possession. Immediately following that discussion, Sgt. McCurdie continued by telling Mr. Hopkins: “you would only have problems if you have more drugs on your person or in the truck” – a comment which Sgt. McCurdie conceded was also in relation to a criminal investigation. It was in response to Sgt. McCurdie’s remark about “more drugs on your person or in the truck” that Mr. Hopkins became nervous and demanded to speak to his lawyer. According to Sgt. McCurdie, it was that unprompted request to consult counsel and the accompanying nervousness which motivated Sgt. McCurdie to exercise the power to arrest Mr. Hopkins for the HTA offence. It is noteworthy, that Sgt. McCurdie also acknowledged that it was reasonable for Mr. Hopkins to have believed the arrest was in relation to drugs and not drive under suspension.
30Sgt. McCurdie was a very experienced officer. Before assuming the role as a sergeant supervising constables on the road, he had two years of experience investigating street-level drug dealing and then five more years with the drug enforcement unit. I have no doubt that by October 17, 2018, he was well aware of the authority to search a person as an incident to any type of arrest before lodging them in the back seat of his police cruiser. Based on his very honest explanation for why he arrested Mr. Hopkins, I am readily satisfied on a balance of probabilities that Sgt. McCurdie only took the unusual step of exercising the HTA’s power of arrest to process the drive under suspension offence so that he could acquire some putative authority to investigate whether Mr. Hopkins had “more drugs on [his] person or in the truck”. In the absence of any testimony from him to the contrary, I am satisfied that Sgt. McCurdie did not exercise the arrest power for any purpose related to the charge of drive under suspension or to the HTA in general.
31To be clear, in light of my finding that Sgt. McCurdie’s sole purpose in resorting to the HTA’s arrest power was to further his criminal investigation, this case is materially different from R. v. Nolet, supra and others like it. In Nolet, the Supreme Court noted that the trial judge had found that when exercising the regulatory authority to detain and search the motorist, the officer had been motivated by both criminal and regulatory investigative purposes. Based on my finding that Sgt. McCurdie’s only purpose in exercising the HTA’s power of arrest was to afford him some putative authority to search for drugs, this case is more akin to the Ontario Court of Appeal’s decision in R. v. Mayor, 2019 ONCA 578, supra (and also R. v. Mhlongo, 2017 ONCA 562, [2017] O.J. No. 3439 at paras. 34 and 35 (C.A.)).
32It is not enough that Sgt. McCurdie could have lawfully arrested Mr. Hopkins pursuant to s. 217 of the HTA for the offence of drive under suspension. The Charter issue turns on why Sgt. McCurdie actually did what he did and not what the law would have permitted him to do. In a similar vein, Doherty J.A. in R. v. Santana, 2020 ONCA 265, emphasized that the justification for a warrantless search must be assessed based on what the officer was actually thinking at the time of the search (at para. 28):
The scope of the power to search as an incident to an arrest is fact-specific: R. v. Fearon, at para. 13. Valid police purposes associated with searches incidental to arrest include police safety, public safety, securing evidence, and discovering evidence. Two points should be stressed. First, the purpose relied on to justify the search at trial must have been the actual reason the police conducted the search. After-the-fact justifications that did not actually cause the police to conduct the search or seizure will not do. Second, the police purpose must be related to the specific reason for the arrest.
After-the-fact justifications advanced by the Crown at trial cannot provide constitutional shelter for an officer’s unconstitutional exercise of some putative authority for a warrantless search.
33Although there was no actual arrest involved in the case of R. v. Aucoin, 2012 SCC 66, [2012] S.C.J. No. 66, the circumstances surrounding the improper use of the HTA’s arrest power in this case is similar to what happened there. In Aucoin, the officer had detained the accused because he had reasonable grounds to believe the accused had committed a traffic infraction. Concerned about the possibility of flight while he wrote up a ticket for the infraction, the officer decided to detain the accused in the rear of the cruiser. Before doing so, the officer conducted a security search of the accused’s person and discovered various illegal drugs. The concerns expressed by Moldaver J. in Aucoin about allowing traffic infractions to serve as a justification for frisk searches of motorists under the guise of “security searches” required for detaining them in a cruiser are equally applicable to this case (at paras. 33 to 40):
To be clear, I do not see this case as turning on whether Constable Burke had the authority to detain the appellant in the rear of his police cruiser having lawfully stopped him for a regulatory infraction. Rather, the question is whether he was justified in exercising it as he did in the circumstances of this case.
That brings me to what I consider to be the flaw in the trial judge's analysis in this case. Given the adverse impact that the decision to secure the appellant in the rear of the cruiser would have on his liberty and privacy interests, I am of the view that a more stringent test than the one applied by the trial judge was required to support her determination that Constable Burke's actions were lawful in the circumstances.
Constable Burke knew that as a prelude to securing the appellant in the rear of his cruiser, he was going to do a pat-down search on him for reasons of officer safety and the appellant's safety. His reason for wanting to secure the appellant was to prevent the appellant from walking away and disappearing into the crowd. The trial judge accepted the officer's evidence in that regard. It was late at night, the street was crowded with people, and the appellant's vehicle was off-limits to him.
Accepting, as the trial judge did, that Constable Burke was concerned about the appellant walking away, I am nonetheless of the view that in the context of this case, in order to justify securing the appellant in the back seat -- knowing that this would also entail a pat-down search -- detaining the appellant in that manner had to be reasonably necessary. 2 In other words, the question to be asked is whether there were other reasonable means by which Constable Burke could have addressed his concern about the appellant disappearing into the crowd, short of doing what he did. If there were other reasonable means to ensure the appellant would not flee the scene, then detaining him in the police cruiser could not be said to be reasonably necessary and would thus have constituted an unlawful detention within the meaning of s. 9 of the Charter: Clayton, at para. 20.
Without wishing to second-guess the actions of the police and recognizing, as I do, that the police are often required to make split-second decisions in fluid and potentially dangerous situations, I am nonetheless of the view that Constable Burke's actions, though carried out in good faith, were not reasonably necessary.
34Based on Aucoin, not only do I find that Sgt. McCurdie exercised the HTA arrest power for an unconstitutional purpose, I would also have found that arresting Mr. Hopkins for drive under suspension was not “reasonably necessary”: see R. v. Aucoin, supra at paras. 42 and 43. Like in Aucoin, Sgt. McCurdie had another officer readily available to maintain security of Mr. Hopkins while Sgt. McCurdie returned to his cruiser to write up the traffic ticket. Consequently, I would also find that Sgt. McCurdie’s arrest of Mr. Hopkins for drive under suspension violated Mr. Hopkins’ s. 9 Charter rights.
35In addition to his unconstitutional arrest and search of Mr. Hopkins, Sgt. McCurdie also violated his s. 10(b) Charter rights. The law is clear: although a motorist is “detained” within the meaning of s. 10 of the Charter when they are stopped by the police, so long as the traffic stop remains focused on regulatory driving infractions, the informational requirements of s. 10 are suspended. As outlined above, however, after observing the package of cannabis “shatter” in the wallet, Sgt. McCurdie’s questioning of Mr. Hopkins became focussed on a criminal investigation into the possible possession of drugs. Sgt. McCurdie acknowledged that it would have been reasonable for Mr. Hopkins to have thought so. Nevertheless, Sgt. McCurdie did not pause to inform Mr. Hopkins of his rights to counsel. Instead, when Mr. Hopkins suddenly asserted his right to consult counsel in the face of the investigation’s clear shift to drugs, Sgt. McCurdie relied upon that assertion of the right to counsel as a basis for exercising the HTA’s power of arrest.
36In deciding whether or not any of the Charter violations require the exclusion of any or all of the evidence, I turn to the Supreme Court of Canada’s decision in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32. In Grant, the Court held that this determination is to be made by assessing and balancing the following three factors:
- The seriousness of the Charter-infringing state conduct;
- The impact of the breach on the Charter-protected interests of the accused; and
- Society’s interest in the adjudication of the case on its merits.
37The seriousness of the violations in this case is increased by virtue of the fact that the sheer number of rights violations demonstrated a larger pattern of disregard for the Charter. Having said that, I am satisfied that Sgt. McCurdie did not act in “bad faith” or that he was in any way out to “get” Mr. Hopkins. Still, Sgt. McCurdie’s candid explanations at trial for his investigative conduct made clear that he did not perceive any constitutional impediment to his investigative approach. By October of 2018, it should have been obvious to Sgt. McCurdie that he was disregarding well-settled constitutional limits on his investigative authority. Indeed, it is hard for me to not conclude from his testimony that Sgt. McCurdie considered it appropriate to ignore those constitutional limits because doing so allowed him to take advantage of persons he was investigating.
38As for the impact of Sgt. McCurdie’s Charter-infringing conduct, I am not satisfied that his failure to honour his s. 10(b) informational obligations had any real impact on Mr. Hopkins in this case. The evidence shows that, despite not having been promptly informed of his right to consult counsel, Mr. Hopkins was already well aware of the right. It is true that Sgt. McCurdie also violated Mr. Hopkins’ s. 10(b) rights by failing to hold off questioning him once Mr. Hopkins had expressed a desire to speak to counsel. However, that questioning did not produce any evidence of significance. Indeed, none of the s. 10(b) violations in this case were closely connected with the discovery of any evidence upon which the Crown relied at trial.
39The impact of Sgt. McCurdie’s s. 8 violation was more significant, at least in so far as the improper use of the HTA arrest power led to a search of Mr. Hopkins’ pockets. The type of security frisk search described by Sgt. McCurdie involves a forcible groping of the arrested person’s body. This impacted Mr. Hopkins’ autonomy and bodily integrity – core values protected by s. 8 of the Charter. The frisk search also involved rummaging through Mr. Hopkins’ pockets. Pockets are designed to be receptacles close to a person’s body which allow them to carry valuables or personal items. There is a high level of privacy attached to the contents of one’s pockets.
40By contrast, the subsequent search of the truck had a much lesser impact on Mr. Hopkins’ s. 8 interests. Our constitutional jurisprudence has long recognized a much lesser expectation of privacy in a vehicle. In this case, the search in question did not involve any intrusion into a locked or closed compartment of the vehicle. The backpack was in plain view on the floor of the vehicle. Moreover, even if Mr. Hopkins had not been improperly arrested for drive under suspension, the consequence of the traffic stop would most likely have been an impounding of his truck. While Sgt. McCurdie testified that he would always explore alternatives to impounding a vehicle following a charge of drive under suspension, there was no evidence before me that any such alternative would reasonably have been available in this case. Given the defence burden of proof under s. 24(2) of the Charter, I am unable to find that the truck would not inevitably have been towed to a police impound yard. Accordingly, unlike the items secreted in Mr. Hopkins’ pockets, the backpack sitting in plain view would likely have been collected by the police pursuant to an inventory search of the vehicle’s contents.
41Finally, I must factor in that the drugs seized are reliable evidence which is, in so far as the backpack’s contents are concerned, indispensable to the Crown’s case on serious charges. That would tend to favour admission, not exclusion, of the evidence. On the other hand, the evidentiary value of the drugs found in Mr. Hopkins’ pockets relates more to the probative force of linking him to the items found in the backpack. The importance of that potential link arose only because of the manner by which the Crown chose to prosecute its case against Mr. Hopkins. The Crown chose to not call the passenger to testify as to the origins of the backpack. While no adverse inference can be drawn against the Crown’s case for not calling the passenger to testify, the fact that the Crown chose to not call a witness who may otherwise have linked Mr. Hopkins to the backpack reduces the prejudice to the public interest from excluding other unconstitutionally obtained evidence of that link.
42In view of the much more significant privacy interest violated by Sgt. McCurdie’s unconstitutional search of Mr. Hopkins’ person, I find that the combined force of the first two Grant factors in this case outweigh the reduced inclusionary force of the third Grant factor as it relates to the evidence seized from his pockets. However, having regard to the diminished privacy interest that was impacted by the seizure of the items in the vehicle, the seriousness nature of the offences that was evidenced by the backpack’s contents tilts the s. 24(2) balance in favour of admission.
43In view of my conclusions in relation to s. 24(2) of the Charter, the Crown’s case against Mr. Hopkins consists of the items discovered in the vehicle and the portions of D.C. Naccarato’s opinion that was aimed exclusively at those items. There was nothing in or on the backpack which pointed to Mr. Hopkins as its owner – no identifying documents and no forensic identification (such as fingerprints or handwriting comparisons to the contents of the “debt list”). While the scale found on the floor in front of the driver’s seat could reasonably be linked to ownership of the backpack, the inference that the scale was left there by Mr. Hopkins is hardly the only reasonable inference. The evidence adduced by the Crown failed to eliminate the reasonable possibility that the scale and the backpack both belonged to the passenger, Mr. Mulhall.
44Unlike other cases involving an allegation of constructive possession by the driver of a vehicle, the issue in this case was not whether Mr. Hopkins had knowledge of valuable contraband found secreted in the truck he was driving. The drugs in this case were not found in any of the vehicle’s built-in compartments, but in an opaque carrying case. By design, a backpack is intended to be easily transportable. Carrying a backpack is not an inherently suspicious activity, certainly not an activity which should or would arouse a driver’s suspicions if their passenger entered the vehicle carrying one. While the backpack was within reach of Mr. Hopkins as the driver, it was discovered behind the passenger seat in a location consistent with where the passenger may have placed the backpack upon entering the truck. Equally, the scale was found on the front floor of the truck in a location where the passenger could easily have discarded it without anyone noticing. While I recognize that the failure to call a witness should rarely be weighed against either party (see R. v. Cook, 1997 SCC 392, [1997] 1 S.C.R. 1113), in the circumstances of this case, the Crown’s decision to not call the passenger to testify about ownership of the backpack left open the very reasonable possibility that it was the passenger who brought it (and the scale) into the truck and that Mr. Hopkins remained unaware of its contents.
45The circumstantial evidence does not satisfy me beyond a reasonable doubt that Mr. Hopkins had knowledge of the contents of the backpack.
46In the end, I am not satisfied that the Crown has proven any of the criminal charges in the Information beyond a reasonable doubt.
47Mr. Hopkins is found not guilty of all charges.
Released: February 8, 2021 Signed: Justice P.K. Burstein
