Court of Appeal for Ontario

Date: 2018-03-21

Docket: C61796

Judges: Rouleau, Huscroft and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Wendell Cuff Appellant

Counsel:

• Marianne Salih, for the appellant
• Lisa Csele and Sharon Reynolds, for the respondent

Heard: March 7 and 9, 2018

On appeal from the convictions entered on November 10, 2015 by Justice Catrina D. Braid of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

Overview

[1] This is an appeal from convictions for possession of cocaine for the purpose of trafficking and fail to comply with a probation order. The convictions rest on a pre-trial ruling dismissing the appellant's application for the exclusion of evidence arising from alleged breaches of ss. 8 and 9 of the Charter. This appeal turns on the correctness of that ruling. The appellant maintains that the trial judge erred in concluding that:

(i) he had no reasonable expectation of privacy in a vehicle he had been driving;

(ii) the vehicle was seized and searched with legal authority; and

(iii) it was unnecessary to resolve whether he was arbitrarily detained.

[2] We dismiss the appeal for the reasons that follow.

General Background

[3] Cst. Wilson was conducting speed enforcement when he observed the appellant driving well in excess of the speed limit. The officer took pursuit and the appellant eventually brought the motor vehicle he was driving to rest in the parking lot of a multi-unit apartment complex. Cst. Wilson positioned his vehicle behind the one driven by the appellant.

[4] As Cst. Wilson was looking at his police computer, the appellant got out of his car and approached the officer's vehicle. Cst. Wilson's driver's side window was down. The officer asked the appellant for his licence, insurance and registration. After one to two seconds, the appellant ran. Cst. Wilson called for backup and then gave chase on foot.

[5] Cst. Morton came to assist. He saw a male he believed to be the driver running through a field. The officer yelled out to the man that he was a police officer and to stop because he was being placed under arrest for failing to identify himself. The man looked back at Cst. Morton and continued to run. When the officer caught up to him, the appellant was placed under arrest for failing to identify himself pursuant to s. 33(3) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA). The appellant was placed in handcuffs.

[6] At some point following his arrest, the appellant said that his name was Wendell Cuff. Another officer who arrived on scene was able to confirm the appellant's identity. Although the appellant had lost weight since the officer had last seen him, once given his name, the officer confirmed that it was Mr. Cuff.

[7] The vehicle stop had taken place just after 2:50 p.m. It was 3:08 p.m. by the time that the appellant and officers arrived back at the parking lot where the vehicles had been left. The appellant was provided with his right to counsel. The officers then commenced computer checks. At 3:39 p.m. the police discovered that the appellant was on probation, which included a term to keep the peace and be of good behavior. Although the police witnesses were unclear about who made the decision to arrest for breach of probation, the trial judge found as a fact that the appellant was arrested for the breach at that time. Cst. Morton was then asked to transport the appellant to the police station.

[8] The vehicle had been left locked and the appellant did not have keys in his possession. Despite an extensive police search for evidence the appellant may have discarded when he fled, the keys were not found. Cst. Wilson testified that he was concerned about the ownership of the vehicle. Although he was able to determine that the vehicle was registered to a business, the officer had nothing to confirm that it was in the appellant's lawful possession or had any connection to the private parking lot the appellant had left it in.

[9] The vehicle was towed at 4:10 p.m. to the place where the Brantford Police Service stores impounded vehicles. The police then conducted an inventory search of the vehicle, resulting in the discovery of a bag in the backseat. The bag contained the appellant's health card, temporary driver's licence and what Cst. Wilson believed to be cocaine. The search was halted, the vehicle was resealed and a search warrant was obtained. The subsequent search revealed 72.2 grams of cocaine. This seizure gave rise to the drug-related conviction.

Standing

[10] The appellant maintains that the trial judge erred in finding that he had no standing to assert a s. 8 Charter claim with respect to the vehicle. The appellant emphasizes that, despite his admitted flight from the police, he did not abandon his privacy interest in the vehicle. We do not agree that the trial judge erred in reaching her conclusion on the standing issue.

[11] The onus was on the appellant to establish his standing to raise a s. 8 Charter challenge: R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45; R. v. M. (M.R.), [1998] 3 S.C.R. 393, at para. 31. It was for him to establish on a balance of probabilities that, in the circumstances of this case, he had a reasonable expectation of privacy in the motor vehicle where the cocaine was found.

[12] The trial judge correctly approached the standing issue as a threshold one and specifically noted the appellant's onus of establishing his personal right to privacy in the vehicle. She considered the facts of this case against each of the Edwards criteria for determining whether the appellant had met his onus.

[13] Although the appellant did not testify, the trial judge noted that there was evidence from which a subjective privacy interest could be inferred. In particular, she considered the fact that he may have locked the doors before he took flight and that the vehicle had been parked at an apartment building where his brother resided. Ultimately, though, the trial judge concluded that any minimal subjective privacy interest the appellant may have had in the vehicle was not objectively reasonable in all of the circumstances. In particular, the trial judge considered the following:

(i) While the appellant had been present in the vehicle when driving it, he had deliberately removed himself from the vehicle when he fled.

(ii) Although the appellant had possession of the vehicle while driving it, and it appeared that he had locked the doors before he fled, he did not regain possession of it when he and the police officers returned to the scene. Nor could he have regained possession, given that the keys had either been lost or discarded.

(iii) The appellant did not own the vehicle.

(iv) There was no evidence suggesting that the appellant had a historical connection to the vehicle.

(v) There was no evidence that the appellant occupied the vehicle with the owner's consent and, therefore, no evidence to suggest he had any right to admit or exclude anyone from the vehicle.

[14] We see no error in the trial judge's approach. Her legal analysis is rooted in the Edwards criteria. In the circumstances of this case, it was open to the trial judge to conclude that the appellant had failed to establish his s. 8 Charter interest in the car.

[15] In any event, the trial judge's finding in this regard had no impact on the s. 8 motion as she went on to consider and resolve the other s. 8 arguments, as though the appellant had standing to advance them. We now move on to consider those arguments.

The Seizure and Search of the Vehicle

[16] The appellant maintains that the trial judge erred in concluding that the vehicle was lawfully seized. He makes two specific arguments: (a) the trial judge failed to appreciate that Cst. Wilson did not have a subjective belief that he was operating under s. 221(1) of the HTA when the vehicle was seized; and, in any event, (b) s. 221(1) of the HTA did not apply because the vehicle was not "apparently abandoned" within the meaning of the statutory provision.

[17] As for the appellant's first argument regarding the seizure of the vehicle, he maintains that an officer must turn his or her mind to the basis of the seizure before it is carried out. The appellant points to a portion of Cst. Wilson's evidence to suggest that he did not have the subjective belief that he had authority to seize the vehicle under s. 221(1) of the HTA. Accordingly, the appellant maintains that the seizure of the car was unlawful. We do not agree.

[18] Cst. Wilson initially testified that he thought that the vehicle had been abandoned and that he was acting pursuant to the HTA. He was extensively cross-examined on his subjective belief. It was only after counsel had suggested to him that s. 221(1) of the HTA only applies when vehicles are left on highways, that the officer conceded that he may not have had authority to seize the vehicle. Although this may have been a damaging admission in some contexts, the trial judge specifically noted in her reasons that the cross-examination on this point was potentially misleading. We agree. In particular, we note that s. 221(1) of the HTA allows for the seizure of vehicles apparently abandoned "near a highway". Accordingly, the officer's original evidence about his reliance on the HTA was correct. Section 221(1) of the HTA provided authority for the seizure. The provision reads:

221 (1) A police officer or an officer appointed for carrying out the provisions of this Act who discovers a vehicle apparently abandoned on or near a highway or a motor vehicle or trailer without proper number plates may take the vehicle into the custody of the law and may cause it to be taken to and stored in a suitable place.

[19] Considering his evidence in its totality, it is clear that, as found by the trial judge, Cst. Wilson held the subjective belief that the HTA provided him the authority to seize the vehicle. We see no error in the trial judge's conclusion to this effect.

[20] The appellant's second argument is that the facts of this case did not support a seizure under s. 221(1) of the HTA because the appellant's flight cannot be fairly construed as "apparent abandonment".

[21] In finding that the vehicle had been "apparently abandoned", the trial judge focussed on two authorities that have since been appealed to this court and resolved: R. v. Ellis, 2016 ONCA 598, 132 O.R. (3d) 510; R. v. Dunkley, 2016 ONCA 597, 131 O.R. (3d) 721. Having regard to all of the circumstances, the trial judge concluded that the vehicle had been "apparently abandoned" within the meaning of s. 221(1) of the HTA. We see no error in her approach.

[22] As noted by this court in Dunkley, at para. 44, "whether a vehicle has been apparently abandoned is fact-specific". See also: Ellis, at para. 63. Having regard to the following circumstances, it was open to the trial judge to find apparent abandonment:

(i) the vehicle was not registered in the appellant's name;

(ii) the appellant was unable to produce documentation for the vehicle;

(iii) the vehicle was left on private property, parked behind an apartment building;

(iv) the police on scene had no reason to associate the appellant with the apartment building and, in fact, they believed that he did not live in Brantford;

(v) the appellant had run from the vehicle after being signalled by the police to stop the vehicle; and

(vi) the keys to the vehicle could not be found.

[23] While the appellant attempted to align the facts in this case with those in Dunkley, where this court concluded that simply running from a vehicle left at a gas station did not constitute apparent abandonment for the purposes of s. 221(1), we see the facts in this case as being much closer to those in Ellis. In particular, like in Ellis, the appellant attempted to distance himself from a vehicle he had been driving by parking it on private property. Like in Ellis, the police were unable to link the vehicle the appellant had been driving to the location where he had left it. And, like in Ellis, the police did not believe that they could leave the vehicle the appellant had been driving on the private property where he had left it.

[24] We see no error in the trial judge's approach or conclusion that the vehicle had been "apparently abandoned". Accordingly, it was open to the police to seize the vehicle under s. 221(1) of the HTA.

[25] Following the hearing in this matter, the parties were asked for submissions as to whether s. 217(4) of the HTA provides additional authority for the seizure. Section 217(4) provides that where the police make an arrest without a warrant, they "may detain the motor vehicle with which the offence was committed until the final disposition of any prosecution under this Act or under the Criminal Code …". Although we heard from the parties on this issue, given our conclusion that the trial judge did not err in her approach to s. 221(1), it is unnecessary to address this other potential means by which the vehicle could have been lawfully seized.

[26] Having properly seized the vehicle, the police were under an obligation to keep the vehicle and its contents safe. To fulfill this responsibility, the police had to conduct an inventory search of the vehicle: R. v. Nicolosi, 40 O.R. (3d) 417, at paras. 29-30.

[27] Although the appellant argues that the police were really searching the vehicle for a purpose unrelated to inventorying its contents, the trial judge specifically rejected this suggestion. The trial judge accepted the evidence given by the police officers, finding each of them credible. She concluded that their primary motivation to search was to inventory the contents of the car. This is a purpose that is consistent with this court's judgment in Nicolosi. The fact that the police may have suspected that they would find drugs while searching the vehicle did not alter their authority to conduct an inventory search: R. v. Wint, 2009 ONCA 52, 93 O.R. (3d) 514, at para. 11, leave to appeal refused [2009] S.C.C.A. No. 164. Once they found the drugs, the police acted responsibly, ceased their search, resealed the car and obtained a search warrant.

[28] This ground of appeal must also fail.

Detention

[29] The trial judge concluded that it was unnecessary to decide whether the appellant's s. 9 Charter interests had been breached because any such breach would have had no impact on the admissibility of evidence located within the lawfully seized vehicle.

[30] The appellant maintains that the trial judge erred in failing to give a s. 9 Charter ruling. We agree. The fact that the evidence sought to be excluded had been discovered during a constitutionally sound search did not mean that a s. 9 Charter violation could not have had an impact on the question of admissibility. As this court reinforced in R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 56, the "obtained in a manner" requirement for exclusion under s. 24(2) of the Charter calls for consideration of contextual, temporal and causal relationships between Charter breaches and the discovery of evidence sought to be excluded. In our view, if the appellant had been arbitrarily detained, this Charter breach could have resulted in a s. 24(2) inquiry. As such, it falls to us to consider the s. 9 issue.

[31] The appellant raises three specific arguments on this point. First, the appellant submits that s. 149(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33 (POA) required that he be released as soon as he provided his name to the police and they were satisfied of his identity. Section 149 reads:

149 (1) Where a police officer, acting under a warrant or other power of arrest, arrests a person, the police officer shall, as soon as is practicable, release the person from custody after serving him or her with a summons or offence notice unless the officer has reasonable and probable grounds to believe that,

(a) it is necessary in the public interest for the person to be detained, having regard to all the circumstances including the need to,

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence, or

(iii) prevent the continuation or repetition of the offence or the commission of another offence…

The appellant maintains that, as the police did not harbour any of the concerns set out in s. 149, they were required to release him by way of a summons under s. 22 of the POA.

[32] Second, the appellant maintains that, although the police were entitled to charge him with breaching his probation, they were not authorized to arrest him without warrant for this offence. Section 495(2) of the Criminal Code states that the police shall not arrest a person without a warrant for an indictable offence listed in s. 553, except in certain delineated circumstances. Failure to comply with a probation order constitutes a s. 553 offence. Section 495(2) reads:

A peace officer shall not arrest a person without warrant for

(a) an indictable offence mentioned in section 553, …

in any case where

(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence, or

(iii) prevent the continuation or repetition of the offence or the commission of another offence,

may be satisfied without so arresting the person, and …

The appellant argues that none of the criteria within s. 495(2) applied to his arrest for breach of probation. Accordingly, he maintains that the failure to comply with this provision constituted another s. 9 breach.

[33] Finally, the appellant argues that, even if the police had the authority to arrest him without warrant for breach of probation, they had a duty under s. 497(1) of the Criminal Code to release him "as soon as practicable" by way of summons or appearance notice, unless the criteria within s. 497(1.1) were satisfied. To a large extent, those criteria overlap with the ones set out in s. 495(2).

[34] We do not accept these arguments.

[35] The appellant was lawfully arrested for failing to identify himself under s. 33(3) of the HTA. Although s. 33(3) allows that a person who provides his "correct name and address" will be deemed to have provided reasonable identification, the appellant did not do so until after he had already been arrested. Given the appellant's almost immediate flight upon being requested to provide his documentation, he was properly deemed to have been refusing to identify himself. In these circumstances, his arrest for failing to identify himself was entirely justified.

[36] Following the appellant's arrest, the police were involved in a serious investigation into who he was, where he lived, and who owned the vehicle he seemed so anxious to flee from. The police searched the area for about forty minutes after the appellant's apprehension to determine if he had discarded anything. Although the s. 33(3) offence was not continuing, this did not mean that the arrest under this provision had come to an end. Cst. Wilson was clear that he was uncertain who owned the vehicle and was concerned that it may have been stolen. Among other things, one of the reasons to detain under s. 149 of the POA is to prevent the commission of another offence. In this environment of uncertainty, while the investigation was continuing, it was open to the police to detain the appellant as they did.

[37] Computer checks were appropriately done. Within about thirty minutes of the appellant's apprehension, his breach of probation had been discovered. Against the factual backdrop of this case, it was open to the police to arrest the appellant on a s. 553 offence for the same reasons that justified the ongoing detention under s. 149 of the POA. These same facts also provide the rationale for detaining the appellant under s. 497(1.1). Releasing the appellant in these circumstances could have led to the continued breach of his probation or the commission of another offence.

[38] The appellant's s. 9 Charter rights were not breached. Having regard to our ss. 8 and 9 conclusions, there is no need to address the appellant's s. 24(2) arguments.

Sections 10(a) and 10(b)

[39] The appellant argues for the first time on appeal that his ss. 10(a) and (b) Charter rights were breached. We do not have the benefit of specific evidence on this point or the trial judge's ruling on the issue. It would be unfair to hear this issue for the first time on appeal without having given the Crown the ability to lay the evidentiary foundation to properly respond: R. v. Richards, 2015 ONCA 348, 323 C.C.C. (3d) 490, at para. 49. We decline to do so.

Conclusion

[40] The appeal is dismissed.

"Paul Rouleau J.A."

"Grant Huscroft J.A."

"Fairburn J.A."

[1] Although it was later discovered that the appellant's brother lived at the apartment building, none of the officers at the scene of the arrest knew this to be the case.