O N T A R I O C O U R T OF J U S T I C E
COURT FILE NO. 21-1379
B E T W E E N:
His Majesty the King
-AND-
Sandra Street
Before Justice M. G. March
Heard on March 9 and 20, April 12, May 1 and 8, June 26 and August 9, 2023
Reasons for Decision on a Voir Dire regarding Alleged Breaches of the Accused’s Rights under Sections 9 and 10(a) of Canadian Charter of Rights and Freedoms (“the Charter”) and Seeking Exclusion of Evidence under Subsection 24(2) of the Charter, and Trial Judgment
Released on November 15, 2023
Mr. Richard Morris………………...…….……………………………………..Crown Counsel
Mr. Forest Poff-Smith…….…………………………….Counsel for the Accused, Ms. Street
INTRODUCTION
1Sandra Street (“Street”) stands charged with allegedly:
a) failing to stop for police,
b) driving dangerously,
c) assaulting two police officers, Csts. Eric Trottier (“Trottier”) and David Russell (“Russell”), and
d) unlawfully possessing methamphetamine and hydromorphone.
2The charges stem from a police investigation undertaken by Trottier and Russell during the early morning hours of November 11, 2021. The officers conducted a traffic stop while Street was operating her motor vehicle in a residential area of Pembroke. What transpired thereafter was anything but ordinary.
3Counsel for Street contended that her section 9 and 10(a) Charter rights were violated in consequence of her arbitrary detention, and the failure by police to tell her the reason for stopping her after she was seen leaving a known ‘drug house’. As a result of the alleged Charter breaches, Street sought the exclusion of all evidence obtained following the infringement or denial of her aforementioned constitutional rights.
4Crown counsel countered that the police had a legitimate reason for pulling Street over, namely, to check on her sobriety. She was being detained investigatively, and fled before police had an opportunity to act on their suspicion. Therefore, no Charter breaches ensued.
5At the outset of trial, both counsel agreed that the Charter application and trial evidence could be heard in a blended fashion.
THE RELEVANT EVIDENCE
Cst. Trottier:
6In December of 2017, Trottier became a member of the Ontario Provincial Police (“OPP”). While on general patrol duties on November 11, 2021, Trottier was partnered with Russell, who had only been a member of the OPP for roughly six weeks by that point. Trottier was acting as his coach officer.
7Both officers were assigned to an unmarked OPP vehicle, a Chevrolet Tahoe SUV (“the Tahoe”).
8Roughly around 1:30 am on the night in question, Trottier noticed a red Nissan Altima motor vehicle (“the Altima”) with heavily tinted windows idling in the driveway of 715 Mary St., Pembroke. Through previous personal experience, Trottier knew that this residence was possibly a “drug house” (i.e. a residence from which illegal drugs were sold).
9Trottier and Russell had stopped a person in the past, who left that house and who was later found to be in possession of fentanyl and crystal methamphetamine. It was also a location where police had previously recovered a stolen vehicle.
10Trottier explained that his interest in the idling vehicle was piqued as a result. Russell and he circled back to 715 Mary to see if the Altima would soon be mobile. In so doing, they saw it pass by them headed eastbound at the intersection of New and Mary Streets.
11The officers drove behind the Altima and began to make observations of the sobriety of its driver.
12Trottier opined that the Altima took an “exaggerated amount of time” when it came to rest at a stop sign at the intersection of Christie and Mary Streets. At the intersection of Moffat and Mary Streets, it did the same thing. Trottier estimated that the driver of the Altima waited eight to nine seconds at each of those stop signs before proceeding.
13Accordingly, Trottier subjectively formed grounds to pull the driver of the Altima over to check on his or her sobriety. His authority for doing so, he testified, was s. 48 of the Highway Traffic Act (the “HTA”).
14At the moment of deciding to conduct the traffic stop, Trottier instructed Russell to input the plate number for the Altima into the Mobile Data System (“MDT”) maintained by the OPP.
15Trottier recalled that the temperature outside was “fairly cold” on the night in question. Notwithstanding, the driver of the Altima rolled down both the driver and front passenger windows of the vehicle after being pulled over. Trottier added this furthered his suspicion that the driver may have been using illegal drugs during or shortly before the traffic stop.
16Trottier went on to say that when a motorist is pulled over by the OPP, typically the Communication Centre is notified as well as other police units in the area via radio for safety reasons. Officers are encouraged to request backup.
17After placing the Tahoe in park, Trottier told Russell to approach the driver’s side of the Altima. As soon as Russell did, Trottier recalled that he was berated by its driver.
18Russell tried to defuse the situation. He attempted to reintroduce himself, provide his badge number and explain the reasons for the stop. However, the driver continued to be aggressive.
19Trottier attended at the front passenger side of the Altima and ducked his head inside to see who was driving.
20He observed a female driver, later identified as Street, with long curly hair and dark skin. He also noticed a green bottle which he understood to be a “bong”, and which, through experience, he knew to be drug paraphernalia.
21He drew the female driver’s attention to the bong asking her, “What’s that for?”.
22Street then became “fidgety”. She had been complaining about having been stopped multiple times in the recent past by police. She was not from the Pembroke area. She began videotaping what was occurring. Trottier afforded her the opportunity to do so.
23He introduced himself and provided his badge number. He asked her to point the camera downward to capture the bong. In Trottier’s view, Street did not want to do that.
24He opined that she was trying to destroy the evidence with her right hand feeling around for the bottle. It looked to him as though she were trying to lift off the foil or elastic band on the top of the bong. All the while, she was yelling at the officers.
25Trottier estimated that the interaction between Street and police lasted a couple of minutes. He then told her she was under arrest for being in possession of a “scheduled substance”.
26He reached in to grab the bong. He hit the unlock button for the passenger door to the Altima. He placed the bong on the floor of the passenger side.
27He testified that his grounds for arresting Street were as follows:
a) the place she came from (i.e. the known drug house),
b) his experience in dealing with the Pembroke drug subculture, and
c) his observation of the bong.
28Trottier recalled that Street’s reaction to being told she was under arrest was to attempt to roll up the passenger side window of her Altima. Consequently, he told her to get out of the vehicle.
29Russell opened the Altima’s driver side door. Street did not comply with Trottier’s demand. She continued to argue with the officers.
30Street grasped the steering wheel tightly. Her eyes were darting around.
31Trottier engaged the E-brake and pushed the on-off button for the vehicle beside the steering wheel to kill the engine.
32Street then began smashing on her steering wheel causing the horn to honk, and she yelled for help. It appeared to Trottier that Russell was unable to remove Street from the Altima.
33Trottier requested a second unit attend the scene of the traffic stop at 01:36. He went to the driver’s side to assist Russell in attempting to remove Street from the vehicle. However, he could see that Street was tangled up in her seatbelt.
34Trottier reached inside the Altima through the driver’s door trying to dislodge the seatbelt. As his body was inside, Street managed to free one of her hands, and restarted her vehicle.
35Trottier explained that Russell and he were then trapped inside her vehicle. As Street began to drive away, she mounted a curb leaving skid marks. Trottier noticed also that the Altima’s driver side back wheel was not turning.
36Russell was ejected from the vehicle as it proceeded away. Eventually, Trottier was able to push himself away from the vehicle to escape being dragged by it. He estimated that he landed some 50 to 100 feet from where the initial traffic stop occurred.
37Trottier directed Russell back to the police vehicle, and they notified the OPP Communications Centre in Smith Falls where the Altima was headed, and what it was doing before commencing their pursuit.
38At 01:41, the OPP Sergeant posted at the Communication Centre ordered Trottier and Russell to discontinue their pursuit.
39Trottier had a torn pant leg and an abrasion on his right knee. It was bleeding. He also experienced tenderness along the left side of his torso. He considered his injuries to be minor. They healed entirely within a month. Likewise, he noticed that Russell had suffered some abrasions as well.
40Trottier was very candid in his evidence that he wanted to catch Street after she fled the scene. After a brief but very futile foot chase, Trottier and Russell returned to the Tahoe to pursue the Altima.
41Trottier noticed that Street made a left turn onto Herbert St. The officers then activated their emergency lights and siren. Trottier next saw Street make a left turn onto Rosewood and eventually headed east on Pembroke St. East.
42The officers were able to get close enough to the Altima to attempt a “rolling block” to force Street to stop her vehicle. Trottier described this as more of an “intimidation type manoeuvre”.
43Trottier went on to explain that it was ineffective. Street simply applied the brakes of her Altima and went around the Tahoe. She then changed the direction in which she was headed. She proceeded westbound toward downtown Pembroke.
44Shortly thereafter, the pursuit was called off by the Sergeant at the OPP Communication Centre.
45Eventually, Street was stopped by other officers near the intersection of Highway 17 and Doran Road through the successful deployment of a spike belt. Russell and Trottier attended the scene to confirm that their fellow officers had the correct motor vehicle and Street under detention once again. Upon so doing, Russell arrested Street.
46While there, Trottier saw one of his fellow officers performing a Standard Field Sobriety Test upon Street.
47Trottier testified that he quickly glanced inside her Altima and saw the green bottle/bong still on the passenger side floor of the vehicle. Street’s purse was upside down on the passenger seat.
48Trottier and Russell also returned to where they had initially stopped Street in her Altima. They found parts of their “missing kit”. Trottier recovered a spare set of keys for the Tahoe, a sock, and his OPP ballcap, which he had been wearing when he attempted to arrest Street. He noticed it had been run over.
49Trottier and Russell walked along William St. between Albert and Herbert as well to see if they could locate any surveillance cameras mounted on private residences, but to no avail.
50Using a police issued cell phone, the officers took photographs of the scene.
51Trottier did not believe that he had any interaction with Street after his pursuit of her vehicle was called off.
52He did not make any police notes or reports of the incident involving Street until the next morning.
53Under cross-examination, Trottier confirmed that he was on general patrol on the night in question and coaching Russell. The subjects upon which Trottier would provide instruction included police powers of arrest, detention and search, and how to exercise them in the field.
54Trottier agreed that there were things he could have done differently in dealing with Street. He reckoned he ought not to have brought her attention to the bong he observed. He could see she was already in an agitated state.
55He regretted that he had not requested a second police unit sooner to block her Altima in the front and at the rear to prevent escape.
56He felt that it was clear she knew why she was pulled over by police, but there was little “soak in time”. There was no discussion he had with her as to the reason for the stop.
57He acknowledged that he ought to have made his notes in a more fulsome, contemporaneous way regarding the incident. However, the situation was quite “dynamic” and “intense”.
58He took his duty book home to write his notes, because he was in no frame of mind to attend to the task during the early morning hours of November 11, 2021. He had just been through a high-energy interaction with Street. He wanted to let his “brain relax”. He thought it best to fully digest what had occurred and to write the notes later. Any entries in his notebook after 1:32 AM would have been written by him much later the same day.
59He acknowledged that his Will Say, which he prepared in February 2023, was the product of his recollection made two years after the events that had occurred. He explained that an “8895” was a police record of information gathered during a traffic stop.
60Nevertheless, he authored his General Occurrence Report at 2:38 AM on November 11, 2021, the night of the incident.
61Trottier clarified that the Tahoe to which Russell and he were assigned was not equipped with a dashcam. He could not recall whether he was driving, or Russell, prior to the traffic stop. However, Trottier was certain that he was driving during the pursuit of Street’s vehicle.
62Trottier confirmed that 715 Mary was a place of interest for him. He was paying attention to anyone leaving from there.
63On October 14, 2021, Trottier and Russell pursued a vehicle which left 715 Mary and later found a quantity of drugs in it following the arrest of the driver. Trottier also testified that on November 1, 2021, a suspected impaired driver had left 715 Mary. When that individual was stopped, a cannabis smell emanated from the vehicle.
64Trottier denied that he was aware at the time that 715 Mary was the target of an ongoing investigation undertaken by the Upper Ottawa Valley OPP Street Crime Unit.
65He added that he did not know whether the Altima, left idling in the driveway, would leave or not.
66Trottier agreed that when Russell and he began following the Altima, the only suspicious element which existed in his mind was the fact it was coming from a known drug house, 715 Mary.
67The Altima’s windows were heavily tinted. Trottier could not see inside to determine how many occupants were in it.
68Trottier added that he wished to follow it to pay attention to its movements. Other than the two occasions at stop signs where the Altima’s operator took an “extreme” amount of time before proceeding, there was nothing else suspicious he noticed about Street’s driving. He nevertheless insisted that his impaired driving investigation arose out of the long pauses taken by the Altima at the stop signs.
69Trottier was adamant that he did not run an MDT check on the Altima using his onboard computer in the Tahoe until after Street was pulled over. He explained that he did not want Russell’s or his eyes down looking at a screen. Trottier was more interested in making observations of her driving.
70Trottier explained that his suspicion crystallized at the time he decided to conduct a traffic stop. At that point, he used the MDT to notify the Communication Centre of his intention. Hitting the “Traffic Stop” button on the MDT initiates the notification process.
71The MDT then supplies information back to the officers regarding the vehicle in question, in this case, Street’s Altima. Trottier asked Russell where the registered owner was from.
72Trottier maintained that his authority for stopping Street was s. 48 of the HTA. He wrote “253”, the former impaired driving section number of the Code, in his duty book notes to signify the reason for pulling Street over.
73Trottier was certain that Street rolled down both the driver and passenger side windows of her Altima after it came to rest.
74Trottier then lagged behind his partner, Russell, who approached the driver side of the Altima. As Russell was introducing himself, Street was interrupting and telling him it was “harassment”. She believed that the reason for the police stop was racially motivated. She felt she was being targeted.
75Trottier testified that he had no recollection of ever pulling Street over on an earlier occasion, specifically November 1, 2022. He did not recognize her. He allowed for the possibility that she could have been a rear seat passenger of another vehicle he pulled over on a prior occasion, but she was not its driver.
76He confirmed that he was quickly able to see Street was a black woman when he leaned in to observe the motorist with whom Russell was engaged. Trottier reiterated that Street was nervous, fidgeting and her voice was high-pitched.
77Trottier explained that he allowed Street to use her cell phone to record her interaction with police to “de-escalate” the situation. Normally, he explained, police officers would want to see the hands of the motorist with whom they are interacting. It was clear to him however, that Street was using her cell phone simply to make a video recording. He reckoned that if doing so calmed her, so much the better.
78He ventured that he probably surprised her when he popped his head into the Altima from the passenger side. He detected no odour of alcohol emanating from the vehicle. However, he did almost immediately observe the bong under the centre console.
79When Street knew that he had seen the bong, she began trying to destroy what he believed to be evidence (i.e. the controlled drug), whereupon Trottier testified he formed grounds to arrest her for an offence contrary to section 4(1) of the CDSA.
80He unlocked and opened the passenger side door, reached in and placed the bong on the passenger side floor of the Altima. Street had begun to roll up the front passenger window while Trottier’s arm was still inside the vehicle.
81He added that his “Spidey senses” led him to engage the E-brake of the Altima as well. He also undid Street’s seatbelt. He directed Russell to take Street out of her vehicle and to arrest her.
82All the while, Trottier testified that Street was actively resisting the police officers’ demands to have her exit her vehicle. She began banging on her steering wheel, screaming for help and honking her horn.
83Trottier moved to the driver side to assist Russell in getting Street out of the car. As he was attempting to untangle her seatbelt, she freed one of her arms, pushed the start button of her vehicle and drove away.
84As she began to flee, she swerved to the right over the curb and almost hit a tree. Trottier conceded that he did not know the tree was there until Russell and he returned to the scene afterwards, and they could see the skid marks on the grass.
85Trottier was able to push himself away from her vehicle and fall onto his back. After a very brief foot chase, he returned to the Tahoe and took up pursuit of the Altima. His intention was to “keep the public safe”. He radioed to the Communications Centre to let everyone know what was happening. He wanted his colleagues to be safe as well.
86He explained that the Centre would want to know the reason for the pursuit. He testified that he told the Centre that he wished to arrest Street for obstructing police and possession of a controlled drug. He clarified that his impaired driving suspicion transformed into reasonable grounds for believing a CDSA possession offence had been committed.
87He acknowledged that he did not indicate to the Centre that he believed Street was operating her motor vehicle while impaired by drug.
88He added that he simply did not know if her ability to operate a motor vehicle was impaired. If events had played out as they should, he may have let her go. The reason for the traffic stop was his suspicion that she may have been driving while impaired. He ended his pursuit of the Altima because of what he observed of Street’s driving behaviour.
89Trottier denied that his decision to make duty book notes the day following the incident in question instead of contemporaneously with the events as they occurred was to enable him to formulate grounds for the traffic stop. He did not research section 48 of the HTA afterwards as the statutory basis for pulling Street over. Nor was it an opportunity to tell Russell what to put in his duty book notes. In short, it was not his opportunity to “clean things up”.
Cst. Russell:
90When Russell testified on April 12, 2023, he had been a constable with the OPP for almost 2 years. He recalled that he was on duty on November 10 going into November 11 of 2021. He was partnered with his then coach officer, Trottier. By that point, he had roughly 6 weeks of experience as a police officer.
91Russell indicated that he made notes about the evening in question. It was possible that he also wrote portions of the General Occurrence Report attributed to Trottier.
92Russell recalled that he did have an Approved Screening Device assigned to him on November 10, 2021. He tested it and it was in proper working order.
93He testified that Trottier and he were assigned to OPP Zone 4, the City of Pembroke. They were to conduct general patrol duties while utilizing the Tahoe as their police vehicle. The Tahoe was unmarked. It was “not unusual” for them to take the Tahoe, but it was not the type of police vehicle normally assigned to them.
94Russell recalled that the incident involving Street started with Trottier’s and his patrol of the area around 715 Mary. When they followed the Altima, he was “made aware” of the Altima staying longer at stop signs. Trottier pointed it out. Once Russell was alerted to the fact, he noticed it himself. In comparison to the usual one to two seconds a motorist would take, Russell noticed Street took roughly five seconds or so at one of the stop signs. He confirmed he did not time the duration of her pauses.
95Russell was not certain whether Street realized that there was a police vehicle behind her.
96At 01:32 on November 11, 2021, Trottier and he initiated the traffic stop of the Altima. By this point, they had followed Street from 715 Mary past MacKay where Mary’s name changes to Alfred. Once the Tahoe’s police lights were activated to indicate to Street to pull her vehicle over, she turned right onto William.
97Russell explained that Trottier and he were discussing that the driver of the Altima must be impaired by something. It was Trottier’s decision to investigate Street’s driving abilities. Russell understood it to be “an impaired check”.
98Russell added that the police authority to stop a motorist and to check on his or her sobriety lies in section 48(1) of the HTA. Further, sections 320.27 and 320.28 of the Code set out the bases for which a police officer may make a demand to test for impairment by drug or alcohol.
99Typically, Russell would have wanted to introduce himself, explain the reasons why the motorist was stopped and ask for the driver’s licence, proof of insurance and ownership for the vehicle.
100In this case, Russell was not even able to introduce himself. As he was making his way to the driver’s side window of the Altima, he heard Street yelling obscenities and calling the officers’ decision to stop her “harassment”. She claimed it had happened multiple times in the recent past because she is black.
101Russell pointed out that he is a black man, and she ought to have been able to see this fact for herself as he approached.
102He testified that he had never met Street in his life prior to this incident. She was using the ‘F’ word to express her frustration with him.
103He moved forward from the B pillar, where he was trained to stand to force a motorist to take a greater left turn with his or her head to see him. He explained that he moved forward and away from this position of safety to have a better view of Street, who was fidgeting with her hands.
104He shone his flashlight inside her vehicle to look at what she was doing. He wanted to see her hands. He was able to make out that she had no weapon. By this point, Trottier had taken up a position across from him at the front passenger window of the Altima.
105Trottier then commented on his observation of drug paraphernalia in the centre console of the Altima.
106Street began filming her interaction with police. Trottier asked her, “Why don’t you film what you have there?”, while pointing to a “makeshift bong” with tinfoil at the top of it.
107Street’s filming went on for what Russell estimated to be a period of one to two minutes. Russell did not know what ultimately happened to her phone and its recorded interaction of what was occurring.
108Russell was then able to explain to Street that it was “an impaired stop”. She continued to berate him. He was shocked that she called him “a racist”.
109Russell understood that once Trottier and he saw the bong, they had grounds for an arrest under Schedule I of the CDSA.
110Russell asked her to get out of her vehicle to arrest her. She ignored his demand. He then opened the door and grabbed her by the arm telling her, “Get out of the vehicle”.
111As he tried to gain control of her, she was not listening, nor moving, nor attempting to exit. He then became more forceful with her. She pulled back away from him. Her seat belt became entangled in her person.
112Russell candidly admitted that he did not know if he even told her she was under arrest, but he believed that Trottier did.
113Street continued to resist the officers. Trottier pressed the button to turn her vehicle off. She later managed to turn it back on. This series of events played out 2 or 3 times. Eventually, he saw Trottier pull the E-brake.
114Russell explained that he was in the vehicle at that point in time with the driver’s door of the Altima open trying to get Street out.
115He clarified that he had to effect an arrest. He was fearful that she wanted to drive away. In his view, she was breaking multiple laws and posing a danger to herself and others. The intensity level was high. He was concerned for Trottier’s and his own safety, since they both had their torsos wedged in her vehicle. In spite of their efforts, they could not remove Street from the Altima.
116Russell recalled that Street was yelling for help. He candidly admitted that he felt empathy for her when she did. He lessened the level of force he was using in trying to remove her from her vehicle. For that reason, he reckoned, she was able to press the start button and make her escape.
117He felt himself and his partner, who were both sandwiched in the Altima’s driver door side-by-side, being pulled along with the force of the vehicle now in motion. It went up over the curb and almost hit a tree. He fell to the ground, he saw his coach officer, Trottier, being dragged down the street and later falling to the ground.
118Russell estimated that Trottier fell some 30 to 50 feet from where the traffic stop had been initiated.
119The officers returned to the Tahoe and chased after the Altima. Street drove her vehicle “erratically”. In Russell’s view, she was not paying attention to any rules of the road. There was a near collision with another vehicle when she went through a stop sign. Then on Pembroke St. East near the McDonald’s restaurant, she did a U-turn to avoid being boxed in by the Tahoe.
120Eventually, their pursuit was called off by the OPP Communications Centre at 01:41 of November 11, 2021.
121Russell and Trottier attended the scene of where Street was ultimately stopped by other officers through the deployment of a spike belt. Constable Romano was brought in to conduct a Standard Field Sobriety Test upon Street.
122Russell looked in her Altima and saw a white powdery substance spread all over it. Her purse was open on the front passenger seat. The tires of the vehicle were deflated, and all its windows were open including the sunroof.
123Russell noticed that Street was already in the back of another police cruiser in handcuffs when Trottier and he attended the scene. Russell arrested her and gave her rights to counsel. He was certain that he told her she was being arrested for flight from police and possession of a controlled substance, but he conceded that he did not make a note of doing so.
124He later emphasized that this is what he told duty counsel, whom he contacted on behalf of Street at her request, at 03:08 on November 11, 2021, while at the police detachment. At 03:11, she was given an opportunity to speak to duty counsel.
125After her conversation with duty counsel, Russell and Trottier conducted a search of the Altima after it had been towed to the station. They located what they believed to be crystal methamphetamine in her purse, an American bill with what they believed was drug residue on it, and a prescription pill bottle. Those items were placed in an evidence bag, as Russell believed them to be of value to the investigation.
126Neither officer sustained any injury which required a trip to the hospital. Trottier’s pants were ripped. They lost some of their police “kit” from being dragged. Later, when they re-attended the scene, they recovered what they had lost including keys to the Tahoe and a sock, which Russell assumed belonged to Street.
127Russell took photographs of the scene where the traffic stop and subsequent flight occurred. Russell accepted that it was “100% my mistake” for why the photographs had not been turned over to the Crown to be disclosed to the defence in a timely manner.
128He stated that he had “minimal memories” of what was recovered from the car following the search.
129Under cross-examination, Russell likened himself to a “sponge” trying to keenly observe and learn from his field experience as a police officer. Yet, unlike Trottier, he did not remember circling around in the Tahoe to see if the idling Altima at 715 Mary would leave. Nor did he recall Trottier telling him that is what he intended to investigate.
130Russell simply recollected watching the operator of the Altima for signs of impairment while on general patrol. Once Street’s long pauses at stop signs were drawn to his attention by Trottier, Russell also noticed it.
131From the moment Street was pulled over, Russell was struck at how aggressive she was. She insisted that she was stopped because she is black and that he was a “racist”. He told her he did not know who she was.
132He clarified that all he saw once Trottier drew Street’s attention to it was a green water bottle with tinfoil over its spout. There was no “rock” on top of the tinfoil.
133Russell did not remember Trottier telling him that the reason for arresting Street was the presence of the bong. Nevertheless, Russell told her to step out of the Altima. However, Russell was clear. He did not immediately tell her why.
134When Street resisted the officers’ demand to get out of her vehicle, she began yelling, “Help me!”. She let out bloodcurdling screams and hammered on her horn. By this point, Trottier was at her driver’s side door assisting Russell with removing her from the Altima.
135Under re-examination, Russell confirmed that Street was agitated and convinced that she had been stopped for a racial reason. She remained so for the entire interaction with Trottier and him.
Agreed Statement of Facts (No. 1):
136On consent, the Crown and defence counsel filed an Agreed Statement of Facts (“ASF”) as Exhibit 1 at the trial.
137The ASF described police observations following the point at which Trottier’s pursuit of Street’s Altima was called off by the Staff Sgt. at the OPP Communications Centre.
138Trottier saw Street make a left-hand turn off Pembroke St. West and on to Trafalgar Road. Constable MacInnis positioned his cruiser blocking all of Trafalgar Road in an attempt to slow the Altima down. Street was able to dodge MacInnis’ cruiser and continue southbound on Trafalgar.
139McInnis strategically then followed the Altima while not in pursuit, but rather to provide to the Communications Centre updates on the speed at which the vehicle was travelling and its manner of driving.
140Other police cruisers in the area began setting up alternative means to stop the Altima. Sgt. Howat attended the intersection of Forest Lea Road and Highway 17 with a spike belt. McInnis radioed that the vehicle made a right-hand turn on Highway 17 travelling toward Howat’s location.
141Howat successfully deployed a spike belt rendering the two front tires of the Altima flat.
142Three OPP cruisers then followed the Altima until it slowed down under its own power. The officers in their vehicles conducted a “rolling block”, during which Street made one attempt to evade police.
143The police pursuit of the Altima ended just west of Doran Road on Highway 17.
144At the close of the Crown’s case, Crown counsel invited the Court to dismiss the CDSA charges which Street was facing due to a “continuity problem”.
Agreed Statement of Facts (No. 2):
145On consent, Crown counsel and defence counsel filed a second ASF as Exhibit No. 3 at the trial. It chronicled a traffic stop conducted by Constables Downing and Holland of the OPP at a Tim Horton’s parking lot in downtown Pembroke. No date was provided for the incident.
146The officers’ stated authority for the stop was sections 48(1) and 216 of the HTA.
147Downing and Holland pulled Street over for driving 30 kms/hr. in a 50 km/hr. zone. Her vehicle, a red Nissan sedan, had also crossed over the centre line of the highway several times.
148The officers explained the reasons for her detention to Street. She told the officers that she believed she had been stopped because she is black.
149The officers replied that race had no bearing as to why the traffic stop was initiated. In fact, they had no idea who was driving or what she looked like.
150No ticket was issued to Street on this occasion.
Sandra Street:
151When Street testified on May 1, 2023, she indicated that she has been diagnosed in the past with posttraumatic stress disorder (“PTSD”), generalized anxiety disorder (“GAD”) and attention deficit disorder (“ADD”).
152She remembered having a good upbringing in a rural setting near Kingston. Her father was a black man from Nova Scotia. Her mother was white. She often forgot about the fact she is black, but for occasions when it was pointed out to her.
153Street went on to recount several traumatic experiences. In 2002 roughly, she was the victim of a home invasion and robbery. The intruder pulled a gun on her. He brutally beat her over the course of three hours. All the while she was held hostage.
154She ended up with a concussion. Her body was all bloodied. She spoke to police following the incident but did not wish to provide a formal statement. She was fearful of retaliation from the intruder.
155On another occasion, while living at a shelter for abused women, she was accused of throwing a beer. She was arrested and placed in the back of the cruiser. She explained that it was “made up nonsense” by the police. She ended up filing a complaint with the Napanee Police Service.
156She explained that as a motorist, she has been pulled over for years for “ridiculous things”. Consequently, she learned to pause for long periods of time at stop signs.
157One August in 2011 or 2012, a week before Labour Day, she was visiting with a friend who lived in an apartment building. Upon leaving, she noticed a police car parked nearby. She travelled approximately ten blocks before two young officers pulled her over. When they exited the cruiser, they arrested her for possession of narcotics. They pulled her out of her vehicle, handcuffed her, placed her hands on the roof of the cruiser, searched her and zip tied her ankles.
158Later, they caused her to fall and dragged her across pavement while telling her to “Stop resisting!”.
159She ended up in a hospital where her mother works. She testified that no drugs were found on her person or in her car. She was held in custody an entire weekend at the Quinte Detention Centre. She suffered two black eyes. Her face was bruised. There were abrasions on her shoulder.
160Six months later, she stated, she was a mess mentally. She was self-medicating with the use of illicit drugs.
161On another occasion, she was surrounded by police while driving from Kingston to Napanee. The officers drew their guns on her. She was arrested and her arm was broken while she was being handcuffed. She was taken to the Brockville Hospital.
162The Special Investigative Unit conducted a review of what happened to her at the hands of members of the OPP. Her hospital records to substantiate her injuries, she lamented, were somehow lost.
163She explained that as a result of her experiences with police, she is now paranoid. Her PTSD is crippling. Her GAD causes her heart to pound.
164Street went on to explain that a week before the incidents giving rise to her charges, she was on her way toward downtown Pembroke in her Altima when she was pulled over for driving too slow by a white officer and a black officer. She believed the officers were Trottier and Russell.
165Later, on November 10, 2021, she was in Pembroke to visit her ex-boyfriend. They were going to spend some time together at a hotel. While he had been incarcerated in a federal penitentiary in 2018 to 2019, he belonged to an indigenous group. There he met the person who lived at 715 Mary.
166In attempting to locate her ex-boyfriend, Street went to 715 Mary. After spending some time there, she walked out of the house and saw the headlights of a nearby vehicle. As she drove away, she noticed in her rearview mirror that the vehicle was following her.
167Given the time of night, roughly 01:00 on November 11, 2021, Street thought in her mind it was probably a police vehicle. She clarified that she is “hyper aware”, and anxious around police. She was cautious with her driving so as not to be pulled over.
168Once she saw that the police wanted her to pull over, she did so immediately, turning right off Alfred on to William. The officers exited their cruiser. She rolled down the driver’s window of her two door Altima.
169She was not certain whether Russell even asked for her license and insurance, as he approached her vehicle. Trottier attended at the driver’s side of the Altima. She explained that she tries to videotape her interactions with police. She does this “a lot”.
170During the course of her interaction with the officers, Trottier asked her, “Can you video this?”.
171Street recalled screaming for help. She testified that it was exactly like what happened before to her in Napanee. Since that time, she was aware that many people had been killed by police. These officers were trying to get her out of her car. She did not know why. She was thinking they were going to hurt her. She was scared.
172She emphasized that two men were trying to pull her out of her car. She heard Trottier say, “She’s gonna take off!”. She considered escape to be a way to save her life.
173She had no recollection of both officers being on the driver’s side of the vehicle. However, she remembered a cycle of the car being turned off and then on again.
174She hoped by sounding her horn, she would get the attention of people in houses nearby. She was terrified. She did not understand why the officers wanted her out of her car.
175She was not comforted by the fact that Russell is black like her. She did not feel safe. She was trying to get away. She was adamant that she did not want to hurt anybody.
176It all happened so fast, she stated. When she hit the gas, it was for self-preservation. She put on her four-way indicators as she drove away. She thought that her E-brake came off.
177She believed that there was no justification for her being pulled over “again and again and again” by police.
178She was having an asthma attack. She has one-seventh the lung capacity of an average person. She wanted to get away because she felt threatened. She was thinking she would attend at a police station, but it was the police that were chasing her. She wanted to get to a brightly lit area. As she put it, “I don’t know what I was thinking.”
179Later, she thought, “I’m in big trouble. You can’t do that. What do I do now?”.
180Never did she believe she would be trying to get away from police. She was trying to figure it out. She knew that Trottier and Russell were police officers.
181As she drove away, she was not driving over the speed limit. Eventually, Trottier and Russell stopped following her. She drove along the highway and passed a car. She was aware that police must have put a spike belt down. She ran over it. Her tires went flat.
182She clarified that once she was stopped by so many police cars, she felt safe.
183She maintained that she was completely sober. She was not impaired by drugs or alcohol.
184Once she had been stopped by other officers, Russell re-attended the scene and stuck his head in. She believed he was sniffing for the smell of alcohol. She asked him, “Please, get my inhaler. I can’t breathe.”
185Under cross-examination, Street was asked to acknowledge her criminal record. She was convicted in 1991 of possession of a narcotic for which she received a $350 fine in Napanee.
186In 1992, she was convicted of theft under and fined $100 in Kingston.
187In 2012, she was convicted of possession of a schedule II substance, obstruction and failure to comply with a recognizance. She was sentenced to 3 days jail and placed on probation for one year in Napanee.
188Lastly, in 2013, she was convicted of dangerous operation of a motor vehicle while pursued by a peace officer and resisting a peace officer, for which she received a 12 month conditional sentence, probation for 2 years and a driving prohibition for 18 months.
189With respect to her drug use, Street recounted that she started using cocaine when she was 21 years of age. Later, the snorting of the drug progressed to smoking crack.
190After 2013, Street enjoyed a seven year period of sobriety.
191Regarding what occurred during her interaction with police a week before the incident giving rise to her charges, Street remembered being pulled over near the Tim Horton’s in downtown Pembroke. She did not believe that the incident had occurred as early as October 21, 2021.
192She testified that “to the best of her knowledge”, Trottier and Russell were the officers who stopped her. She was not charged with an offence. She denied that she was driving only 30 km/h and a 50 km/h zone. She explained, “That’s what happens when you are black. You get pulled over.” She added, “It’s racial profiling at its best.”
193In testifying about her arrest on November 11, 2021, Street indicated that she no longer had her cell phone because police confiscated it.
194She had no idea how many trips she had made to Pembroke from her residence in Ottawa in the 3 weeks preceding her arrest. She was not able to estimate if it was more than 10 times, but there were “quite a few times”.
195She added that when she made her November 10, 2021 trip to Pembroke, she talked to her ex-boyfriend en route while she was in Cobden. However, when she arrived in Pembroke, he did not answer his phone.
196She ended up at 715 Mary because her ex-boyfriend frequented that residence to socialize with the person he came to know while both were incarcerated.
197She testified that if she were to guess, she would have spent a couple of hours at 715 Mary talking and playing cards. She did not use any drugs while at the residence, nor did she have any in her system at the time of her arrival.
198She explained that she bought the Altima from a friend of a friend, who was a drug dealer. She thought she would stop driving that vehicle because she had two cars, and she kept getting pulled over in the Altima.
199She “just knew” that she was being followed by police when she left 715 Mary. It was 1:30 AM. There was no one else on the road.
200She believed that Trottier and Russell had racially profiled her. She estimated that she was pulled over half a dozen times in the week and a half prior to November 11, 2021, and over 100 times since obtaining her driver’s licence.
201She felt that the police in Pembroke were harassing her. She reflected that anytime she was beaten up by police, she had been driving alone in her car.
202She was certain that the colour of her skin was the reason why she was stopped on the night in question. However, she conceded that she encountered at least two to three stop signs on Mary St. before being pulled over.
203Street confirmed that the windows in her Altima are tinted. When Russell appeared at her driver side door, she remembered that she had interacted with him on what she thought was November 1, 2021, roughly a week earlier in the Tim Horton’s parking lot, but she could not pinpoint the date for certain.
204She added that she accused police of racial profiling then. She told Russell he was doing it again. She was “positive” and “100% certain” that it was both Trottier and Russell, who had pulled her over on the earlier occasion. It was not her first time dealing with those officers.
205She indicated that she did not own the Altima very long by that point - perhaps 3 weeks or so.
206She testified that the only window she put down on November 11, 2021 was her driver’s one. She thought she did so as Russell approached. All the windows of the Altima were tinted except for the windshield.
207She told Russell that he had already pulled her over before. He ought to know that she was “legit” and her car was too.
208The first thing she asked him was, “Why did you pull me over?”.
209She started filming the encounter with police near the beginning. She told Russell of her intention to do so. She does not have the passcode anymore for the phone she used to record the interaction. It was seized by police at the time of her arrest. She thought the police were going to get a search warrant for the phone.
210She agreed that she began conversing with Trottier at some point as well. However, she may not have the order of her discussions with both officers correct.
211She denied that there was any possibility for the police to see the plastic bottle with tin foil inside her Altima. It was not out in the open. However, she did vaguely remember Trottier telling her to film something down under the centre console.
212She agreed that the bong was present in the vehicle. It was a pop bottle with an opening used for smoking drugs. She could not recall whether she knew it was there at the time. She had not smoked anything on that date. She did not know how it came to be in her car.
213She commented that being in possession of drug paraphernalia is not even a basis for being charged with an offence in any event.
214Street was confronted with an OPP Occurrence Report chronicling her stop by police on October 21, 2021. The report indicated that she was stopped by police, not Trottier and Russell, and was questioned about driving slowly and crossing the centre line on McKay St. in Pembroke before pulling into the Tim Horton’s parking lot. She was not charged with any driving infraction. She was allowed to go on her way.
215She insisted nevertheless that she was not mistaken about Trottier and Russell being the officers who pulled her over on a prior occasion to November 11, 2021, the night of the incident giving rise to her charges. It was not her fault that they did not keep a record of when they had stopped her on this earlier occasion.
216At the scene of the initial traffic stop on November 11, 2021, she recalled Trottier and Russell grabbing at her and telling her to get out of her car. She was screaming and honking her horn. She wanted someone to come and to help her.
217She managed to get away from the officers. She denied barely missing a tree in doing so. She disagreed that the officers were dragged down the road and fell off her of her car as she fled. She had no memory of that. She was not trying to hurt anybody. She was in a state of panic.
218She testified that she was simply trying to get away from the officers. She was afraid for her life. Every time she sees a member of the OPP, she is fearful. She does her best to avoid interactions with police in general.
219Street denied that she threw anything out the windows of her Altima as she fled from police. She believed the bong ought to have still been in her vehicle when she was stopped by the other police officers. She believed that the police had noted it as having been found in the vehicle when she read her disclosure. However, she denied it was in plain sight when initially pulled over by Trottier and Russell.
220She conceded that it took her some time to stop for police. Nevertheless, she maintained that she was trying to go to the police station. She agreed that it was not until the spike belt was used and the police cars boxed her in that she finally brought her Altima to rest.
221With so many police officers around her, she felt at ease. The situation was different when she was at the roadside with only Trottier and Russell present.
222When asked to explain her reasoning for fleeing, she explained that she was panicked. Later she realized she was going to be in trouble, but in the initial moment of leaving the scene of the traffic stop on November 11, 2021, she was trying to save her life.
Position of the Applicant
223Counsel for Street argued that her conduct during the early morning hours of November 11, 2021 was not intentional or reckless. She acted out of reflex. To make out the offences of assaulting a peace officer, the Crown must prove that Trottier and Russell were in the execution of their duties as peace officers.
224Further, the Crown must demonstrate beyond a reasonable doubt that Street subjectively intended to use her Altima as a weapon against Trottier and Russell.
225Counsel for Street contended also that the initial traffic stop, detention and attempted arrest violated Street’s section 9 and 10(a) Charter rights.
226Counsel for Street submitted that what Trottier was doing on the night in question was an ‘8895’ stop for intelligence gathering purposes. The officer’s only basis for being suspicious about Street’s Altima being in the driveway of 715 Mary was Trottier’s prior knowledge that this residence was a “drug house”. Trottier had a hunch and nothing more that the driver of the Altima would be in possession of an illegal drug.
227Trottier’s radio communication over the MDT revealed nothing about Street’s supposed long pauses at the stop signs as she proceeded away from 715 Mary. Russell did not notice the pauses until they were drawn to his attention. Street herself had an innocent explanation for them.
228Counsel for Street pointed out that if Trottier truly wished to conduct a traffic stop to determine whether Street’s ability to operate her Altima was impaired to any degree by drug, he would have demanded:
a) that she perform Standard Field Sobriety Testing to assess the effect, if any, of the drug on her ability to operate her motor vehicle, or
b) that she provide a sample of her blood to determine the concentration of drug, if any, in it.
229Further, once Trottier saw the bong, it supplied him with no basis for arresting Street. The officer saw nothing which he could reasonably believe was a substance which Street could not legally possess. Simply put, it is not illegal to possess paraphernalia for consuming drugs.
230Counsel for Street submitted that Trottier and Russell perhaps could have investigatively detained her, but they had no grounds to arrest her. To do so was a violation of her section 10(a) Charter right to be informed promptly of the reason for her detention or arrest.
231In his evidence, Russell was clear that he did not tell Street why she was being ordered out of her vehicle and about to be arrested. The officer simply told her to exit the Altima.
232Based on the history of her interactions with police as a racialized woman, Street was attempting to defend herself. She simply wanted to get away from the officers. She reasonably perceived the threat they posed to her as real. She was never told why she was being ordered out of her vehicle.
233In essence, given her mental health conditions and past experiences, Street was fleeing to avoid the risk of being beaten by police. She merely wished to escape a dangerous situation for her.
234Counsel for Street argued that her driving was not dangerous. The Crown has not proven beyond a reasonable doubt the mens rea component upon application of the ‘modified objective test’. In other words, the operation of her motor vehicle did not constitute a “marked departure” of the standard of care expected of a reasonable person finding him or herself in the same circumstances that Street did on the night in question.
235Nor has the Crown proven the actus reus element of the offence. The evidence adduced at Street’s trial did not demonstrate beyond a reasonable doubt that she drove her vehicle in a manner which was dangerous to the public, having regard to all the prevailing circumstances on the night in question.
Position of the Respondent
236Crown counsel submitted that the starting point for analysis of the evidence adduced at Street’s trial must begin with an assessment of the credibility of the witnesses called. Both Trottier and Russell were credible. Street was not.
237Street testified that virtually every encounter she had with police since early adulthood was marred by racial discrimination and bias against her. Her criminal record must be the product of a series of wrongful convictions. That was the general tenor of her evidence.
238The Crown therefore urged the Court to find that Street is unbelievable.
239Instead, Crown counsel argued that Street was not the victim of police targeting and brutality. Her claims to have been so treated was exaggerated and untrue.
240Trottier and Russell did not know her and had not met her prior to the early morning hours of November 11, 2021. It was far more likely that when she was stopped roughly a week prior to the night in question, she interacted with other police officers, not Trottier and Russell.
241Crown counsel contended that because Trottier’s and Russell’s evidence diverged at points enhanced their credibility, as opposed to detracting from it. Trottier’s version of events did not change. Every single impaired driving stop is different and fluid.
242Trottier’s decision to stop Street was borne of legitimate suspicion. He saw her leave 715 Mary, a place he believed, based on experience, to be a “drug house”. Then as he followed her Altima as she made her way from that residence, he witnessed long pauses at stop signs. Those two factors combined with Street’s irate behaviour on scene, and the near immediate observation of the bong by Trottier, the Crown argued, was sufficient to constitute reasonable grounds for suspecting her ability to operate her vehicle was impaired by drug.
243Further, section 48 of the HTA provided statutory authority for police to check on the sobriety of the motorists. The lack of any radio communications from Trottier over the MDT prior to the stop was not surprising. By the time Trottier contacted the OPP Communications Centre, his investigation of Street was just commencing and evolving due to situational circumstances.
244When Russell approached her vehicle, he was verbally accosted and accused of being a racist, even though he is a black man. She presented to him as jittery, nervous, irate and confrontational. She wanted to film the interaction. Trottier permitted her to do so. Wisely or unwisely, he pointed the makeshift bong out to her and asked her to film that too.
245The Crown submitted that Trottier was intending to continue his investigative detention, but noticed that Street was attempting to destroy what might be evidence of a controlled drug at the spout of the bong. He tried to arrest her as a result.
246Before there was any opportunity to tell her why she was being detained or arrested, Street attempted to drive away. For officer and public safety reasons, Trottier and Russell tried to prevent her from doing so. They were unsuccessful in removing her from her vehicle. They were ejected from the Altima, after dangling from its doors and windows, some distance from where the vehicle was stopped, as Street fled the scene.
247The officers returned to their police vehicle and gave chase. Their pursuit was called off for public safety reasons by the Sergeant at the OPP Communications Centre.
248Crown counsel contended that Street took off not because she was afraid, but rather, because of her mental state, the presence of drug paraphernalia and to seek an opportunity to dispose of illegal drugs in her possession. She did so knowing that she would be endangering the police officers by driving away, and without any concern for injuring them.
249Crown Counsel submitted that Street could not avail herself of the statutory defence of self defence now embodied in section 34 of the Code. It was her own actions, not those of police, which created the dangerous situation which ensued.
250Accordingly, the Court should not find that any breach of Street’s Charter rights had occurred, nor should the Court allow her any resort to self defence.
Issues
251The hearing into the alleged violation of Street’s Charter rights raises the following issues:
a) Was Street’s s. 9 Charter right not to be arbitrarily detained, or her s. 10(a) Charter right to be informed promptly of the reasons for her detention and arrest violated?
b) If so, how serious were the violations?
c) What impact did the violations have on the Charter-protected interests of Street?
d) What is society’s interest in an adjudication on the merits of the case?
e) Balancing the factors in a) through d) above, should the impugned evidence be excluded pursuant to section 24(2) of the Charter?
The Law
Arbitrary Detention:
252The decision of the Supreme Court of Canada (“the SCC”) in R. v. Wilson (1990) 1990 109 (SCC), 1 S.C.R. 1291, an appeal heard immediately following the far more well-known case of R. v. Ladouceur (1990) 1 S.C.R., involved facts analogous to those adduced in evidence at Street’s trial. In Wilson, a police officer stopped the appellant, even though he had no reason to believe he was doing anything wrong. A five member majority of the full panel of the SCC held that the traffic stop was not random, but was effected for the following reasons:
a) the vehicle the appellant was operating was a block away from one of the nearby hotels,
b) the bars at the hotels had just closed,
c) there were three men in the front seat of the vehicle,
d) the vehicle had out of province license plates, and
e) the officer recognized neither the vehicle, nor its occupants.
253In his testimony, the officer candidly admitted that on night patrols he would pick a certain area, and would drive back and forth within that zone stopping individuals to check on their sobriety.
254Then s.119 of the HTA in Alberta, where the conviction was registered, and from where the appeal eventually made its way to the SCC, provided as follows:
“A driver shall, immediately upon being signalled or requested to stop by a peace officer in uniform, bring his vehicle to a stop and furnish any information respecting the driver of the vehicle that the peace officer requires and shall not start his vehicle until he is permitted to do so by the peace officer.”
255The SCC majority clarified that the legislation imposed a duty on the motorist to stop under certain circumstances. It did not confer a power to police.
256Regarding the issue of whether the traffic stop was nevertheless arbitrary and violated section 9 of the Charter, the majority decision of the SCC held it did not. Where a police officer could clearly express and provide some articulable cause for the stop, the detention could not be regarded as random or arbitrary.
257Wilson has stood as a binding authority from the SCC upon Canadian courts for some 33 years.
258Similar to the Alberta stature, s. 48(1) of the HTA in Ontario provides as follows:
48 (1) A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 320.27 or 320.28 of the Criminal Code (Canada). 2007, c. 13, s. 10; 2019, c. 8, Sched. 1, s. 1.
259My reading of this section of the Ontario statute confers a broad discretionary power to police to combat the scourge of impaired driving. It also imposes a duty upon a motorist to provide a breath or blood sample, or to perform field tests, if the evidence for such demands exists, to ensure public safety on our highways.
The Right to be Informed Promptly of the Reasons for Arrest:
260In R. v. Gonzales (2017), 2017 ONCA 543, 354 C.C.C. (3d) 572, Watt J.A. for a unanimous, three member panel of the Court of Appeal for Ontario explained:
120A few brief points about the operation of s. 10(a) inform my determination of this ground of appeal.
121First, the substance of the right.
122Section 10(a) includes both temporal and substantive aspects. The beneficiaries are those who are arrested or detained. The phrase "on arrest or detention" serves not only to define the class of beneficiaries -- those arrested or detained -- but also to assist, together with the adverb "promptly", in marking out when the right accrues. The provision describes the substance of the information to be conveyed -- "the reasons" for the arrest or detention. At a minimum, s. 10(a) requires that individuals who are arrested or detained for investigative purposes be advised, in clear and simple language, of the reasons for their detention: Mann, at para. 21.
123A functional equivalent of the term "promptly" in s. 10(a) is the phrase "without delay", which appears in s. 10(b). There, the phrase is synonymous with "immediately", but does permit delay on the basis of concerns for officer or public safety: R. v. Suberu, [2009] 2 S.C.R. 460, [2009] S.C.J. No. 33, 2009 SCC 33, at paras. 2 and 41.
124The right to prompt advice of the reasons for detention is rooted in the notion that a person is not required to submit to an arrest if the person does not know the reasons for it. But there is another aspect of the right guaranteed by s. 10(a). And that is its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. Meaningful exercise of the right to counsel can only occur when a detainee knows the extent of his or her [page249] jeopardy: R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869, [1991] S.C.J. No. 31, at pp. 886-87 S.C.R.
125To determine whether a breach of s. 10(a) has occurred, substance controls, not form. It is the substance of what an accused can reasonably be supposed to have understood, not the formalism of the precise words used that must govern. The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit him to make a reasonable decision to decline or submit to arrest, or in the alternative, to undermine the right to counsel under s. 10(b): Evans, at p. 888 S.C.R.
261As with all matters of law, context is important. In R. v. Rhodenizer (2018), 2018 ABCA 224, 415 C.R.R. (2d) 169, the Court of Appeal of Alberta, in interpreting s. 10(a) of the Charter, emphasized at para. 2:
“The appellant had been involved in a serious accident, and was required by law to remain at the scene. The RCMP constable who responded asked him first about his apparent injury, then whether he had been drinking. All of this happened in a few minutes. It would have been obvious from the context that he was being questioned and detained with respect to possible impaired driving: R. v Lund, 2008 ABCA 373 at para. 16, 440 AR 362.”
262I will, of course, take guidance from the authorities set out above and apply the governing principles in analyzing the issues raised during the Charter voir dire.
Analysis
Was Street’s s. 9 Charter right not to be arbitrarily detained, or her s. 10(a) Charter right to be informed promptly of the reasons for her detention and arrest violated?
263Trottier was clear in the evidence he gave. He stopped Street to check on her sobriety. She had just left a residence known to him to be a “drug house”. She paused for an inordinate amount of time at two stop signs along Mary St. as he followed her to observe her driving behaviours. Russell noticed a long pause too when it was drawn to his attention. Indeed, Street confirmed in her evidence that she is “hyper aware” and drives cautiously to avoid being stopped by police.
264Section 48(1) of the HTA empowered Trottier to conduct a traffic stop to check on Street’s sobriety, and obligated Street to bring her vehicle to rest to allow police to ensure she was not operating her Altima in an impaired state. Viewed in this light, there was no arbitrary detention of Street.
265I believe Trottier’s testimony that he was legitimately investigating a suspected impaired motorist’s ability to operate a vehicle. He could not see inside the Altima due to its heavily tinted windows. He was not racially profiling Street. Neither Russell nor he knew she was a black woman until they attended at the side of her car.
266Simply put, race played no role in Trottier’s decision to pull Street over. She was not arbitrarily detained.
267Her right to be informed promptly of the reason for her arrest is quite another story. Neither Trottier nor Russell told her immediately why she was being detained and later placed under arrest.
268I appreciate that Street was confrontational with the officers from the outset of her encounter with them. However, the law requires more of police in the execution of their duties than what was shown to Street during the early morning hours of November 11, 2021. Trottier and Russell ought to have behaved professionally throughout their interaction with her. I find they did not so behave.
269The officers could see this woman was alone in her vehicle. They had stopped her late at night. They did not promptly tell her why. Much of her irate behaviour demonstrated toward them may have been avoided, had they done so.
270It was not immediately explained to Street that the officers wished to simply check on her sobriety. If she had been so informed from the outset, the necessity for a police pursuit may have been obviated.
271In entertaining this possibility, I am not overlooking the context of the traffic stop. Russell was legitimately taken aback by Street’s accusatory tone when he arrived at her driver’s window. By her own admission, she was agitated and upset at being pulled over yet again by police.
272Trottier allowed her to film what was occurring. I do not accept his explanation that his decision to permit her to do so was motivated out of a desire to calm her. I reject this contention. It flies in the face of what he asked her to do while filming – to make sure she captured the makeshift bong he noticed under the centre console. That request was akin to throwing gas on an open fire. It served to amp Street up all the more.
273Matters became even worse quickly thereafter. Trottier believed, that seeing the bong and what may or may not have been laid on the tin foil at its spout, which Street was trying to either conceal or destroy, provided him with reasonable grounds to arrest Street.
274The arrest may have been precipitous, as argued by the defence. Possession of drug paraphernalia will only be grounds for an investigative detention, not arrest, but again, context is critically important (see R. v. Janzen (2019) BCSC 256 at paras. 91 – 92).
275What I can safely conclude is that Street was not legally free to leave at the point Trottier asked her to film the bong indicating his interest in it, and a possible desire on his part to seize it (see s. 489(2)(c) of the Code). Trottier and Russell were entitled to continue to their investigation into whether her ability to drive was impaired by drug.
276The tense atmosphere at the roadside only heightened, clearly, when Street was ordered out of her vehicle. It prompted a flight response on her part, especially when the officers began taking physical control of her trying to extricate her from her vehicle. A truly dangerous situation ensued.
277I repeat, because the repetition is warranted, the whole course of events may have been avoided if only she had been told immediately about the reasons for the traffic stop.
278On my assessment of the evidence of Trottier, Russell and Street, I find that Street has established on a balance of probabilities that her right to be informed promptly of the reasons for her detention and arrest were infringed by the officers.
How serious was the Charter violation?
279In my view, the Charter violation was serious, but I would not go so far as to characterize it as egregious. The officers did not willfully and flagrantly violate Street’s section 10(a) Charter right. They were simply negligent by not turning their minds to their police obligation to inform her promptly of the reasons for her detention.
280I accept Trottier’s and Russell’s evidence that their roadside encounter with Street played out quickly. It was fluid. Perhaps ‘rapid fire’ is a better descriptor. From beginning (the traffic stop) to end (the ordered termination of their police pursuit), less than ten minutes elapsed. However, it did not relieve police of their obligation to inform her immediately as to why she was being detained.
What impact did the violations have on the Charter-protected interests of Street?
281It is difficult to assess the impact of the violation on Street’s Charter-protected interests because it is impossible to determine what calming effect, if any, an explanation of the reasons for the traffic stop and ultimate arrest, lawful or unlawful, would have had on Street. She was constitutionally entitled to know. However, given her background and past bad experiences with police, she may have opted never to voluntarily exit her vehicle to perform, for example, the Standard Field Sobriety Testing at the direction of Trottier and Russell, or some other officer called to the scene.
282Another driving force for her may have been the desire to dispose of incriminating evidence. The state of her vehicle at the time she was successfully stopped by other officers allows an inference to be drawn that she needed the opportunity to rid her purse and vehicle of illegal drugs. Russell saw the white powdery substance spread throughout her vehicle. Its windows including the sunroof were open on a cool November night.
283In short, I cannot conclude that Street’s decision to flee would not have occurred but for the breach. It may have happened in any event. I accept Trottier’s evidence that when he drew Street’s attention the makeshift bong, she tried to conceal it or destroy a controlled substance, or residue of such a substance located on the tin foil placed over its spout.
284I find notwithstanding that, to the extent the failure to inform her promptly of the reasons for her detention contributed to her decision to flee, it was significantly impactful. She could well have submitted to her detention or arrest if she had been so informed.
What is society’s interest in an adjudication on the merits of the case?
285Counsel for Street did not specifically articulate what evidence he was seeking to have excluded as a result of the Charter violation. Surely it cannot be all the observations made by police of Street’s conduct following her decision not to submit to detention and arrest.
286The evidence which the Crown seeks to rely on in its prosecution of Street is heavily dependent upon what policer officers saw Street do as she drove away from the site of the initial traffic stop. It is ‘eye witness’ evidence. It is essential to its case against her.
287The prosecution would be gutted if the Crown is deprived of this evidence. Society’s interest in adjudication on the merits would suffer if the Crown could have no avail to the ‘eye witness’ evidence.
Balancing the Above Factors for Consideration, Should the Impugned Evidence be Excluded pursuant to Section 24(2) of the Charter?
288Considering the effect of the breach perpetrated by police on Street’s s.10(a) Charter right and its impact upon the long-term repute of the administration of justice, I conclude that the ‘eye witness’ evidence surrounding her decision to flee the traffic stop cannot be excluded. To do so would effectively grant her a licence to flee any form of future scrutiny by police to investigate her ability to drive when she is driving alone late at night to determine whether it is impaired by alcohol, drug, or both. A grave injustice would ensue.
289In R. v. Tim (2022) SCC 12, the SCC recently had occasion to review the legal principles to be applied when considering exclusion of evidence in consequence of a Charter breach. Jamal J. speaking for the majority of the Court wrote:
74Section 24(2) of the Charter is triggered where evidence is “obtained in a manner” that violates an accused’s Charter rights. A s. 24(2) inquiry examines the impact of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term, based on three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on the merits. A court’s task is to balance the assessments under these three lines of inquiry “to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute” (Grant, at para. 71; see also Le, at paras. 139-42).
75Section 24(2) does not create an automatic exclusionary rule when evidence is obtained in breach of a Charter right. The accused bears the onus of establishing that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute (see Collins, at p. 280; Fearon, at para. 89; see also S. C. Hill, D. M. Tanovich and L. P. Strezos, McWilliams’ Canadian Criminal Evidence (5th ed. (loose-leaf)), at § 19:12).
290He went on to explain how lower Courts are to interpret the language “obtained in a manner” as set out in s. 24(2) of the Charter as follows:
78This Court has provided guidance as to when evidence is “obtained in a manner” that breached an accused’s Charter rights so as to trigger s. 24(2):
The courts take “a purposive and generous approach” to whether evidence was “obtained in a manner” that breached an accused’s Charter rights (R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38).
The “entire chain of events” involving the Charter breach and the impugned evidence should be examined (R. v. Strachan, 1988 25 (SCC), [1988] 2 S.C.R. 980, at pp. 1005-6).
“Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct” (Mack, at para. 38; see also Wittwer, at para. 21).
The connection between the Charter breach and the impugned evidence can be “temporal, contextual, causal or a combination of the three” (Wittwer, at para. 21, quoting R. v. Plaha (2004), 2004 21043 (ON CA), 189 O.A.C. 376, at para. 45). A causal connection is not required (Wittwer, at para. 21; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 83; Strachan, at pp. 1000-1002).
A remote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2) (Mack, at para. 38; Wittwer, at para. 21; R. v. Goldhart, 1996 214 (SCC), [1996] 2 S.C.R. 463, at para. 40; Strachan, at pp. 1005-6). Such situations should be dealt with on a case by case basis. There is “no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote” (Strachan, at p. 1006).
See also R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72; R. v. Lichtenwald, 2020 SKCA 70, 388 C.C.C. (3d) 377, at para. 57; R. v. Reilly, 2020 BCCA 369, 397 C.C.C. (3d) 219, at paras. 75-76, aff’d 2021 SCC 38; and Hill, Tanovich and Strezos, at § 19:22.
291In my view, the ‘eye witness’ or direct, observational evidence which the Crown intends to rely on in its prosecution bears a very tenuous connection to the s. 10(a) Charter breach Street suffered through the failure of Trottier and Russell to inform her promptly of the reasons for her detention and arrest. It borders on slight to insubstantial.
292I find that Street was just as likely to flee the scene for her own reasons unconnected to any police obligation to inform her as to why she has been stopped. The jig was up for Street. The officers saw what might have been potentially incriminating evidence. She wanted to dispose of it and her flight provided her with the opportunity to do exactly that.
293The public’s confidence in the justice system over the long term would be completely undermined if police observations of her conduct after she made her decision to flee were excluded at her trial.
Flight from Police and Dangerous Driving:
294The evidence, that Street failed to stop for police while operating her Altima and being pursued by police, and of driving dangerously, is overwhelming.
295I accept the testimony of Trottier and Russell regarding her driving antics as she fled. She mounted a curb and almost hit a tree. Her acceleration away from the point of her stop caused both officers to be ejected. Through good fortune, they both escaped serious injury.
296When they caught up to her and followed her along Pembroke St., she stopped her vehicle and went around them after they tried to box her in. She performed a U-turn on Pembroke Street East to evade police and proceeded toward downtown Pembroke.
297Further, I accept Russell’s evidence that she almost caused a collision with another driver when she went through a stop sign.
298She then avoided Cst. MacInnis’ cruiser, which tried to block her path on Trafalgar Road.
299She even tried on one brief occasion to avoid the rolling block effected by the police cruisers after Sgt. Briscoe successfully deployed the spike belt which flattened her two front tires.
300Applying the modified objective test to determine whether the mental element of a dangerous driving offence has been proven beyond a reasonable doubt by the Crown, I find that it has. A reasonable person similarly situated to Street on the night in question would not have driven a motor vehicle as she did. She ought to have submitted to the police attempts to stop her vehicle. She did not. She endangered another motorist and others who could reasonably be expected to be using public streets and highways in and about the city of Pembroke. Her driving constituted a marked departure from the standard of care a reasonable person would have observed in Street’s circumstances. That she did not injure herself or others through her manner of driving was the result of pure good luck, certainly not good decision-making on her part.
301I specifically reject Street’s claim that her flight was an attempt to save her life.
302In R. v. Khill (2021) SCC 37, the SCC reviewed the circumstances under which an accused can avail himself or herself of the defence of self-defence now embodied in s. 34 of the Code.
303While I accept that Street’s state of mind and her perception of events based on past experiences with police led her to some degree to act as she did, I cannot find that her belief held at the time she fled was a reasonable one. I specifically reject her testimony that she was in danger of losing her life. (see Khill at paras. 52 and 53)
304As aforestated, Street wanted to flee for reasons wholly unrelated to a need for self-preservation. When her attention was drawn to the bong, she understood exactly what police were intending to investigate. She wanted to avoid exactly that. She wanted to get away mainly for that reason.
305As explained by Martin J. speaking for the majority in Khill:
55For example, an accused’s prior violent encounters with the victim were taken into account to assess whether the accused believed on reasonable grounds that they faced an imminent threat of death or grievous bodily harm (Pétel, at p. 13-14; Lavallee, at pp. 874 and 889; Charlebois, at para. 14; R. v. Currie (2002), 2002 44973 (ON CA), 166 C.C.C. (3d) 190 (Ont. C.A.), at paras. 43-44; R. v. Sheri (2004), 2004 8529 (ON CA), 185 C.C.C. (3d) 155 (Ont. C.A.), at para. 77). An accused’s mental disabilities were also considered in the reasonableness assessment (Nelson, at pp. 370-72; R. v. Kagan, 2004 NSCA 77, 224 N.S.R. (2d) 118, at paras. 37-45).
56However, not all personal characteristics or experiences are relevant to the modified objective inquiry. The personal circumstances of the accused that influence their beliefs — be they noble, anti-social or criminal — should not undermine the Criminal Code’s most basic purpose of promoting public order (Cinous, at para. 128, per Binnie J., concurring). Reasonableness is not considered through the eyes of individuals who are overly fearful, intoxicated, abnormally vigilant or members of criminal subcultures (Reilly v. The Queen, 1984 83 (SCC), [1984] 2 S.C.R. 396, at p. 405; Cinous, at para. 129-30; R. v. Phillips, 2017 ONCA 752, 355 C.C.C. (3d) 141, at para. 98). Similarly, the ordinary person standard is “informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Canadian Charter of Rights and Freedoms” (R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 34). Personal prejudices or irrational fears towards an ethnic group or identifiable culture could never acceptably inform an objectively reasonable perception of a threat. This limitation ensures that racist beliefs which are antithetical to equality cannot ground a belief held on reasonable grounds. Doherty J.A. succinctly illustrated this principle in his reasons in this appeal, at para. 49:
For example, an accused’s “honest” belief that all young black men are armed and dangerous could not be taken into account in determining the reasonableness of that accused’s belief that the young black man he shot was armed and about to shoot him. To colour the reasonableness inquiry with racist views would undermine the very purpose of that inquiry. The justificatory rationale for the defence is inimical to a defence predicated on a belief that is inconsistent with essential community values and norms.
57The question is not therefore what the accused thought was reasonable based on their characteristics and experiences, but rather what a reasonable person with those relevant characteristics and experiences would perceive (Pilon, at para. 74). The law also continues to accept that an honest but mistaken belief can nevertheless be reasonable and does not automatically bar a claim to self‑defence (Lavallee, at p. 874; Pétel, at p. 13; R. v. Billing, 2019 BCCA 237, 379 C.C.C. (3d) 285, at para. 9; R. v. Robinson, 2019 ABQB 889, at para. 23; R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 8).
58Reasonableness is ultimately a matter of judgment and “[t]o brand a belief as unreasonable in the context of a self‑defence claim is to declare the accused’s act criminally blameworthy” (C.A. reasons, at para. 46; see also Cinous, at para. 210, per Arbour J. in dissent but not on this point; Pilon, at para. 75; R. v. Phillips, at para. 98; G. P. Fletcher, “The Right and the Reasonable”, in R. L. Christopher, ed., Fletcher’s Essays on Criminal Law (2013), 150, at p. 157).
306Further, Martin J. clarified that the availability of the defence of self-defence requires an assessment of the accused’s overall role in the incident. She wrote:
89Self-defence is not meant to be an insurance policy or self-help mechanism to proactively take the law — and the lives of other citizens — into one’s hands. As the Nova Scotia Court of Appeal suggested in Borden at para. 101, by including the person’s “role in the incident” in s. 34(2)(c), “a protection is hopefully present to prevent self‑defence from becoming too ready a refuge for people who instigate violent encounters, but then seek to escape criminal liability when the encounter does not go as they hoped and they resort to use of a weapon.” The law should encourage peaceful resolution of disputes. It should not condone the unnecessary escalation of conflicts.
90When such escalations do occur, particularly in the heat of the moment, the opportunity for mistake and disproportionate responses only grows. This is recognized in former s. 35 and its imposition of a duty to retreat where the accused was an initial aggressor or provocateur, reflecting the need to balance the accused’s bodily integrity, that of the victim and the wider societal interest in controlling the application of force. Failure to consider the accused’s role in creating or escalating the conflict will invite moral paradoxes, where both attacker and defender may rightly appeal to the new permissible scope of self-defence and yet also find themselves the legitimate target of attack (H. Stewart, “The constitution and the right of self-defence” (2011), 61 U.T.L.J. 899, at p. 917; F. Muñoz Conde, “Putative Self-Defence: A Borderline Case Between Justification and Excuse” (2008), 11 New Crim. L. Rev. 590, at p. 599).
307In short, the totality of the evidence, properly interpreted, leaves no room for the acceptance of the defence of self-defence in this case. Rather, the evidence established plainly, and beyond a reasonable doubt, that Street fled police while pursued by them and drove dangerously in so doing.
Assault of Peace Officers with a Weapon:
308In order to demonstrate that Street assaulted Trottier and Russell with a weapon, namely her motor vehicle, the Crown must prove beyond a reasonable doubt that she intended to apply force directly or indirectly to them. In my view, the Crown’s attempt to do so has failed.
309What occurred in this case was Trottier’s and Russell’s initial unsuccessful try at arresting Street. They detained her. They ordered her out of her vehicle. Yet they never told her why.
310For her own reasons, Street wanted to escape a drug investigation by police. She panicked and drove to get away from police.
311I accept her evidence that she was not intending to hurt anyone. She was in a state of panic. (see R. v. Laforme and Martin (2014) ONSC 1457 at para. 158)
312Street was not intending to apply force directly or indirectly to Trottier or Russell through the use of her Altima. Quite to the contrary, she was trying to escape their grasp and get away from them. Her decision placed the officers in danger, but it was not intended in any way to be assaultive toward them.
Conclusion
313For the reasons set out above, I must dismiss the Charter application brought on behalf of Street.
314She will be found guilty of flight from police and dangerous driving. She will be found not guilty of assaulting Trottier and Russell with a weapon. Upon the invitation of Crown counsel, I will dismiss the CDSA charges.
DATED: November 15, 2023
March, M.G., J.