Court File and Parties

Ontario Court of Justice

Date: 2014-12-18

Court File No.: Brampton 3111 998 14 8790

Between:

Her Majesty the Queen

— and —

Mr. Emmanuel Ramocan

Before: Justice P. F. Band

Heard on: July 23, October 8, October 31 and December 3, 2014

Reasons for Judgment released on: December 18, 2014

Counsel:

• Ms. C. Letman, counsel for the Crown
• Mr. D. Maio, counsel for the accused Mr. Emmanuel Ramocan

Band, J.

INTRODUCTION

[1] Mr. Ramocan was arrested after police stopped the car in which he was a passenger and found him in possession of approximately 24 grams of crack cocaine and other narcotics. PCs Gauvreau and McAuley's intentions were to investigate, based on their suspicions that they had seen the passenger engage in a hand-to-hand drug transaction some 15-20 minutes earlier at a known drug house. PCs Osborne and Lobo arrived at the scene during a short time after PCs McAuley and Gauvreau.

[2] After a very brief interaction with Mr. Ramocan, PC McAuley pulled Mr. Ramocan out of the passenger side of the car, threw him to the ground and placed him in handcuffs. PC McAuley did so out of a stated concern for "officer safety." In the process, Mr. Ramocan's loose-fitting jeans had dropped below his buttocks, exposing what PC McAuley described as a bulge in the back of his boxer shorts. PC McAuley seized the bulge, which was a bunch of plastic containing what he believed to be narcotics. He arrested Mr. Ramocan at that time, and informed him of his rights.

[3] It was later confirmed that the bulge contained crack cocaine, marijuana and oxycodone.

The Issues

[4] There is no dispute that the substances seized were narcotics. There is some dispute as to whether the quantity of crack cocaine warrants a finding that it was possessed for the purpose of trafficking.

[5] But the central and preliminary issue in this case is whether PC McAuley's actions infringed on Mr. Ramocan's s. 8, 9 and 10(b) Charter rights and, if so, whether the evidence he seized ought nonetheless to be admitted into evidence.

[6] For the purposes of these reasons, I take the evidence of the officers at its highest, despite some potentially important discrepancies (such as whether the "hand to hand" occurred at the driver's side or the passenger side of the Honda).

[7] In particular, I take PC McAuley's evidence at face value. That is to say I accept that PC McAuley believed that his decision to detain and investigate Mr. Ramocan was based on a reasonable suspicion that Mr. Ramocan had engaged in drug trafficking. I also accept, without deciding, that PC McAuley's suspicion was objectively reasonable in the circumstances.

[8] As I told counsel during their argument, I found most of PC Lobo's evidence unhelpful. It was apparent that he had little to no independent recollection of the events. He was unable to respond to numerous questions due to lack of recall. When he could respond, he frequently qualified his answers with phrases such as "I believe" and "I don't believe." In other instances, he based his responses on assumptions or phrased them in the conditional tense – that is, "could have", "would have" or their negatives.

[9] What is more, he testified that he had very little involvement in the events surrounding Mr. Ramocan's arrest. Nonetheless, he categorically acknowledged that Mr. Ramocan was thrown to the ground. PC McAuley acknowledged as much in cross-examination.

[10] My analysis requires some fleshing out of the facts. They are as follows.

FACTS

Observations Prior to Following the Honda

[11] Based on intelligence from PC Osborne, the four officers decided to set up observations of a known drug house shortly after 12:30 a.m. on March 2, 2014.

[12] The officers saw what they believed was consistent with a "hand to hand" drug transaction between the passenger side of a Honda and a person who had come out of a house the residents of which were known to police as drug users. Once this very brief interaction ended, PCs McAuley and Gauvreau followed the Honda in their police car. PCs Osborne and Lobo followed in theirs.

Observations Made While Following the Honda

[13] At one point, the Honda went through a McDonald's drive-through. PCs McAuley and Gauvreau lost sight of it for a short time, and spotted it again leaving the parking lot. A short time later, the Honda did a U-Turn that PCs McAuley and Gauvreau characterized as a "heat check" – a maneuver designed to determine whether one is being followed by police.

[14] While the intention had been to stop the Honda all along, this maneuver prompted the stop. It was not a traffic stop under the Highway Traffic Act and PC McAuley did not have reasonable and probable grounds to arrest.

[15] According to PC Osborne, it was "around 1:00 a.m." According to PC McAuley, it was "just before 1:00 a.m."

[16] By this time, the officers had followed the Honda for 15-20 minutes.

[17] The Honda had come to a stop properly and without incident.

Detention and Arrest

[18] PCs McAuley and Gauvreau's purpose was to investigate its occupants in relation to suspected drug offences. They had not sought information about the Honda and did not know the identity of its occupants or the individual who had come out of the house.

[19] The plan, according to PC Gauvreau, was that he would go to the driver's side and PC McAuley would go to the passenger side. According to PC McAuley, this was the sum total of the discussion between them about how the investigation would unfold.

[20] PC McAuley walked to the passenger side of the Honda. The first words he spoke to Mr. Ramocan were to tell him to get out of the car. He then informed him that he was being detained "for a CDSA investigation." Mr. Ramocan refused and asked "why?" PC McAuley told him again that he was being investigated for drug offences and asked him to get out of the car. Again Mr. Ramocan refused.

[21] PC McAuley opened the door and told Mr. Ramocan to get out. Mr. Ramocan was fidgety – he was moving around in his seat, slouching down, sitting up and moving from side to side.

[22] According to PC McAuley, Mr. Ramocan was adamant about staying in the car.

[23] So PC McAuley grabbed him and threw him to the ground. He then discovered the "bulge", seized the package and arrested Mr. Ramocan.

[24] By the time PC McAuley had done so, PC Gauvreau had only had time to advise the driver that he was being detained and ask him about their McDonald's stop.

[25] According to PC McAuley and PC Lobo, the arrest took place at 1:00 a.m.

[26] PC McAuley wanted Mr. Ramocan to get out of the car out of concerns for his own safety. In cross-examination, PC McAuley acknowledged that Mr. Ramocan was under no obligation to cooperate or get out of the car. However, he explained that in this situation, when investigating for drugs based on the house Mr. Ramocan was at, the u-turn, his adamancy at not getting out of the car, PC McAuley's priority is safety.

[27] "If I'm not 100% sure I'm safe, I'll bring him out and detain him" he said.

[28] PC McAuley testified that Mr. Ramocan was detained as soon as the car was pulled over. He was not free to go. PC McAuley said that he "wouldn't have advised" Mr. Ramocan "of his right to legal advice at that point." Nor did he ask Mr. Ramocan his name or tell him that he did not have to cooperate.

[29] When advised of his rights, Mr. Ramocan told PC McAuley the name of his lawyer. PC McAuley testified that he wrote down the lawyer's name, but did not take it upon himself to contact him for Mr. Ramocan. He did not call duty counsel either. While he sat as the scribe for the interview that followed at the station, PC McAuley did not recall whether Mr. Ramocan had said he wanted to talk to a lawyer. Nor did he recall whether Mr. Ramocan had been given a chance to speak to a lawyer.

[30] The parties provided me with the following agreed statement of fact:

[31] Police were unable to reach Mr. Ramocan's counsel of choice before interviewing him. The interview took place at 2:48 a.m. Efforts to contact duty counsel were not made until 3:10 a.m., after the interview had finished.

LEGAL PRINCIPLES AND ANALYSIS

[32] Even though PCs Osborne and Lobo believed that the reason for stopping Mr. Ramocan and the driver was to arrest them based on reasonable and probable grounds, the Crown sought to support PC McAuley's actions on his own stated purpose: investigative detention based on reasonable suspicion.

[33] Given the subjective belief required for investigative detention, the Crown's approach is both fair and proper and it is on this basis that I have analyzed the issues in this case.

[34] The Crown argues that PC McAuley's safety concerns permitted him to remove Mr. Ramocan from the Honda and ground him. They also permitted him to delay advising Mr. Ramocan of his right to counsel.

[35] She further argues that because the bulge came into view in the course of Mr. Ramocan's lawful removal from the car, s. 8 concerns do not arise.

[36] In the alternative, if PC McAuley's actions violated Mr. Ramocan's rights, the Crown submits that the intrusion was fleeting and that PC McAuley had to act "on the sudden." There being no evidence of bad faith, she urges me to conclude that the good repute of the administration of justice requires that the evidence be admitted.

[37] The Defence urges me to find that Mr. Ramocan's rights were violated in a flagrant and egregious manner and that the evidence ought to be excluded.

[38] In my view, this case can be resolved simply on the fact that what took place was not an investigative detention and safety search, but a de facto arrest based on insufficient grounds. And a forceful one at that.

[39] Mr. Ramocan was detained the moment the Honda was stopped. The dialogue that ensued began with a demand that he get out of the car. When he refused to cooperate, he was taken out of the car by force, and thrown to the ground.

[40] On all accounts, the interaction was exceedingly brief. The Crown submitted that it took place in the space of seconds.

[41] Prior to arresting Mr. Ramocan, PC McAuley did not ask him a single question – not even his name. Moreover, none of his actions prior to seizing the bulge can reasonably be described as investigation.

[42] Officers must be able to articulate their grounds for detaining or arresting people, and to know the difference between the two.

[43] I accept that police are involved in situations that are fluid and which call for some flexibility. However, where the circumstances are not urgent or matters of public safety, it is not unreasonable to also expect them to have at least a rudimentary investigative plan in mind when embarking on an investigative detention, and to be able to articulate it at trial.

[44] The evidence in this case demonstrates that PC McAuley did not do so. Despite his belief that he was operating under the rubric of investigative detention, there is nothing to distinguish his actions from an arrest.

[45] I believe that this is the type of scenario that animated Justice Iacobucci's concerns 10 years ago, in R. v. Mann, 2004 SCC 52, at paragraph 35, where he wrote that "the power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest."

[46] Nonetheless, given the stakes and the parties' careful written and oral submissions, I propose to analyse the case on the terms the Crown has put forward: that PC McAuley engaged in a lawful investigative detention that gave rise to the need to remove and search Mr. Ramocan for safety reasons.

[47] My s. 24(2) analysis will follow.

Did PC McAuley Have Sufficient Grounds to Conduct a Safety Search?

[48] The police powers of arrest and investigative detention are conceptually distinct.

[49] Police have the power to search incident to arrest. This power is extraordinary and subject to limitations because it does not require a warrant or even reasonable and probable grounds.

[50] In contrast, there is no general power to search incident to investigative detention.

[51] This issue was also addressed by the Supreme Court in Mann, supra, at paragraphs 36-45.

[52] Pat-down and safety searches in the context of investigative detention must be based on reasonable grounds. "They cannot be justified on the basis of a vague or non-existent concern for safety."

[53] In this case, I find that PC McAuley's concerns for his safety were not based on reasonable and objectively discernable facts.

[54] He and PC Gauvreau observed what might have been a drug transaction, and then calmly followed the Honda for some 20 minutes. While there might have been a "heat check," the Honda did not appear to attempt to evade police and the ensuing stop was unremarkable.

[55] This was not an urgent or dynamic situation.

[56] PC McAuley knew nothing about Mr. Ramocan's background that would give rise to concerns about risk. Nor, in my view, did Mr. Ramocan's fidgeting and so-called adamancy give rise to safety concerns. To the contrary, while Mr. Ramocan's behavior was perhaps less than pleasant, it was consistent with the exercise of his constitutional rights at the time.

[57] I pause here to note that PC Gauvreau had made similar observations of the driver, whom he believed had lied to him. Yet he did not raise any safety concerns warranting a protective search.

[58] I also add that the facts in this case bear no resemblance to those in R. v. MacDonald, 2014 SCC 3 and R. v. Cadienhead, 2014 ONSC 5816, which were filed by Crown counsel.

[59] I find that the safety search was not authorized by law.

[60] But even if PC McAuley's grounds were reasonable, and the search authorized by law, the manner in which he conducted himself was not. Rather than asking Mr. Ramocan additional questions or asking him to place his hands on the dashboard, he pulled him out of the car and threw him to the ground, completely exposing his underwear.

[61] This was a highly intrusive procedure that deprived Mr. Ramocan of his freedom of choice and movement, and culminated in a violation of his privacy in a manner that far exceeded an intrusion reasonably designed to locate weapons.

Was PC McAuley Entitled to Delay Informing Mr. Ramocan of His Right to Counsel?

[62] Five years ago, in R. v. Suberu, 2009 SCC 33, at paragraph 42, the Supreme Court of Canada said that

Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

[63] As the Supreme Court recently reminded us in R. v. Taylor, 2014 SCC 50, at paragraph 26:

Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence. (emphasis added)

[64] In Suberu, at paragraphs 40 and following, the Court explained that the purpose of the right to counsel at this stage is to

ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy.

Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

[65] Those risks "are present as soon as a detention is effected."

[66] Mr. Ramocan was not advised of his right to counsel immediately upon detention and was not given access to counsel until after he was interviewed more than 2 hours later. He was vulnerable to the exercise of police power and in legal jeopardy. During this time, police also took significant steps to find and elicit evidence.

[67] There were no safety concerns sufficient to allow PC McAuley to delay advising Mr. Ramocan of the right to counsel.

Did PC McAuley's Actions Constitute a Search and Seizure?

[68] Much like in R. v. Simpson, the entire transaction that took place from the moment Mr. Ramocan was first questioned to the time that PC McAuley reached into his underwear to remove the bulge constituted a search.

[69] It was a warrantless search that was not otherwise authorized by law and it was conducted in an unreasonable manner.

Should the Evidence be Excluded?

[70] In determining whether to exclude or admit evidence, the court must have in mind the long-term impact of doing so on the administration of justice. In coming to this determination, the court should inquire into the following factors:

1. The seriousness of the Charter-infringing state conduct;
2. The impact on the Charter-protected interests of the accused; and
3. Society's interest in adjudication on the merits.

1. Seriousness of the Charter-infringing state conduct

[71] I have found that PC McAuley's actions breached Mr. Ramocan's s. 8 and 10(b) rights.

[72] While I do not find that PC McAuley acted in bad faith in this case, I do find that his conduct was based on a profound misunderstanding of the powers and duties that he had in the context of an investigative detention.

[73] First, as he put it, "If I'm not 100% sure I'm safe, I'll bring him out and detain him."

[74] PC McAuley's understanding seems to be that a safety search is justified where there is no evidence that he is 100% safe. This understanding is not only contrary to the law, but can easily lend itself to abuse of police power.

[75] I am also troubled by the fact that PC McAuley approached this investigative detention without any apparent plan, and then quickly decided to forcefully remove and throw Mr. Ramocan to the ground.

[76] The evidence also shows that PC McAuley does not understand the right to counsel in the context of investigative detention. His evidence was not that he delayed on advising Mr. Ramocan of his right to counsel because of safety concerns. Rather, it was simply that he "wouldn't have advised him" of his rights immediately upon pulling the Honda over – that is, before Mr. Ramocan had become fidgety or showed a firm intention to remain silent and in the car.

[77] Also, PC McAuley's evidence that he did not take it upon himself to contact counsel for Mr. Ramocan, and that he did not recall whether Mr. Ramocan had exercised his right to counsel by the time he took part in an interview that PC McAuley himself was scribing is cause for concern.

[78] In its totality, PC McAuley's conduct tends to demonstrate an indifference toward a number of constitutional standards. I would add here, as the Superior Court found in R. v. Davidson, 2010 ONSC 1508, that "there is no longer a legal uncertainty regarding investigative detention such that an unlawful search can be justified."

[79] This factor weighs heavily in favour of exclusion of the evidence.

2. Impact on the Charter-protected interest of the accused

[80] PC McAuley performed a de facto arrest and search of Mr. Ramocan, both without reasonable and probable grounds. He deprived Mr. Ramocan of the right to choose whether or not to comply with the investigation as well as his right to retain and instruct counsel without delay. He threw Mr. Ramocan to the ground, immobilized him and seized an item from inside his boxer shorts.

[81] The interference with Mr. Ramocan's rights was not trivial or technical, but significant. See R. v. Quincy, 2012 ONCA 225, at paragraph 25.

[82] While it may be true that there was a basis to detain Mr. Ramocan, the interference I have described remains significant: see Quincy, supra, at paragraph 28, and R. v. Palmer, 2014 ONSC 5839, at paragraph 33.

[83] This factor weighs heavily in favour of exclusion of the evidence.

3. Society's interest in adjudication on the merits

[84] The relevant inquiry at this stage is whether the truth-seeking function of the trial process would be better served by admission or exclusion of the evidence. The seriousness of the case, the reliability of the evidence and its importance to the prosecution are important factors. At the same time, I am mindful of the fact that the seriousness of the offence ought not to take on disproportionate significance: R. v. Harrison, 2009 SCC 34.

[85] Possession of crack cocaine for purposes of trafficking is a very serious offence and the drugs seized are central to the prosecution's ability to prove its case.

[86] These factors weigh in favour of admission of evidence.

Balancing the Factors

[87] In its task of determining whether the administration of justice will be better served by admission or exclusion of evidence, the court's focus must be on the long-term effect on the public's confidence in the justice system.

[88] In Mann, at paragraph 37, the Supreme Court made it clear that the existence of the power to detain for investigative purposes does not give license to officers to reap the seeds of a warrantless search without the need to effect a lawful arrest based on reasonable and probable grounds.

[89] To admit the evidence in this case would be to do just that.

[90] Having balanced the factors above, I am satisfied that a reasonable person, informed of the relevant facts and Charter values would conclude that the admission of the evidence in this case would bring the administration of justice into disrepute.

[91] There being no admissible evidence of a criminal offence, Mr. Ramocan is therefore entitled to an acquittal on all counts.

Released: December 18, 2014

Justice P. F. Band