Court File and Parties

COURT FILE NO.: CR-14-90000307-0000 DATE: 20160420 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JOSHUA LENHARDT Accused

Counsel: Kester Yeh, for the Crown John Vaile, for the Accused

HEARD: February 8, 2016

B.A. Allen J.

Reasons for Decision on Blended Voir Dire

(Charter s. 9 arbitrary detention, s. 8 search and seizure, s. 10(b) right to counsel)

The Charges and the Proceeding

1The brief facts are that the accused, Joshua Lenhardt, was parked in a laneway in the entertainment district at around midnight on August 3, 2012 with four female passengers in a car he had rented. He was parked momentarily when police officers on bikes drove up to the driver’s side window. Mr. Lenhardt was arrested and the vehicle searched in circumstances the police allege gave them reasonable and probable grounds to detain and search Mr. Lenhardt. It is the details of the situation that faced the police the moment after they arrived at Mr. Lenhardt’s car that are in dispute and underlie whether the police had reasonable and probable grounds.

2Mr. Lenhardt is charged with possession of marijuana, possession of cocaine for the purposes of trafficking and possession of proceeds of crime. The original indictment also charged him with possession of MDMA (ecstasy) for the purpose of trafficking. However, a drug analysis did not confirm the substance to be MDMA and that charge was withdrawn.

3Mr. Lenhardt brings an application under s. 24(2) of the Charter to have the cocaine and marijuana and the proceeds excluded on the grounds of violations of his rights under s. 8, s. 9 and 10 (b) of the Charter.

4The defence re-elected a judge-alone trial and the matter proceeded by way of a blended voir dire. Both parties called witnesses on the voir dire.

5The Crown called P.C. Schulze, the officer who conducted the search and arrested Mr. Lenhardt. The Crown also called the officer-in-charge, Sgt. Geraid O’Kane, who testified in connection with an interview Crown counsel conducted with a witness outside the courtroom, which witness was subpoenaed by the Crown but called by the defence.

6The defence called Mr. Lenhardt and two of the women passengers, Edil Dualeh and Ana Montoya, on the voir dire.

7Mr. Lenhardt did not call a trial defence. Nor did the Crown call witnesses for the trial proper. The Crown adduced documentary evidence certifying the substances seized were cocaine and marijuana. The defence did not dispute this evidence and an expert was not required to testify. The defence also conceded, if I decide Mr. Lenhardt was in possession of the cocaine and marijuana that the drugs were in his possession for the purpose of trafficking. The same is the case with the money seized from the car. The defence concedes the amount of Canadian currency seized from the car was $245.19 (Cdn) and that it was obtained from crime.

Relevant Background Facts

8There are facts that are either not in dispute or not contradicted by other evidence.

9Ms. Montoya and Mr. Lenhardt were not close friends. They had met at Toronto’s Pride parade just several weeks earlier. Before August 3, 2012, Mr. Lenhardt and Ms. Montoya would text each other a couple times per week and once had dinner together.

10On August 3, Mr. Lenhardt offered to pick Ms. Montoya up at her apartment and take her and Ms. Dualeh to a concert. Mr. Lenhardt was driving a rented vehicle on the evening in question. He picked them up between 6:00 p.m. and 6:30 p.m. and dropped them at the concert. Mr. Lenhardt also offered to pick them up and drop them home after the concert if they could not get a taxi. He did pick them up after the concert. Ms. Montoya sat in the front passenger seat and Ms. Dualeh sat in the seat behind Mr. Lenhardt.

11Mr. Lenhardt drove around for a few minutes and then picked up two more women friends in the entertainment district in downtown Toronto. Those women sat in the middle back seat and the seat behind Ms. Montoya. At about 12:30 a.m. Mr. Lenhardt pulled into and parked in a back laneway near the intersection of King Street West and Charlotte Street in the entertainment district.

12Mr. Lenhardt was candid that he was a drug dealer at the time of his arrest. He testified he had a longstanding full-time unionized job in construction but dealt drugs to make extra money. He denied that any of the four female passengers were involved in buying drugs from him that evening or previously. Ms. Montoya and Ms. Dualeh testified they did not know Mr. Lenhardt was a drug dealer and did not purchase or plan to purchase drugs from Mr. Lenhardt. They were expecting Mr. Lenhardt to drive them home that evening.

13Mr. Lenhardt admitted that when he pulled into the laneway he was expecting calls or texts from clients. Mr. Lenhardt’s plan, if he got an order for drugs, was to tell the client to meet him downtown. In the meantime, he would drive the women home and return and deal with his client. Mr. Lenhardt testified the reason he parked in the laneway was to check his phone and wait for clients to call or text. He testified he was checking his cellphone when Det. Schulze and his female escort turned a corner and cycled into the laneway.

14The officers rode toward Mr. Lenhardt’s vehicle. They were wearing reflective clothing and had lights and reflectors on their bikes. Det. Schulze testified he did not recall whether the vehicle engine or lights were on. But he said there was sufficient light to see the vehicle. Ms. Montoya and Mr. Lenhardt testified the vehicle lights were on when the police approached and they could see the police approaching the vehicle.

15This is one of those cases where what happened during a fraction of a second contains the facts of whether Mr. Lenhardt’s s. 8 and s. 9 constitutional rights were violated. Det. Schulze’s motivation as he approached and his actions in the moment after he reached the vehicle are at issue.

Arbitrary Detention

Principles

16Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned.

17Courts have defined the scope of an “arbitrary detention”. The Supreme Court of Canada in R. v. Grant held for a detention not to be arbitrary it must be: (a) authorized by law and; (b) the law must itself be non-arbitrary. The authority to detain can arise at common law: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.).

18The burden falls to the defence to prove on a balance of probabilities that the accused’s s. 9 rights were violated.

19The police are authorized to detain a suspect for investigative purposes within certain parameters defined by the courts. The Supreme Court in R. v. Mann, cited below, held a police officer may briefly detain for investigative purposes where in the totality of the circumstances the officer has reasonable grounds to suspect a clear connection between the individual to be detained and a recently committed or unfolding criminal offence.

20Officers cannot operate on the basis of a mere hunch, speculation or a whim in detaining a person on an investigative detention: R. v. Mann, 2004 SCC 52 (S.C.C.). Police authority on detention extends to the preservation of peace, the prevention of crime and the protection of life and property: R. v. Dedman, 1985 SCC 41, [1985] 2 S.C.R. 2 (S.C.C.).

21A reasonable detention requires a constellation of discernible facts that give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation: R. v. Simpson (1993), 1993 ONCA 3379, 79 C.C.C. (3d) 482 (Ont. C.A.). The court must assess the reasonableness of the decision to detain in the context of all the circumstances particularly looking at: the extent to which the interference with individual liberty is necessary to the performance of the officer’s duties; the liberty interfered with; and the nature and extent of that interference: R. v. Mann, at para 19.

22R. v. Grant defines detention as that point when the state has taken explicit control over a person or when the control can be said to be exercised on a psychological level ― that point at which the person does not feel they have a choice as to whether to stay and speak to the police or leave. This is the point at which the person’s right to counsel and the opportunity to exercise that right is engaged: R. v. Grant, at para. 25.

Evidence Related to Detention

23The court must consider whether when Det. Schulze approached Mr. Lenhardt he had the threshold reasonable grounds to suspect Mr. Lenhardt was implicated in criminal activity.

24Special considerations can apply when a police detention involves a vehicle.

25On the evening of August 2, into the morning of August 3, Det. Schulze was assigned to bike detail with the TAVIS unit to do street level general investigation in the entertainment district. He actually specialized in traffic but had been assigned with TAVIS for four months at the time. He had been a police officer for five years and had done somewhere over 25 marijuana and crack investigations.

26Det. Schulze testified the entertainment district is known to the police as a high crime area where enforcement related to violent crimes and alcohol-related offences are a common reality. Officers maintain a highly visible presence there and in addition to crimes they also enforce municipal by-law and provincial offences.

27Det. Schulze said his attention was drawn to Mr. Lenhardt’s vehicle because of a parking infraction. It was parked in a laneway where no parking is allowed. It was only moments after Mr. Lenhardt parked there that Det. Schulze and his escort pulled into the laneway. They both rode up to the driver’s side window with Det. Schulze in the lead.

28Det. Schulze stated he could see five people in the vehicle as he rode up to the driver’s side window. He approached the vehicle because of his duty to enforce the parking infraction laws. Additionally, Det. Schulze stated he was concerned about alcohol infractions. As he described it, there is a practice common to many prospective patrons of the bars in the entertainment district to drink in their vehicles before they go into bars because the drinks are very expensive in the bars.

29Mr. Lenhardt testified Det. Schulze inquired about alcohol and he handed the officer an open energy drink can to prove there was no alcohol in it. Det. Schulze did not recall that exchange. Det. Schulze stated he was not drawn to the vehicle because of any noise or commotion by the occupants. It is Det. Schulze’s evidence he approached the vehicle to alert the driver about no parking and to observe if there was alcohol being consumed.

Parties’ Positions on Detention

30The defence takes the position that Mr. Lenhardt was arbitrarily detained by Det. Schulze when he approached the driver’s side window. The defence argues there was no clear connection between Mr. Lenhardt and the commission of an offence. According to the defence the police were acting on a hunch that they would find criminal activity when they approached the vehicle. This in the defence’s view made the detention of Mr. Lenhardt arbitrary and a violation of his rights.

31The Crown takes the position that the police did not require a justification for approaching the vehicle. According to the Crown, the police were operating within their enforcement obligations when they spotted the vehicle in the laneway parked in a no parking zone.

Conclusion on Detention

32The Crown relies on an Ontario Court of Appeal decision in R. v. Calder, cited below, that commented on the authority of the police in relation to circumstances involving motor vehicles.

33In that case a police officer testified he thought a vehicle was oddly parked in a lot. The officer drove onto the lot to check on the person's licence and sobriety. The officer approached the accused’s vehicle on foot and when asked the accused identified himself through his driver's licence. The officer detected a strong odour of alcohol coming from him and also saw that his eyes were bloodshot. He asked him if he had been drinking and the defendant said he had had three beers.

34The Ontario Superior Court of Justice sitting as the appellate court on the Summary Conviction Appeal in R. v. Calder held:

There is no evidence that the officer blocked off the defendant's vehicle with his cruiser in any way, nor is there any evidence that, when he was at the defendant's vehicle, he restrained or inhibited the defendant in any way. He simply asked the defendant a straightforward question about his driver's licence and, in the course of doing so, smelled alcohol, saw glassy eyes and received an admission from the accused that he had been drinking.

At that point, the officer arguably had a reasonable suspicion that the defendant had alcohol in his system, giving the officer the right under s. 254 of the Code to demand a roadside test, as he did. If a detention occurred when the demand was made it was justified under s. 254 and could hardly be called arbitrary nor could it, for that matter, lead to an argument that the roadside test somehow became an unlawful seizure within s. 8 of the Charter. [author’s italics]

[R. v. Calder, 2002 CarswellOnt 2688, at paras. 30 and 31, (Ont. S.C.J.)]

35The Ontario Court of Appeal affirming the summary conviction appeal decision made this observation:

Like the Summary Conviction Appeal Court Judge, we disagree with this analysis. The officer needed no legal authority to approach the appellant while he was sitting in his vehicle in the public parking area and he needed no legal authority to speak to the appellant. There is no evidence upon which it could be said that the appellant was detained by the officer within the meaning of detention as explained in R. v. Therens (1985), 1985 SCC 29, 18 C.C.C. (3d) 481 (S.C.C.).

[R. v. Calder, 2004 CarswellOnt 588, at para. 3, (Ont. C.A.)]

36On what constitutes detention the Supreme Court of Canada in R. v. Therens held:

In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 9 of the Charter when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.

R. v. Therens, 1985 SCC 29, [1985] 1 SCR 613, at para. 53, (S.C.C.)

37The Appeal Court’s ruling in R. v. Calder is useful to a determination in the case before me. Although the police officer had the authority based on the illegal parking to approach Mr. Lenhardt’s vehicle and speak to him, he actually did not need legal authority to approach and speak to Mr. Lenhardt while he was sitting in his vehicle in a public laneway. I find if there was a detention at this point it did not rise to what is contemplated by R. v. Therens.

38I find the defence failed to meet its burden on a balance of probabilities to demonstrate the police arbitrarily detained Mr. Lenhardt in violation of his s. 9 Charter rights.

Arrest, Search and Seizure

Principles

Search and Seizure without a Warrant

39Section 8 of the Charter provides protection from unreasonable search and seizure.

40The police conducted a warrantless search of Mr. Lenhardt’s knapsack and vehicle. The Charter protects an individual's reasonable expectation of privacy. A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search of the vehicle was carried out is reasonable. Absent a warrant a police search or seizure is presumed to be unreasonable: R. v. Collins, 1987 SCC 84, [1987] 1 S.C.R. 265, at p. 278, (S.C.C.).

41It is the Crown's burden to prove a warrantless search was reasonable.

Where a search is carried out without prior authorization in the form of a warrant, the burden is on the party seeking to justify the warrantless search to prove that it was unreasonable. Searches incident to an arrest are an established exception to the general rule that warrantless searches are prima facie unreasonable.

R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 84, (S.C.C.)

42If an officer arrests someone who it is shown by evidence was not apparently committing an offence then the arrest is invalid: R. v. Stevens (1976) CarswellNS (N.S.C.A.); R. v. M. (K.) 2004 CarswellOnt 5650 (Ont. C.J.). The police must consider all available evidence in deciding whether on reasonable and probable grounds an offence has been committed for which an arrest may be made. A search following an arrest must be related to the purpose of the arrest.

43This means the arrest itself must be lawful for the police to have the authority to conduct a search incident to the arrest. A search incident to an arrest may be conducted in order to: guarantee the safety of the police and the public; prevent the escape of a suspect; obtain evidence against a suspect; and prevent the destruction of evidence: Cloutier c. Langlois (1990), 1990 SCC 122, 53 C.C.C. (3d) 257 (S.C.C.) and R. v. Belnavis (1997), 1997 SCC 320, 118 C.C.C. (3d) 405 (S.C.C.).

Arrest without a Warrant

44Therefore, before I determine whether the search was lawful I must decide whether Det. Schulze conducted a lawful arrest of Mr. Lenhardt.

45Under s. 494(1) of the Criminal Code an officer may arrest a person without a warrant whom he finds committing an indictable offence, or who, on reasonable and probable grounds, the officer believes has committed or is about to commit an indictable criminal offence. The burden is on the Crown on a warrantless search to prove an arrest was reasonable. A decision by Murray, J., as he then was, of the Ontario Superior Court held:

Although generally an accused has the burden to prove on a balance of probabilities a violation of his s. 9 rights, where there is a search incident to an arrest and the Crown has the burden of proving the reasonableness of the search, the Crown must prove that the arrest was lawful and therefore there was no s. 9 violation.

[R. v. Deacon 2006 CarswellOnt 9217, at para. 42, (Ont. S.C.J.)]

46For an arrest to be lawful the arresting officer must subjectively have reasonable and probable grounds on which to base an arrest. The grounds must also be justifiable on an objective basis. The Supreme Court of Canada held:

In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

R. v. Storrey (1990), 1990 SCC 125, 53 C.C.C. (3d) 316, at p. 324, (S.C.C.) [author’s italics]

47The existence of reasonable and probable grounds must be based on facts known by or available to the police officer at the time he formed the requisite belief: R. v. McClelland (1995), 1995 ABCA 199, 165 A.R. 332, at para. 21, (Alta. C.A.). Logically then an arrest cannot be based retrospectively on facts disclosed after the arrest.

Evidence Related to Warrantless Arrest

48The facts surrounding Mr. Lenhardt’s arrest and the grounds, or lack thereof, for the search of his vehicle and its contents are in dispute.

Det. Schulze’s Evidence on Arrest

49Det. Schulze’s evidence similar to Mr. Lenhardt’s was that only a fraction of a second elapsed between him approaching the driver’s window until he looked into the window, ordered Mr. Lenhardt out of the vehicle and arrested him.

50Det. Schulze and his partner rode towards the front of Mr. Lenhardt’s vehicle. Det. Schulze testified that when he approached the driver’s side window he saw Mr. Lenhardt in the driver’s seat. He spoke to him. He then shone his flashlight into the vehicle toward Mr. Lenhardt’s lap and observed a small, clear, empty 1 1/2″ x 1 1/2″ Ziploc plastic baggie on Mr. Lenhardt’s lap. He described the baggie as the type used by drug dealers to package drugs.

51Det. Schulze testified the small empty baggie was among other things that gave him reasonable and probable grounds to arrest Mr. Lenhardt.

52Det. Schulze stated that with the illumination of the flashlight, he saw a regular-sized black knapsack also on Mr. Lenhardt’s lap toward the front edge of the driver’s seat near the steering wheel close to his knees. He adopted his evidence from the preliminary inquiry that the knapsack was between Mr. Lenhardt’s thighs near the steering wheel. He described the knapsack as having one large main pocket with a smaller pouch in the front. The zipper on the knapsack ran entirely around its top from one side to the other.

53Det. Schulze testified things unfolded so quickly that Mr. Lenhardt did not have time to conceal or move the knapsack before Det. Schulze reached the driver’s window. What the officer said he saw was the knapsack fully unzipped from side to side with an approximate 3″ gap between the two sides of the zipper. He described the gap as being like the space between the two sides of a clam.

54Whether the knapsack was opened or closed is a critical fact.

55Det. Schulze testified when he shone the flashlight into the opening of the knapsack he could see a green leafy substance which he believed was marijuana inside a clear plastic Ziploc baggie. Upon seeing the marijuana Det. Schulze immediately told Mr. Lenhardt he was under arrest for possession of drugs and ordered him out of the vehicle. I find it was at this point that Mr. Lenhardt was detained according to the principle set out in R. v. Therens. Det. Schulze stated that Mr. Lenhardt quickly passed the knapsack from his lap toward Ms. Montoya to the floor of the front passenger’s side as he was getting out of the vehicle after being told he was under arrest.

56When and from where Mr. Lenhardt passed the knapsack toward Ms. Montoya to the floor of the front passenger’s side are other critical facts.

57As it turned out, among other items found in the knapsack, there was 30.93 grams of marijuana separated into eight 1 1/2″ x 1 1/2″ Ziploc plastic baggies. These eight baggies were inside a larger clear plastic baggie. This is the marijuana Det. Schulze said he saw when he shone the flashlight inside the knapsack.

58Det. Schulze also found inside the knapsack what he believed was cocaine in Ziploc baggies, two digital weighing scales, and U.S. cash. He found more empty Ziploc baggies in another green bag found on the floor of the front passenger’s side. There were drug paraphernalia, other money, cellphones and other drug-related items seized from the sunglass holder, from the floor, from the console and from the trunk.

59The four women were arrested and taken to the police station but were released without charges.

60It is the Crown’s position that the observation of the marijuana through the top of the knapsack, together with the presence of the small, clear, empty baggie on Mr. Lenhardt’s lap gave Det. Schulze reasonable grounds to arrest Mr. Lenhardt.

Mr. Lenhardt’s Evidence

61As noted earlier, Mr. Lenhardt was looking at his cellphone for messages from clients when he parked in the laneway. He testified he looked up and saw the police as they turned the corner into the laneway and rode up to his window. He agreed it was only seconds from the time he saw the officers and when Det. Schulze made contact with him.

62Mr. Lenhardt testified the knapsack on his lap was between his knees up against the steering wheel before the police arrived. He said before the police arrived at his window he opened his legs and let the knapsack drop onto the floor on the driver’s side and moved his right leg to try to conceal it under the seat. He said the knapsack was not unzipped. He testified that only the small pouch in the front of the knapsack was unzipped before the police arrived and he re-zipped it before the police reached his window.

63Mr. Lenhardt stated that he tried to conceal the knapsack with his leg when the police tapped on his window. Mr. Lenhardt opened the window. He testified he knew Det. Schulze had spotted the small plastic baggie on his lap. According to Mr. Lenhardt the officer immediately told him to get out of the vehicle and told him he was under arrest. Mr. Lenhardt said he assumed he was arrested because the officer saw the small baggie.

64Mr. Lenhardt’s evidence is that the knapsack was on the driver’s side floor when the officers arrived at his window so Det. Schulze could not have seen it. Moreover, according to Mr. Lenhardt the knapsack was closed so the officer could not in any case have seen any marijuana.

65Mr. Lenhardt went on to say that before he started to step out he tried to push the knapsack over to the passenger’s side with his feet. There is a console between the driver’s side and the passenger’s side. When questioned about the movement of the knapsack, he altered his testimony and said he picked the knapsack up from under the seat on the driver’s side and slowly moved it over the console to the floor of the passenger side as he was getting out of the vehicle. He got out of the vehicle and was handcuffed and placed against a wall. He testified he heard the officer say “jackpot” and he assumed they had found the drugs in the knapsack.

Ms. Montoya’s Evidence

66Ms. Montoya was subpoenaed by the Crown but called as a witness by the defence. She said she had not seen or spoken to Mr. Lenhardt since the arrest on August 3, 2012.

67On the third day of trial, Wednesday, February 10, 2016, Ms. Montoya testified that she was texting in the vehicle when it pulled up and parked in the laneway and that she was not paying attention or talking. But she looked up and saw the police cycling toward the vehicle.

68Also at trial, she testified Mr. Lenhardt had had the knapsack between his legs and then let it drop down onto the floor under the driver’s seat when he saw the police. According to Ms. Montoya, the knapsack was not visible to the police. She said when the police arrived, Mr. Lenhardt tried to put the knapsack beside her leg on the passenger’s side but the police did not let him do this. Ms. Montoya testified the knapsack was closed. She said the police then took Mr. Lenhardt out of the vehicle.

69At the start of trial, there was an order excluding witnesses. On consent of the defence the officer-in-charge, Sgt. O’Kane, was permitted to remain in the courtroom at the Crown’s table, except if evidence was being given by another witness upon which he might be required to testify. Crown counsel did not alert the court or the defence in advance whether Sgt. O’Kane would be required to testify. Sgt. O’Kane was present in the court and heard a substantial portion of Ms. Montoya’s testimony.

70Unexpectedly, Crown counsel confronted Ms. Montoya on cross-examination with what he suggested Ms. Montoya said in an interview outside the courtroom on the first day of trial, Monday, February 8. Sgt. Geraid O’Kane was present when Crown counsel spoke to Ms. Montoya outside the courtroom.

71Crown counsel put to Ms. Montoya that on Monday he asked her where the black knapsack was when the police arrived. The Crown suggested that she said it was on the driver’s seat between Mr. Lenhardt’s legs. From the stand when that suggestion was put to her, Ms. Montoya denied saying that to Crown counsel on Monday. She testified she had said Mr. Lenhardt had dropped the bag before the police arrived.

72Crown counsel further put to Ms. Montoya on the stand that he asked whether the knapsack was opened or closed. She asserted that she said on Monday that the knapsack was closed. Crown counsel did not challenge that she had said that on Monday.

73The defence objected that Sgt. O’Kane was present during the cross-examination of Ms. Montoya. Sgt. O’Kane was asked to leave the court during the discussion on the objection. The defence objected to the evidence of the Crown’s view of the interview with Ms. Montoya coming through the Crown’s questions.

74Crown counsel acknowledged Sgt. O’Kane did not prepare notes of the interview with Ms. Montoya. Crown counsel undertook that he would call Sgt. O’Kane in reply to testify on Thursday about the interview and would request Sgt. O’Kane prepare a will-say statement that would be provided to the defence. I accepted Crown counsel’s undertaking. I indicated that I would consider Sgt. O’Kane’s presence during Ms. Montoya’s interview in weighing the credibility of his evidence.

75Crown counsel continued in his cross-examination on Wednesday to challenge Ms. Montoya, suggesting that because she had smoked a joint earlier that evening, her memory was impaired as to where the knapsack was and whether it was opened when the police arrived. Ms. Montoya at first denied that it was opened. However, the Crown continued to press Ms. Montoya urging that it is possible because of the passage of over three years and because she had smoked marijuana on the evening that her memory could be affected as to where the knapsack was when the police arrived and whether it was closed. Ms. Montoya responded, “Yes”.

76Sgt. O’Kane appeared in reply on Thursday. He testified he did not take notes during Crown counsel’s interview of Ms. Montoya because he did not have the practice of doing so when he has routinely been present during such interviews. He did not anticipate having to give evidence about the interview. He indicated he prepared a will-say statement on Wednesday evening of his best memory of what Ms. Montoya said to Crown counsel.

77Sgt. O’Kane testified Ms. Montoya told Crown counsel that the knapsack was between Mr. Lenhardt’s knees on the driver’s seat when the police arrived at the vehicle. Sgt. O’Kane testified that did not surprise him since as the officer-in-charge that is what he understood Det. Schulze’s evidence to be. Sgt. O’Kane also testified that Ms. Montoya stated that the knapsack was closed when the police arrived. He stated that this surprised him because he had understood that the evidence was that the knapsack was opened.

78Sgt. O’Kane’s evidence of what Ms. Montoya said to Crown counsel is second-hand hearsay. In Ms. Montoya’s testimony she did not adopt the evidence that the knapsack was on Mr. Lenhardt’s lap between his knees when the police arrived at the driver’s window. She denied saying that to Crown counsel. Ms. Montoya did however testify from the stand in accord with the statement that the knapsack was closed.

79I cannot accept Sgt. O’Kane’s evidence of what Ms. Montoya said about the location of the knapsack for the truth of the statement. I can however consider Sgt. O’Kane’s evidence that Ms. Montoya gave different evidence about the location of the knapsack in assessing Ms. Montoya’s credibility. Regarding whether the knapsack was closed or not I can accept the evidence about the knapsack being closed for the truth of that statement because she testified to that effect on Wednesday at trial.

80Ultimately, I will consider Ms. Montoya’s evidence about the knapsack together with all the other evidence in arriving at findings of fact.

Loss of Knapsack

81It requires mention that the knapsack was not in evidence for the trial.

82Sgt. O’Kane in his role as officer-in-charge made efforts to locate the knapsack at the police facility that houses exhibits. Det. Schulze testified that he did not transport it to the police station himself. He testified the knapsack and its contents and other exhibits were documented and photographed at the police station. The knapsack and other exhibits were placed in the evidence locker system. As I understand it, evidence stored in a division’s lockers is ultimately transported to a police central storage facility. Det. Schulze and Mr. Lenhardt identified the knapsack in several photographs made exhibits at trial.

83In deciding how to regard the lost evidence, I considered that the defence did not bring a lost evidence application seeking a stay of proceedings on the basis that the failure to disclose this evidence prejudiced the accused’s right to make full answer and defence. I also considered what I think were the police’s good faith efforts to locate the knapsack. I conclude it was lost in circumstances that did not amount to an abuse of process.

84The observations of the Supreme Court of Canada in R. v. La aptly address this issue:

This obligation to explain arises out of the duty of the Crown and the police to preserve the fruits of the investigation. The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant. Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe (No. 2), supra, recognizes this unfortunate fact. Where the Crown’s explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.

R. v. La, 1997 SCC 309, [1997] 2 S.C.R. 680, at para. 20, (S.C.C.)

85Although it would have been preferable to have the actual knapsack in court, I found the photographs clear enough to be useful to the court in supporting witnesses’ oral testimony about the knapsack. I draw no adverse impressions in relation to the police from the loss of the knapsack.

Conclusion on Lawfulness of the Arrest

86What we are looking at in this case, as is the situation in many cases of police arrests, is a dynamic and fast-paced scenario. Factual findings on the detention, arrest and search in this case rest on telescoping in on what occurred in a second or fraction of a second after Det. Schulze made contact with Mr. Lenhardt. This demands a careful scrutiny of the facts.

87Credibility and the burden of proof are central in the analysis of the facts in this case. As discussed earlier, the Crown has the burden on the balance of probabilities to prove the warrantless arrest was lawful. The Crown must establish Det. Schulze both subjectively, and on an objective basis, had a reasonable belief that Mr. Lenhardt was committing a crime when he arrested him. I must determine on the civil standard whether I accept Det. Schulze’s or Mr. Lenhardt’s and Ms. Montoya’s evidence as to where the knapsack was and whether or not it was closed when Det. Schulze arrived at the window of the vehicle.

88Code, J. of the Ontario Superior Court commented on the burden of proof when there is a credibility contest with respect to the only evidence that could establish whether or not an arrest was lawful. This is the situation facing the court in the case at hand. Code, J. held:

The burden of proof must be borne in mind, when deciding the central issue of credibility in the case because the evidentiary dispute between the parties relates to the very existence of the only event that could provide sufficient ground to arrest.

R. v. Haye, 2013 ONSC 1208, [2013] O.J. No. 959, at para. 46, (Ont. S.C.J.)

89Code, J. went on to cite a pertinent passage from the Supreme Court of Canada in R. v. Collins:

The standard of persuasion required is only the civil standard of the balance of probabilities and, because of this, the allocation of the burden of persuasion means only that, in a case where the evidence does not establish whether or not the appellant’s rights were infringed, the court must conclude that they were not.

R. v. Haye, at para. 46, as quoted from R. v. Collins (1987), 1987 SCC 84, 33 C.C.C. (3d) 1, at p.14, (S.C.C.)

90The civil burden in this case requires a determination of whether the Crown has proven it is more likely than not that the knapsack was opened on Mr. Lenhardt’s lap when Det. Schulze arrived at the driver’s side window. Det. Schulze formed his reasonable and probable grounds to arrest based principally on seeing the marijuana through the opening in the knapsack and, less importantly, on the small, empty Ziploc baggie he saw on Mr. Lenhardt’s lap.

91I find the balance tips in favour of the Crown. I was influenced in that conclusion for a number of reasons. In examining the facts, I see that the evidentiary foundations for where the knapsack was located and whether it was opened or closed involve different factual considerations.

92Regarding where the knapsack was situated, I am persuaded by the fact that Det. Schulze and Mr. Lenhardt and Ms. Montoya made nearly identical descriptions of where the knapsack had been situated before the police arrived. They each described the knapsack as having been on Mr. Lenhardt’s lap, near the steering wheel, between his knees/thighs. In connection with the similarity between Det. Schulze’s description and that of the defence witnesses, I considered that the police, as I understand it, did not obtain statements from Mr. Lenhardt or Ms. Montoya from which Det. Schulze might have learned their accounts of where the knapsack was situated.

93The descriptions from the three witnesses as to where the knapsack was are very specific and virtually identical. The defence witnesses say the knapsack ended up from his lap on the floor of the driver’s side out of the sight of the officer when he arrived. I have some doubt about this.

94I find it would be stretching the bounds of happenstance for Det. Schulze to have described the location of the knapsack as being in the same place as the other witnesses if he had not seen it on Mr. Lenhardt’s lap, near the steering wheel between his thighs when he arrived at the window. His evidence was the same at the preliminary inquiry on September 20, 2013.

95I find in this regard that Det. Schulz’s evidence is more credible than that of the defence witnesses.

96I also have some doubt about another area of Mr. Lenhardt’s and Ms. Montoya’s evidence.

97Mr. Lenhardt’s evidence, supported by Ms. Montoya’s, was that he placed the knapsack under the driver’s seat out of the sight of the officer and attempted to hide it there with his right leg. He said he moved the knapsack to the passenger side floor when he saw the police before the police got to the driver’s window. Mr. Lenhardt testified, in doing so, he had to lift the knapsack from its hiding place under the seat over the console to place it on the floor of the passenger’s side. I find it difficult to understand why Mr. Lenhardt would make this move and take the knapsack out of hiding to a spot where the police would be able to see it. This does not make sense.

98I find Det. Schulze’s evidence to be more plausible than that of the defence witnesses − that he saw the knapsack on Mr. Lenhardt’s lap when he arrived at the window with his flashlight on and saw him move it to the floor of the passenger’s side.

99In arriving at that finding, I also take into account Ms. Montoya’s concession that with the passage of over three years, and the fact she had smoked a joint, it is possible she was in error as to where the bag was situated when the police arrived.

100A finding on a balance of probabilities requires only a finding of more likely than not. For the reasons I have cited I am sufficiently satisfied on all the evidence it is more likely than not that Det. Schulze saw the knapsack on Mr. Lenhardt’s lap when he shone the light into the vehicle’s window.

101Whether the knapsack was opened or closed is most critical to a determination of whether Det. Schulze had reasonable and probable grounds to arrest Mr. Lenhardt. Naturally, if the knapsack was closed he would not have seen the marijuana and would have arrested Mr. Lenhardt unlawfully since I do not find the small, empty plastic baggie alone would give him reasonable grounds. I must on the totality of the evidence, on the civil standard, balance Det. Schulze’s evidence against that of Mr. Lenhardt and Ms. Montoya.

102I find on the totality of the evidence that the knapsack on Mr. Lenhardt’s lap more likely than not was opened when Det. Schulze shone the flashlight into the vehicle. I base my conclusion on several areas of evidence.

103I again looked at Ms. Montoya’s concession that due to the passage of time and having smoked a joint she might have been mistaken as to whether the knapsack was closed. Although she stated in the out-of-court interview by the Crown and on the stand that it was closed, her equivocation raised some doubt in my mind about the knapsack being closed. In arriving at that conclusion, I considered the adverse effect on her credibility of her implausible evidence about Mr. Lenhardt moving the knapsack and where the knapsack was when the police arrived.

104I have considered that evidence within the broader factual context.

105Mr. Lenhardt admitted he was a drug dealer and that he was planning to sell drugs to clients that evening. He was on his cellphone checking for phone calls and texts from clients when the police arrived. From the time the police were spotted riding towards the vehicle and when they arrived at the vehicle only a fraction of a second had elapsed. The police arrived quickly and unexpectedly. Mr. Lenhardt was found with a small empty baggie on his lap, the kind he had inside the knapsack containing drugs.

106I find it can be reasonably inferred that Mr. Lenhardt had opened the knapsack on his lap and removed a baggie and was quickly taken by surprise by the police, not giving him time to remove the baggie from his lap and close the knapsack.

107Mr. Lenhardt said he had the small pocket to the knapsack opened before the police arrived but he zipped it back before Det. Schulze came to the window. I find it not an unreasonable likelihood that he also had the top zipper opened and did not have the opportunity to close it or conceal the small baggie before the police arrived. It makes sense that this is why as he was getting out of the vehicle he quickly passed the knapsack to Ms. Montoya to try to conceal the open knapsack.

108A balance of probabilities standard only requires the Crown to prove more likely than not that the knapsack was opened. I am sufficiently satisfied that more likely than not the knapsack was opened when Det. Schulze arrived at the window.

109I find the facts surrounding the detention and arrest of Mr. Lenhardt do not pose the same concern as discussed in R. v. Collins and R. v. Hayes where there was an absence of evidentiary foundation to prove whether or not the arrest was lawful. As I believe I have demonstrated, there is a sufficient evidentiary foundation to establish on a balance of probabilities that the arrest was lawful.

Warrantless Search and Seizure

110I found Mr. Lenhardt was not detained when Det. Schulze first approached the vehicle. I find he was detained when Det. Schulze ordered him out of the vehicle and told him he was under arrest. Det. Schulze saw the marijuana in the opened knapsack and the small baggie before he detained him. At law he had reasonable cause to suspect that Mr. Lenhardt was involved in criminal activity. The detention was not arbitrary. The same facts gave Det. Schulze reasonable grounds to lawfully arrest Mr. Lenhardt.

111On a warrantless search the Crown has the onus on a balance of probabilities to prove the search was reasonable. I find the Crown has met this onus.

112Det. Schulze testified he conducted a search of the contents of the knapsack and vehicle incident to a lawful arrest. I find the arrest was in accord with the law. As discussed earlier, following a lawful arrest the police are permitted to conduct a search incident to an arrest. The search must be reasonable. I find the search was reasonable following as it did upon a lawful arrest. The search was necessary to ensure the safety of the police and the public, to obtain evidence against Mr. Lenhardt and to prevent the destruction of evidence. And there is no evidence before the court that the manner in which the search of the vehicle and its contents was conducted was unreasonable. I also considered that Mr. Lenhardt’s expectation of privacy in a rented vehicle would not be as great as it would be with a privately owned vehicle.

113I find in the result that the search and seizure of the cocaine, marijuana and Canadian currency was reasonable. I conclude Mr. Lenhardt’s s. 8 Charter rights were not violated.

Right to Counsel

114The defence asserted in its application that Mr. Lenhardt’s right to counsel under s. 10(b) of the Charter was violated. Under the Charter an accused is entitled to be advised of their right to counsel without delay.

115The defence adduced little evidence on this issue. Defence counsel did not question the police about giving rights to counsel to Mr. Lenhardt.

116The limited evidence available was from Mr. Lenhardt. He testified he arrived at the 52 Division between 2:00 a.m. – 2:30 a.m. He was taken to an interview room for questioning but the only thing he would say was “lawyer, lawyer”. As he is entitled to, he exercised his right not to speak to the police. He was taken to a cell for about an hour. He testified he was not allowed to speak to counsel until 8:00 a.m. One of the safeguards afforded by this right is protection from making self-incriminating statements without the advice of counsel. Mr. Lenhardt made no statements, inculpatory or otherwise, according to his evidence.

117It is the defence’s burden on a balance of probabilities to prove a violation of the right to counsel: R. v. Cobham, 1994 SCC 69, [1994] 3 S.C.R. 360 (S.C.C.). The evidence suggests there was a delay in affording Mr. Lenhardt his rights to counsel and to remain silent. My words should not be interpreted as excusing any delay that might have occurred. The police have a clear Charter obligation. But assuming there was delay, I find any prejudice from the delay would be minimal in that Mr. Lenhardt made no self-incriminating statements and did get an opportunity to speak to a lawyer.

118I find any prejudice to his rights would not be of such a serious nature as to be sufficient to result in an exclusion of the drugs and proceeds.

Disposition on Voir Dire

119The 11.17 grams of cocaine, 30.93 grams of marijuana and currency in the amount of $245.19 (Cdn) is admitted at trial.

Conclusion on Trial

120In the result, I find Mr. Lenhardt was in possession of cocaine and marijuana for the purpose of trafficking and in possession of proceeds obtained from crime.

Verdict

121I am satisfied the Crown has proven Joshua Lenhardt’s guilt beyond a reasonable doubt of the offences on counts 1, 3 and 4 on the indictment.

122I therefore find Joshua Lenhardt guilty on counts 1, 3 and 4 on the indictment and convictions will be entered accordingly.

B.A. ALLEN J.

Released: April 20, 2016