Court File and Parties
ONTARIO COURT OF JUSTICE DATE: 2022 04 28 COURT FILE No.: Bradford 197130
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
AMIRHOSEIN ALIPOURBATI
Before: Justice David S. Rose
Heard on: January 25, 26, March 29 – 31, 2022
Reasons for Judgment released on: April 28, 2022
Counsel: Mr. Kandola, for the Crown Mr. Fedorowicz, counsel for the accused Amirhosein Alipourbati
1Mr. Alipourbati pleaded not guilty to several weapons charges. All arose from a traffic stop on June 27, 2019, when a handgun was seized from the car he was driving. Because of the issues raised at trial nothing turns on the language of each charge on the Information. The Charges include possession under the following sections of the Criminal Code: 91(1); 92(1); 86(1); 86(2); 90(1); 94(1); 95(1); 96(1); 88. At the conclusion of the case the Crown invited dismissal of Counts 7, 9 and 10, which related to possession of brass knuckles for which there was no evidence. This ruling therefore covers the remaining counts, namely 1 – 6, and 8.
2During the course of the trial Mr. Fedorowicz admitted all essential elements of Counts 1 – 6, and 8 subject to the Charter Application. In other words the case falls to be determined on whether Mr. Alipourbati has established that his rights under ss. 7, 8, 9, 10(a) & (b) have been violated, and if they were should the evidence of the handgun be excluded from the trial. There is another aspect of the Charter Application. Mr. Fedorowicz argues that evidence was lost and therefore an alternate remedy under s. 24(1) of the Charter inures to Mr. Alipourbati. The remedy sought is an adverse inference against the Crown.
Evidence
3Constable Robert Griffen has been a police officer since 2008, performing a variety of roles over those years. He has been with South Simcoe police since 2017, where his responsibilities have included traffic and marine patrol, and accident reconstruction. On June 27, 2019 he was working with South Simcoe police in the traffic and marine unit. It was coming up to the Canada Day long weekend, so various police forces combined to publicize and then enforce 4 traffic concerns: Impaired Operation; Seatbelt violations, Speed, and Distracted Driving. He called those the ‘big 4’. The day started with a police publicity event on Highway 400 at a traffic stop. He planned to go there with Sgt. Phillips who was on also duty in the traffic unit that day.
4From the media scrum Cst. Griffen moved to Canal Road east of Highway 400, not far from the media event on Highway 400. He described Canal Road as a source of many community complaints over the years. Apparently Canal Road is short cut for people traveling between Lake Simcoe and Highway 400. The road is one lane in each direction and skirts the northern banks of the Holland Marsh agricultural area. It is rural, but has a 50 km/hr speed limit. As Griffen described it, too many motorists do not treat it as a 50 zone. Traffic goes around 70 km/h or higher. Griffen said that Canal Road is not typical. It is straight, paved with some bends, and rural, so it is easier to get the speed up.
5PC Griffen said that when he got to Canal Road after the media scrum he had decided to enforce speed with a 30 km hour threshold. In other words, he would not stop motorists unless they were clocked at 80km/hr or higher. That was because of the sheer volume of traffic traveling so far above the posted limit.
6Just before 2pm that day PC Griffen had his laser speed measuring device in operation. He saw a white Mercedes going the posted limit. He clocked the car going 40 – 45 km per hour from about 100 – 150 meters away. Griffen observed that traffic behind the white car was starting to gain on it because it was traveling atypically slow. That drew PC Griffen to suspect that the driver was driving cautiously because it was either impaired or suspended. PC Griffen activated his emergency lights drove west bound and stopped the car about 50 meters to the west of his location. It was then 1:03pm.
7PC Griffen inputted the licence plate of the Mercedes into his police computer which had the effect of letting his dispatcher know that he had stopped a vehicle. The car was registered to a female but Griffen could see the driver to be male. Griffen walked up the driver, who was Mr. Alipourbati, and told him the reason for the stop, and that it was strange that he was going so slowly. Griffen testified to showing Mr. Alipourbati the laser device, which showed a speed locked in at 45 km hr. Griffen asked him if he had anything to drink or had done drugs and Mr. Alipourbati said that he hadn’t.
8Griffen testified that he could smell a strong floral and burnt odour of marijuana coming from the inside of the car. He could see what looked like flecks of marijuana spilled throughout the cabin. Pictures of the inside of the car were entered into evidence which showed what PC Griffen was looking at.
9He could see a pack of beer behind the passenger seat which was open. Two of the four cans in the carton were missing. With that he asked Mr. Alipourbati for his driver documents and was told that he had none. Mr. Alipourbati did have his Ontario Health Card which confirmed his identity at a minimum. Griffen then checked Mr. Alipourbati’s status through the CPIC and MTO system in his car and found that he was a suspended driver. He was also a novice G1 driver, and under 22 years of age and therefore required to have zero alcohol and drugs in his system. At that time PC Griffen had not yet identified the passenger.
10By this time PC Griffen had concerns about Mr. Alipourbati’s impairment so he returned to the Mercedes and at 1:15 made an oral fluid roadside demand, in other words a demand for a roadside drug screening device. PC Griffen did not have an oral fluid screening device with him and told Mr. Alipourbati that a second officer was on his way with the device. Griffen testified that the passenger was respectful and gave him his ID. The passenger and Mr. Alipourbati wanted to make phone calls. The passenger identified himself as Noel Bailey with a date of birth of February 6, 1978 but had no identification.
11PC Griffen then returned to his car again and checked on the passenger who was confirmed also to be a G2 driver, which meant that he was not qualified to accompany Mr. Alipourbati as a driver.
12Sgt. Phillips arrived at 1:19 pm and Griffen told him that the passenger was a G2 driver with novice conditions. Sgt. Phillips did an oral fluid test on Mr. Alipourbati which produced a fail. Griffen testified that a fail on the oral fluid test meant that the test subject had 25 nanograms of THC in his system and the legal limit was 5. The roadside oral fluid test told PC Griffen that Mr. Alipourbati was 5 times over the legal limit for THC.
13When Mr. Alipourbati failed the roadside drug test Phillips decided not to arrest him under the Criminal Code but to search the vehicle under the Cannabis Control Act and Liquor Licence Act for marijuana and liquor. That search started shortly after 1:35 pm.
14Mr. Alipourbati said that he did not consent to the search. At this point there was no pat down search of either Mr. Alipourbati or Mr. Bailey. Sgt. Phillips started searching the interior of the car, and within seconds yelled out “gun!”. According to Cst. Griffen, Phillips was holding a satchel between the passenger and driver seat. He had found a loaded handgun, which turned out to be a Smith and Wesson .357. With that Mr. Alipourbati said “Its mine, its mine”. Voluntariness of that utterance was admitted.
15Both Mr. Bailey and Mr. Alipourbati were arrested for possession of a loaded handgun. Cst. Griffen testified that he took Mr. Bailey and gave Rights to Counsel to him. Griffen gave evidence that the arrest scene turned out to be chaotic because another vehicle showed up on Canal road and parked right where Griffen and Phillips had Messrs. Alipourbati and Bailey under arrest. Mr. Alipourbati’s mother had arrived in her own car, as soon as she opened her car door a dog ran out and started running around the arrest scene. As PC Griffen described in his evidence, he and Sgt. Phillips eventually got the female and her dog back in the car and proceeded with the arrest of Messrs Bailey and Alipourbati, and then giving rights to counsel to Mr. Alipourbati.
16The White Mercedes ended up being left at the roadside. After Sgt. Phillips had completed his search of the interior the car it was towed back to the police station were a search warrant would be obtained to complete the search.
17In cross-examination PC Griffen said that he could see into the car as it got closer to him on the roadside. He said that when he trained the laser device on the Mercedes he pointed it at the licence plate area. The device doesn’t magnify what is in the viewfinder, and he was focussed on the grill and front bumper area of the white Mercedes. He testified that he decided to stop the Mercedes when he got the speed reading. He pointed the device and tracked the speed at 45 km/hr as a final reading. As the car drove by him he also drove away by turning left onto Canal Road in pursuit which the emergency lights activated. Griffen testified that as the car drove by he could see inside it that there were two male occupants. The passenger was a black male who had his hair in corn rows, and that Mr. Alipourbati was a light skinned male or molato.
18Griffen was asked about the legal basis for the stop, and he said both the Criminal Code and Highway Traffic Act R.S.O. 1990 c. H.8 (hereafter HTA). In his evidence there were many reasons for stopping the car, and said that unlicensed or impaired drivers tend to drive more cautiously. The basis of the demand for the oral fluid sample was an important issue at this trial. Was it because of Mr. Alipourbati’s status as a novice driver or because of the smell of marijuana? It is therefore worthwhile quoting from the cross-examination of PC Griffen.
Q. Right, but are – are you saying the reason you made the demand is because he was a novice driver, novice drivers are required to have zero nanograms of marijuana in their system. A. That was one of the many reasons... Q. Many. A. ...that I made the demand... Q. Okay. A. ...which we went over. Q. All right. Like from your standpoint is it – like if that was the issue alone, is that a reason to make an oral fluid demand? Is that a – is that a – is that grounds to make an oral fluid demand? A. I’d have to have some kind of suspicion. I wouldn’t just give any random driver. Q. Right, but if you – if it was a novice driver and you had a suspicion that they had – that that alone is grounds to make the oral fluid demand. A. Yeah, suspicion for presence of drug, much like presence of alcohol when you do a RIDE program. Uh, when people come through and if we have a suspicion of alcohol we make a demand for a roadside screening device for alcohol. At this time the drug roadside equipment was very new with the introductory of the new marijuana laws. We were one of the first police services really pushing the use of the equipment which Sgt. Phillips(ph) can speak more on.
19Griffen testified that when Sgt. Phillips came back to the Mercedes with Mr. Alipourbati to advise of the failed oral fluid test Griffen was standing at the front of the car on passenger side near Mr. Bailey. Phillips told him of the test result over the roof of the Mercedes. The gun was found, and both Messrs Bailey and Alipourbati arrested at 1:46.
20In re-examination Cst. Griffen was asked if he had seen who the occupants were when he made the decision to stop the Mercedes and said that he hadn’t.
Sgt. Phillips
21Sgt. Phillips evidence was consistent with Cst. Griffen’s. Sgt. Phllips is a supervisor within the traffic unit of South Simcoe Police. He described the problems that the police have had with Canal Road for a number of years. There was a traffic fatality, and since then traffic enforcement has been a priority for South Simcoe police. Apparently Canal Road is a short cut for people driving through the area to York Region. On June 27 he had arrested an impaired driver that day and was then on his way to Canal Road for enforcement. He said he arrived on scene at 1:20 pm. and met up with PC Griffen. PC Griffen described Sgt Phillips has having been radioed to attend the scene whereas Sgt Phillips said that he was on his way to meet up with Cst. Griffen to do traffic enforcement for the Big 4 concerns. In my finding nothing turns on that discrepancy. Accordingly, when he arrived on scene he found the White Mercedes stopped and Griffen asked him to do an oral fluid test on Mr. Alipourbati. He spoke with him and explained the oral fluid test. He said that the test involves a swab of oral fluid from the mouth, and that it takes up to 4 minutes to get a testable amount of fluid. At 1:30 he began analyzing Mr. Alipourbati’s fluid with the Drager 5000 device. Apparently the device uses a reagent to analyse the saliva sample. At 1:35 the analysis was complete and the device got a positive test result for THC in Mr. Alipourbati’s saliva. This meant that Mr. Alipourbati had 25 ng of THC in his system as compared to the legal limit of 5 ng. He told PC Griffen of this development.
22At that point the decision was made to search the Mercedes under the Cannabis Control Act which he described as similar to the Liquor Licence Act. Phillips saw an open box of Molson beer, with two cans outstanding. Phillips put the beer on the roof. He found a brown leather bag in the back seat. He described the contents as being consistent with a mom’s bag, and found nothing illicit inside. He then found a satchel on the armrest of the car between the passenger and driver seat. He opened it and immediately saw the butt of a pistol. In his evidence it had the weight of a fully functioning gun. He removed the gun from the satchel and saw that it had a magazine which was loaded with bullets. He racked the gun and made it safe. It turned out to be a Desert Eagle 357 semi automatic handgun.
23Sgt. Phillips testified that the seizure of the handgun caused him to immediately be concerned for safety. After safetying it he yelled out gun and put handcuffs on Mr. Alipourbati. At that moment Mr. Alipourbati’s mother arrived at the scene with a dog and one other person. That rendered the scene into confusion because there was another person on scene who knew Mr. Alipourbati as well as a dog. Phillips described the scene as then becoming emotionally charged.
24Once Mr. Alipourbati was in the back of the police car his mother began yelling at him though the glass. After several requests to get back in her car she did just that, and Sgt. Phillips read Mr. Alipourbati his rights to counsel. He was asked if he understood and Mr. Alipourbati said that he didn’t. Sgt. Phillips told him in plain language that he could call a lawyer or he could get a free one. Mr. Alipourbati again said that he didn’t understand but then said “I get it buddy where are we going”. He asked Sgt. Phillips if his mother could come along and Phillips agreed because of the possibility that his mother had a lawyer.
25Sgt. Phillips testified that after he took Mr. Alipourbati into custody he did a cursory search of the rest of the car, which took 5 – 10 minutes. He read Mr. Alipourbati his rights to counsel at 2:15pm.
26Sgt. Phillips transported Mr. Alipourbati to the police station and booked him in. He called Duty Counsel for Mr. Alipourbati.
27Cst. Griffen said that he left the scene with Mr. Bailey at 2:18.
28The defence called no evidence other than the affidavit of Robert Chartier on the Charter Application. The Crown did not seek to cross-examine Mr. Chartier. The Chartier affidavit sets out the disclosure request history for the lost items.
29Aside from the viva voce evidence and exhibits filed during testimony the Crown also filed two statements of Agreed Fact. The first was
As it relates to the retention of audio and video material for the South Simcoe Police Service they are retained for 1 year. The exceptions are breath videos, any witness statements or audio/visual material provided specifically for that case, or upon request. What is not captured with the exception are common area recordings and police communications.
30The second agreed fact was:
AGREED STATEMENT OF FACTS RE: CPIC SEARCHES
- 4233 refers to Constable Griffin
- 4702 refers to the terminal which was being used by dispatcher MacDonald referenced on the CAD report
- Nature of Queries
- Vehicle Query: CPIC check of the vehicle licence plate
- Person Search: Return whether currently on any charges; has any bail/probation/parole/ conditions and any “flags” (i.e. classified as violent, known to carry firearms, has any contagious disease)
- Criminal Name Index (CNI): CPIC query function based on name and date of birth. Used to match names against possible criminal records.
- The three pages of CPIC searches was first disclosed on February 17, 2022
31The Crown also filed in its Charter Application response a print out from the police computer terminal from the roadside stop of Mr. Alipourbati. That document begins at 13:03:48 on June 27, 2019 with an entry by RGriffen with “Field Event”, and continues to 19:48 that same day. It has brief summaries of the police communication throughout the investigation.
32Lastly, three pages of printout were filed which are titled “Persons Queries”. That document has only two entries, one each for Narges Gharamani at 1303 on June 27, 2019 and another for Noel Bailey at 13:19 that day. These print outs tend to confirm PC Griffen’s evidence that he queried the Mercedes when he stopped it at 1303 and learned that a female owned the car. It also tended to confirm that he queried the passenger Noel Bailey about 15 minutes after the stop.
33This trial was argued with the assistance of written submissions, and then oral submissions. After the end of oral argument the Supreme Court released its decision R. v. Tim 2022 SCC 12, and brief written submissions were received about what effect if any that decision should have on this case.
Issues
34Mr. Alipourbati alleges breaches across ss. 7, 8, 9, 10 (a) and (b) of the Charter. These fall under three headings. Was the stop the result of racial profiling; did Sgt. Phillips have a lawful basis to search the cabin of the Mercedes; was Mr. Alipourbati’s right to counsel violated by the delay in giving him the informational component under s. 10(b) and is the failure of the Crown to disclose the roadside communications and various specific entries of PC Griffen’s electronic queries at the roadside a failure to disclose relevant evidence under s. 7.
Lost Evidence – The S. 7 Claim
35In his written submissions Mr. Alipourbati alleged that three items of disclosure were lost:
1 Video Statement of Witness Ghahramani;
- Any video from the police station in respect to all accused, including but not limited to the booking in video;
3 Any police communications (audio/written)
36In oral submissions Mr. Fedorowicz abandoned the claim to #1. There were only two police witnesses at the trial and I am given to understand that Ms. Ghahramani was Mr. Alipourbati’s mother who arrived at the scene when he was arrested. Mr. Fedorowicz also abandoned a stay of proceedings as the sought remedy, and modified the remedy to be one of an adverse inference against the Crown.
37The argument before me alleged that the videos, radio communication and effectively key stroke movements of PC Griffen should all have been kept for disclosure.
38The materials filed on this Motion include the ICAD report which includes a 6 page printout titled “Dispatch from CAD Details”. It has a summary of the queries between PC Griffen and the various dispatch personnel from 13:03:48 until 19:48:57 the day of Mr. Alipourbati’s arrest. The additional material filed on the Application during the trial includes three pages with 4 lines of “persons queries” “Person Search”, and “CNI Name Index” at 1303, 1319 on June 27, 2019. The Agreed Statement of Facts explains the various titles and numbers.
39Other facts are relevant on the lost evidence application. The first is that South Simcoe Police have a one year retention policy for videos such as the one which would have recorded Mr. Alipourbati’s time at the police station. No explanation for that was given for that period. I also heard evidence that South Simcoe Police have a third party provider for management of electronic communications. Another fact was that Mr. Alipourbati did not request disclosure of the impugned disclosure until September 3, 2020, some 14 months after Mr. Alipourbati’s arrest on these charges.
40When disclosure is lost, the Court must assess the relevance or importance of the evidence, usually at the end of the trial so that its impact on trial fairness can be assessed in light of the trial issues, see R. v. Bero (2000), 137 O.A.C. 336 (C.A.) at par. 18. This is important to determine the degree of care expected, see R. v. Janeiro 2022 ONCA 118 at par. 108. As Paciocco JA said in Janeiro, “as the relevance decreases the degree of care is reduced” (supra).
41In law it is axiomatic that the Crown must disclose all relevant disclosure, See R. v. Stinchcombe, [1991] 3 S.C.R. 326. That is a constitutional right, which is impaired where there is a reasonable possibility that undisclosed information could have been used by the accused to meet the case against him, either by challenging the Crown case or by advancing his defence or by making a decision which could have affected the conduct of the defence, see R. v. Gubbins 2018 SCC 44 , [2018] 3 S.C.R. 35.
42In order to determine the claim of lost evidence or disclosure, the trial court must determine if the lost evidence was relevant and should have been preserved and whether the loss was due to unacceptable negligence, see R. v. Hassan 2014 ONSC 1345, per Code J.
43In this case the South Simcoe police erased the booking video, and radio communications one year after the event, which would have been in late June 2020. This was a matter of policy, rather than some particular or individual act of negligence. It matters not, because a police policy to erase and therefore destroy video and audio evidence stored on computer servers lacks any justification. There is no particular evidence in this case which guides me to find that the police should protect electronic evidence disclosure for any particular period of time. With that said, it has been established for several years that trials are expected to complete in the Ontario Court of Justice within 18 months, and in the Superior Court of Justice within 30 months, see R. v. Jordan 2016 SCC 27. A retention policy which routinely erases electronic evidence in less than that time is, in my finding unreasonable, because South Simcoe Police erase electronic evidence before the presumptive completion of a trial. It may be that other circumstances, and other limitations periods, exist to require a longer retention period but in my finding the Jordan presumptive periods are a minimum. I am therefore prepared to find that the South Simcoe police policy of routinely erasing audio and video recordings after 1 year is a policy of unacceptable negligence.
44I would not make the same finding about the key strokes used by PC Griffen at the roadside. There is no evidence that the granular electronic entries into his mobile computer system were even recorded. On the evidence before me I do not understand why they would be.
45I find that the lost disclosure of the station video had little if any relevance at this trial. It meets the legal test for disclosure per Stinchcombe (supra) at a minimum but the analysis does not stop there. This trial is about possession of a loaded gun, where the defence admitted the legal elements of the offences. I can find no connection between the video of Mr. Alipourbati at the station and the trial issues. The elements of the offence were made out long before he was booked into the station and there is nothing from which I could find that the investigation either inculpatorily or exculpatorily continued after he was booked in. In my finding anything which happened at the police station is unconnected with the trial on the merits or the Charter issues argued.
46I also find that the key claim at trial was Charter violations at the roadside. Notably the decision to stop Mr. Alipourbati was made at 1:03 pm, when there were three electronic recordings of searches: a Persons Querie of Narges Ghararamani; a Vehicle Query on Licence Plate CACC 409; as well as 8 lines from the CAD Details. There is no evidence of potential verbal discussions between PC Griffen and anyone else at that moment when he chose to stop the Mercedes. Furthermore, the ICAD report shows that between 13:08:03 and 13:48 the queries were being conducted by the dispatcher, not the roadside officers. That tends to confirm the evidence at trial, which was that when Sgt. Phillips arrived on scene at 1:20 until the seizure of the gun at 1:46 the dispatcher was doing the searches. As she records at 13:47:34 “Firearm recovered – 2 in custody, all in order requesting Ident”. That tends to confirm the evidence of both PC Griffen and Sgt. Phillips. I could not find that something else was going on at the roadside in that time period which was not recorded on the ICAD, and for which there was no evidence at trial. The suggestion that something else was going on by key stroke printouts from PC Griffen’s terminal is speculative.
47It is not speculative to suggest that PC Griffen had radio communication in the moments after 1:03 pm. That is fairly routine in my experience sitting on criminal trials and it may well have happened that day and any roadside communications at the roadside also meets the test for disclosure under Stinchcombe. The failure to disclose is mildly reduced in severity given that the defence delayed asking for the disclosure by 14 months. Mr. Alipourbati was not diligent in requesting the disclosure, but South Simcoe Police should have kept it for at least 18 months, if not until after completion of the trial.
48This limb of the Charter Application is a close case because the relevance of the evidence is so minimal at the trial, but on balance I am prepared to find that there is a s. 7 violation in failure to preserve and then disclose any roadside communication evidence. There is a failure to preserve and disclose the station video, but it had little if any relevance to the trial issues.
49Mr. Fedorowicz asks for an adverse inference against the Crown on the balance of the Charter Application seeking remedies under s. 24(2). I agree that the failure to preserve the lost evidence and therefore have it available for disclosure is very far from meeting the test of clearest of cases sufficient to warrant a stay of proceedings. In the result I find that a modest adverse inference against the Crown on the issue of the roadside detention because that is the only period where lost evidence would have been of real relevance to the issues at trial. I will incorporate that adverse inference into the analysis at the stage of assessing the racial profiling allegation.
Racial Profiling
50Mr. Alipourbati claims that PC Griffen did not stop his car because it was doing anything illegal, wrong, or was being operated in a way which gave PC Griffen any lawful basis to stop it. His claim is that he was arbitrarily detained because he is a racialized man, as was his passenger, and that the detention of the Mercedes was a violation of his right to be free from arbitrary detention under s. 9 of the Charter.
51In R. v. Sitladeen 2021 ONCA 303 the Court of Appeal ruled on the test to be met when the arrestee alleges that his or her detention was based on racial profiling. The Court split on the point. Miller JA in dissent began his judgement on a definition of racial profiling. I do not understand the majority to have disagreed with him on how he framed the issue:
(1) What is racial profiling?
77 Racial profiling is an injustice rooted in a failure of practical reasoning. The inquiry into whether racial profiling occurred is focused entirely on the chain of reasoning that led a police officer to investigate, detain, or arrest a particular suspect: R. v. Le 2019 SCC 34, 434 D.L.R. (4th) 631, at paras. 76–78. As this court explained in Peart v. Peel Regional Police Services Board 43 C.R. (6th) 175 (Ont. C.A.) at para. 90, leave to appeal refused, [2007] S.C.C.A. No. 10, racial profiling occurs where:
a police officer . . . uses race (consciously or subconsciously) as an indicator of potential unlawful conduct based not on any personalized suspicion, but on negative stereotyping that attributes propensity for unlawful conduct to individuals because of race . . .
78 Racial profiling is an act of decision-making — a reasoning process leading to a decision. It is not a general disposition or attitude. Racial profiling may result from conscious or unconscious bias that diverts a decision-maker from proper individualized reasoning: Peart, at para. 93. Accordingly, the inquiry into whether a police officer racially profiled someone is not resolved by determining whether that officer in general holds conscious or unconscious racist attitudes. It is possible for the reasoning of someone who is otherwise scrupulously and self-consciously egalitarian to be misshapen by unconscious bias in making a particular decision. The focus is on evaluating the particular "internal mental process" that led to the specific police action under investigation: Le, at para. 78.
79 If a police officer employs a negative racial stereotype as a premise in a chain of reasoning culminating in a decision to investigate, detain, or arrest someone, that faulty decision-making cannot be cured by the fact that there were other, legitimate grounds the officer could have relied on to come to the same conclusion: Peart, at para. 91. The focus is on how this particular officer actually reasoned on this particular occasion. It is therefore a factual question: Peart, at paras. 6, 104, 131. How an officer reasoned at the relevant time cannot, however, be impacted by things the officer did not know or believe, even if that information might have impermissibly influenced the officer's decision-making had it been known.
52In Sitladeen the trial judge had focussed his findings on whether the arresting officers had testified truthfully about the reasons for the traffic stop and ensuing arrest and not considered whether an unconscious racial bias played a role in the decision to stop or arrest the appellant. Limiting the analysis to credibility findings was an error of law, see Sitladeen at par. 59. As the majority found, when racial profiling is alleged the trial judge must go beyond credibility findings and “…also consider whether the circumstances that could correspond to racial profiling could support the inference that unconscious racial profiling played a role.” Sitladeen (supra) at par. 63. The majority in Sitladeen compels trial judges to consider factors beyond the credibility of police officers and weigh circumstances known at the time of the detention, such as whether the officer who made the decision to arrest knew the arrestee’s skin colour at the time of the decision making.
53Sitladeen (supra) is, to this trial judge, not an easy decision to apply. The majority of the Court asks trial judges to make findings of fact about Charter applications based on circumstantial evidence which contradicts testimony which is accepted to be truthful. It therefore permits a reasoning pathway which permits both acceptance of an officer’s testimony and then complete rejection of that very evidence. At first blush that seems counterintuitive. On reflection, however, I find that in law the majority of the Court of Appeal is merely requiring the circumstances of the arrest to play a part in the findings of fact. The officer’s testimonial integrity about the reasons for the stop are not determinative of the issue. This is because, as many courts have found, an officer will rarely if ever, admit to racial bias, see R. v. Brown (2003), 64 O.R. (3d) 161 at para. 44. Therefore the circumstances of the stop may well support an inference of racial profiling. As Morden JA said, in Brown,
45 The respondent submits that where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling. I accept that this is a way in which racial profiling could be proven.
54With that established I would find that PC Griffen pointed his laser speed measurement device at the licence plate and front bumper area of the White Mercedes. He testified, and I accept, that he could see into the car as it got closer to him on the highway. As the car drove past him on the highway he activated his light to initiate the stop and could then see that the Mercedes had a passenger beside the driver. The passenger was a black male and the driver light skinned or molato in appearance. I also accept his evidence that when he decided to make the traffic stop he had not seen who the occupants were and therefore did not know their appearance or racialized identity. I therefore accept PC Griffen’s testimony that from his perspective there was no racial profiling because he did not know enough about the occupants of the car when he decided to stop it.
55Mr. Fedorowicz argues that I should find that PC Griffen’s note taking was so deficient that I can make a finding of incredibility. I would not. Not everything is the subject of note taking and they need not be. In this case the key elements of the narrative from the roadside are either independently confirmed or not in contest. Showing Mr. Alipourbati the laser speed measurement read out, the licence status of Mr. Alipourbati, the observation of marijuana and beer in the interior of the car, the failure of the oral fluid screening test independently confirmed as well as seizure of the items in the car. At no point in the trial can I find that the note taking was deficient so as to call for any other findings.
56That does not end the matter, because the test for racial profiling is broader than that. The circumstances of the stop call are unusual insofar as Mr. Alipourbati was stopped because he was travelling below the speed limit, which as Mr. Fedorowicz argues, is not an offence under the HTA. The defence argument goes further, and says that if traffic safety were the real issue that day with Mr. Alipourbati he shouldn’t have been stopped because he was one of the few that actually obeyed the speed limit on Canal Road that day. That argument has some merit, but I do not accept it to the point where it establishes a Charter violation based on racial profiling. Both PC Griffen and Sgt. Phillips testified that Canal Road is a particular location for traffic enforcement because of ongoing concerns in the community. Those concerns brought them to that location for enforcement of traffic laws on all users of Canal Road, which was not unusual. Furthermore, that day was one where the police were particularly alert to a broad range of traffic safety concerns: speed, impaired drivers; seatbelts and dangerous driving. Speed enforcement was definitely one of the animating concerns for PC Griffen that day but speed was closely tied to impaired driving.
57PC Griffen’s evidence was that drivers travelling outside the speed of traffic flow are of concern because his experience is that such a driving pattern sometimes matches impaired drivers is valid. The HTA permits roadside stops for sobriety checks without any HTA violation, see HTA s. 48. There is therefore legislative force to the police power to stop drivers for investigation without an accompanying infraction. Beyond that the location and therefore circumstances of the speed trap make sense as a neutral investigation and interdiction site. Various police forces had publicly announced the traffic safety initiative that morning, and the Canal Road site was chosen because the community had complained to the police about that very stretch of road. PC Griffen’s location was determined by valid traffic safety concerns. Therefore his decision to train his laser speed measurement device on the white Mercedes was borne of the same valid and neutral traffic safety concerns. That speed measurement on the front licence plate and bumper area was similarly not based on racial profiling on the evidence before me.
58I recognize that it has unusual overtones to say, as PC Griffen did, that he pulled over a car which was doing nothing illegal. But in my finding there is more to it in the circumstances. Griffen’s evidence that a car going below the speed of traffic was something to be investigated makes sense. PC Griffen was at that location alert to potential impaired drivers. In my finding he had the lawful ability to draw on his many years in traffic enforcement to investigate not just obvious, palpable, infractions, but circumstances which may suggest an underlying infraction too.
59Adding in the circumstances of the stop, as well as a modest adverse inference from the destruction of the roadside radio communications arising from the previous lost disclosure finding, I would not find that they correspond to racial profiling. The s. 9 argument is therefore dismissed.
The Oral Fluid Demand
60Mr. Alipourbati claims that his Charter rights were violated because PC Griffen had no lawful basis to make the oral fluid demand. His claim is that s. 44.2 of the HTA requires novice drivers and young drivers to operate a motor vehicle but the HTA furnishes no stand alone authority to require a novice driver or driver under 22 years to give an oral fluid sample. The argument is that PC Griffen made a demand for oral fluid for purposes of compliance with the HTA, but there is no such lawful authority for such a seizure of breath.
61This argument is easily disposed of. PC Griffen made a demand under the Criminal Code for oral fluid. His evidence, as quoted above, is that he had a number of reasons for making the oral fluid demand, including the Criminal Code. His evidence was that he would not make an oral fluid demand without a reasonable suspicion. Reasonable grounds to suspect is the test for an oral fluid demand under s. 320.27 (1) (c). There is no dispute that the device used is an approved screening device. PC Griffen had a smell of marijuana when he first spoke with Mr. Alipourbati at the roadside and saw flakes of marijuana in the cabin of the car. Pictures of the interior of the car bear out that observation. With those two observations PC Griffen easily had reasonable grounds to suspect that Mr. Alipourbati had a drug in his body sufficient to meet the test in s. 320.27 (1)(c), and make an oral fluid demand. There is no need to determine the scope of the investigative power to enforce s. 44.2 of the HTA. There is no Charter violation in the oral fluid demand.
The S. 10(b) Claim – Delayed Informational Component
62Mr. Alipourbati was stopped in his car at 1:03pm. He was read a roadside oral fluid demand 12 minutes later at 1:15. The device arrived with Sgt. Phillips who was on scene 4 or 5 minutes later at 1:19 or 1:20 and had his saliva sample being tested at 1:30pm. The test returned a positive for THC at 1:35 pm. Failure of the oral fluid test did not result in Mr. Alipourbati getting arrested, but the test result gave the police the legal basis to do that. The oral fluid result easily furnished reasonable and probable grounds to arrest Mr. Alipourbati for an offence under s. 320.14(4), see SOR 2018/148. The oral fluid test detected 5 times the legal limit for THC in Mr. Alipourbati.
63The fact that the oral fluid demand was made 12 minutes after the stop of the Mercedes, that it arrived 4 minutes after the demand and that it was receiving the oral fluid 11 minutes after that leads me to find that Mr. Alipourbati was not entitled to his right to counsel up to that point, nor in the 5 minutes while the screening device was testing the sample. The demand was forthwith and the device was readily available. There was no delay at the roadside with the oral fluid portion of the investigation, see R. v. George, [2004] O.J. No. 3287, R. v. Orbanski; R. v. Elias 2005 SCC 37 , [2005] S.C.J. No. 37.
64Once Sgt. Phillips was in a position to arrest Mr. Alipourbati and he continued to be detained for purposes of searching the car under the Cannabis Control Act, S.O. 2017 C. 26 section 12 (hereafter CCA) and the Liquor Licence Act R.S.O. 1990 c. L. 19 ss. 44.1 and 47 (hereafter LLA) his jeopardy changed. At that point he was detained, subject to arrest, and having his car being searched under the authority of two different provincial warrantless search powers. He had been detained for 32 minutes. I find that all of that combines to the point where he should have been given his rights to counsel no later than 1:35. The brevity of the initial detention had ended by then, and he was under investigation for both provincial statutes and Criminal Code infractions. The failure to give Mr. Alipourbati his 10(b) rights at that time gave rise to a s. 10(b) violation.
65By the time of Mr. Alipourbati’s arrest at 1:46 he was entitled to be re-cautioned because the investigation had gone well beyond impaired operation of a motor vehicle and potential CCA and LLA violations. By 1:46 he was entitled to be given rights to counsel for the seizure of the handgun because that development significantly increased his jeopardy. It was no longer a detention for purposes of impaired operation of a conveyance and possibly provincial marijuana and alcohol possession offences. A gun had been found. The change in jeopardy, and change in the nature of the investigation gave Mr. Alipourbati an additional component to his right to counsel. There was a clear power imbalance insofar as the police had Mr. Alipourbati and his passenger detained at the roadside initially for THC screening, and then for a search of the car. That is precisely the situation where rights to counsel is needed, see R. v. Sinclair 2010 SCC 35, R. v. H.(T.G.) 2014 ONCA 460, R. v. Thompson 2020 ONCA 264, R. v. Rover 2018 ONCA 745 at par. 45.
66I also find that, if Mr. Alipourbati was entitled to his rights to counsel at 1:35, at the point of his arrest at 1:46 the ability of the police to give him his rights to counsel was significantly diminished by events beyond their control. At the time of arrest Mr. Alipourbati’s mother arrived with a passenger and a dog. She entered the arrest scene as did the dog. The roadside arrest scene was transformed from an arrest of two individuals to one where others were there and actively engaging with the police at a time when they had to effect the arrest and give rights to counsel. The failure to give rights to counsel at 1:46 therefore was caused in my finding, by the police having to control the now dynamic situation, place each accused in custody in a police car, prevent Mr. Alipourbati’s mother from interfering further and getting a dog off the side of the highway. I find that the Crown has satisfactorily explained the reason for the delay in giving the informational component from the period of 1:46 until the point where the situation was under control, which I find to be 2:00, see R. v. Taylor 2014 SCC 50 at par. 24. The police proceeded to do another search of the Mercedes before reading Mr. Alipourbati his rights to counsel. On balance, I would find that his rights to counsel should have been read at 2:00 pm, before the continuation of the search of the Mercedes, instead of after the search at 2:15. Sgt. Phillips prioritized a search of the Mercedes incident to arrest above reading rights to counsel, which violated the immediacy requirement in s. 10(b), see R. v. Rover (supra), R. v. Thompson (supra).
67The s. 10(b) violation therefore is established from 1:35 until 1:46, and from 2:00 to 2:15 – a total of 26 minutes.
68I find that there was no s. 10(a) violation. Mr. Alipourbati was advised of the reason for his detention at 1:03, given an oral fluid demand at 1:15 and told of the failed result at 1:35. He was told that his car would be searched pursuant to provincial statute and knew enough to say that he did not consent to the search. There is no s. 10(a) violation.
Was the Search of the Mercedes Lawfully Permitted?
69Mr. Fedorowicz argues that the search of the Mercedes did not conform with s. 12 of the CCA. I can easily deal with this argument. That provision permits a warrantless search of a vehicle if a police officer has reasonable grounds to believe that cannabis is being contained in the vehicle if it is not in its original unopened packaging or in fastened closed baggage.
70I have no difficulty in finding that the observed, documented flecks of leafy substance in the cabin of the Mercedes, combined with the odour of marijuana, and Mr. Alipourbati’s oral fluid test result easily gave Sgt. Phillips reasonable grounds to search the car under the authority of s. 12(3) of the CCA.
S. 24(2) of the Charter – Admissibility of the Evidence
71I have found a 26 minute delay in reading rights to counsel to Mr. Alipourbati at the roadside. His s. 10(b) rights were violated to that extent. Should the evidence be excluded?
72This analysis asks three questions: What is the seriousness of the breach; What was the effect of the breach on Mr. Alipourbati’s Charter protected interests; and lastly what is society’s interest in a trial on the merits, see R. v. Grant 2009 SCC 32.
73I would assess the seriousness of the breach as modest. I have no concerns that either PC Griffen or Sgt. Phillips were less than candid in their evidence. What tends to elevate this breach is that it has been established for some time that rights to counsel proceed immediately upon arrest, see Sinclair, Thompson & Rover (infra at par. 65). The police failure to recognize that the investigation had changed from a roadside screening situation to a search and continued detention is what makes this serious.
74With that said there is an important attenuating factor. Sgt. Phillips gave evidence that the roadside oral fluid regime was fairly new in late June 2019. Indeed, SOR/148, which fixed per se limits for blood cannabis concentrations while operating a conveyance had been in force for exactly one year before Mr. Alipourbati’s stop and oral fluid test. Enactment of the Blood Cannabis operation provisions of the Criminal Code had only come into force by Bill C-46 in June and December of 2018. I therefore accept Sgt. Phillips’ evidence that the novelty of the provision lead to some indecision on his part about whether to arrest under the Criminal Code or pursue provincial regulatory infractions. As I indicated during the trial, this is the first time I as a judge have ever heard evidence about an oral fluid screening test, and the constitutional validity of this legislation was only recently ruled on, see R. v. Robertson 2022 ONCJ 160.
75I would not count the lost evidence as part of the exclusion analysis, even if it was a breach of Mr. Alipourbati’s s. 7 rights. The remedy sought was an adverse inference against the Crown, which I factored into the determination of whether racial profiling existed.
76I therefore find that the seriousness of the s. 10(b) breach is serious but modestly so. If I am wrong that the s. 7 breach should be included in the s. 24(2) analysis I would gauge the seriousness of the breach as simply a serious one, but not extremely so.
77The first limb of the Grant test modestly pulls toward exclusion of evidence.
78The impact on Mr. Alipourbati’s Charter protected interest was modest. He asserted his right to speak to a lawyer and did so when he arrived at the station. A total delay of 26 minutes before being advised of the right to speak to a lawyer is modest, given the location. There is no evidence that Mr. Alipourbati wanted to speak to a lawyer at the roadside. He seeks exclusion of the gun. His utterance that “its mine” when the gun was found was not argued as a piece of evidence sought to be excluded, which is consistent with his position that the essential elements of the offence are made out. That is a reasonable concession in my view, based on the evidence heard at the trial.
79The affect on Mr. Alipourbati’s Charter protected interests is that for 26 minutes the power imbalance between himself and the police carried on without him understanding his rights. The strength of the impact on the Charter violation on him is in my finding tied to the length of the delay in reading rights to counsel, which was neither brief nor lengthy. The second part of the Grant test pulls very slightly toward exclusion.
80Society always has an interest in adjudication of criminal trials. In the third part of Grant, the question is by how much? This case involves the seizure of a loaded handgun which was in the possession of Mr. Alipourbati as he was driving a car apparently with an open container of beer in the car with flecks of marijuana in the cabin as well as an odour of marijuana. Under these circumstances, and given the prevalence of guns in community society has a very great interest in an adjudication of the trial on its merits. The third prong of Grant strongly pulls in favour of admission of the gun.
81Applying the test for exclusion of evidence under s. 24(2) involves a qualitative assessment, not a mathematical one. The Supreme Court of Canada recently reminded trial courts of this in R. v. Tim 2022 SCC 12:
98 The final step in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision (see Grant, at paras. 86 and 140; Harrison, at para. 36). Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and public confidence in, the administration of justice (see Grant, at para. 68). The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach "does not do further damage to the repute of the justice system" (Grant, at para. 69). The balancing is also societal: the goal is not to punish the police, but rather to address systemic concerns by analyzing "the broad impact of admission of the evidence on the long-term repute of the justice system" (Grant, at para. 70; see also Le, at para. 139).
82I would not exclude the handgun from the trial. Rather I have little difficulty in finding that exclusion of the gun would bring the administration of justice into disrepute. An experienced police officer was investigating a new offence but should have read rights to counsel earlier. The evidence was otherwise discoverable without the Charter violation. In the result the evidence of the handgun is admitted at this trial and Mr. Alipourbati is convicted of the offences.
Released: April 28, 2022 Signed: Justice D.S. Rose