COURT FILE NO.: CR-15-14021 DATE: 20160728 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Crown/Respondent – and – JEFFREY FERGUSON-CADORE – and – BEVERLY ANN O’GRADY Defendants/Applicants

Paul Greenway, for the Crown/Respondent Paul Aubin, for the Defendant/Applicant Jeffrey Ferguson-Cadore Jonathan M. Pyzer, for the Defendant/Applicant Beverley Ann O’Grady

HEARD: June 16, 2016

CHARTER RULING

CHARNEY J.:

Introduction

[1] The applicants Beverley Ann O’Grady and Jeffrey Ferguson-Cadore were jointly charged with four counts of possessing controlled substances for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c.19. The charges relate to the possession of marijuana, MDMA, Cocaine and Oxycocet.

[2] All of the charges arise out of a traffic stop that occurred on Sunday, September 14, 2014 at approximately 3:30 in the afternoon.

[3] The applicants have brought an application for an order under s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence obtained by the police against them on the grounds that the applicants’ rights as guaranteed under ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms were infringed.

[4] Given the exigencies of time I provided oral reasons for my decision to allow the application on June 16, 2016, and indicated that I would provide more detailed written reasons at a later date. These are my written reasons.

Background Facts

[5] On September 14, 2014, PC MacKinnon of the Durham Regional Police Service (DRPS) was in uniform, operating a marked cruiser westbound on Hwy. #2 in Whitby. He was coming to the end of his shift, and was on his way to refuel his cruiser before going home. At a “T” intersection on Lupin Drive, he noted a silver 4-door motor vehicle waiting to exit the parking lot of the Canadiana Motel at 3:22 p.m.

[6] PC MacKinnon noted that a “young looking white female” was in the driver’s seat and a black male was seated in the front passenger seat. From his past experience in the vice unit he had knowledge that this motel is known to be frequented by “escorts and their pimps”, and that “some of these women are exploited and controlled by the pimps, often through violence and intimidation”. He was concerned for the safety of the female driver of the vehicle because it was possible that she was a prostitute in the company of her pimp. At that point the only basis for this suspicion was the fact that the female was young and white, that the male companion was black, and that they were leaving the parking lot of the Canadiana Motel. He acknowledged on cross-examination that most of the motel patrons are law abiding and not involved in prostitution.

[7] His arrest report indicates that he made a u-turn and caught up with the vehicle at Glen Hill Dr. At that point he ran the licence plate through the Plate and Registration Information System (PARIS) system. The return indicated that the registered owner of the vehicle was a female born in 1965. Neither the driver nor the passenger matched the description of the registered owner.

[8] PC MacKinnon testified that he turned on his siren and stopped the vehicle at 3:28 p.m. at the Whitby Mall, approximately 1.5 to 2 km. away from the motel. He acknowledged that the vehicle was not speeding or driving erratically, and that he had no road safety concerns under the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) when he stopped the vehicle.

[9] His arrest report sets out two reasons for stopping the vehicle. PC MacKinnon confirmed these reasons in his testimony on the voir dire. He stated that his primary reason for stopping the car was the fact that the driver and the passenger did not match the registered owner. He stated that his secondary reason for stopping the car was his “safety concerns for the young female driver who exited an area known for prostitution and drugs”.

[10] After stopping the car PC Mackinnon testified that he approached the driver’s side and O’Grady rolled down the window half way. He could immediately smell a strong odour of burnt and green marijuana. He also claims to have seen ash on the centre console and gearshift. He asked O’Grady for the vehicle documentation and her driver’s licence. He asked her who the registered owner of the vehicle was and she explained that it was her mother’s car. She asked why he stopped her and he replied that she did not look like she was born in 1965. He asked her to step out of the vehicle and cautioned her and said that he could smell marijuana smoke coming from the car.

[11] PC MacKinnon asked O’Grady who the passenger was and O’Grady replied that it was her boyfriend. He asked her if she was an escort and whether he would find her photo posted in “Backpage”, a website that has ads for escorts. He asked her why she was at the Canadiana Motel, and she explained that she was checking out the hotel for a party and was looking for rooms for friends.

[12] PC Mackinnon called for backup and when the other police officers arrived at 3:45 p.m. he approached the passenger side and asked Ferguson-Cadore to exit the vehicle. He searched the car and found marijuana at 3:57 p.m., at which point PC Hartry (the officer who came as backup) advised O’Grady that she was under arrest for possession of marijuana. O’Grady was then handcuffed, searched and placed in the cruiser and read her right to counsel and cautioned. She asked to speak to duty counsel.

[13] Also at 3:57 p.m. PC MacKinnon arrested Ferguson-Cadore for possession of a controlled substance and read him his right to counsel. He was handcuffed and placed in the rear of the cruiser. He indicated that he wanted a lawyer.

[14] Prior to 3:57 p.m. neither O’Grady nor Ferguson-Cadore were advised why they were being detained, even though PC MacKinnon stated that he smelled the marijuana when he stopped the vehicle at 3:28.

[15] PC MacKinnon and PC Hartry continued to search the car, and found a digital scale with white residue and powder that he believed to be cocaine, 10 tabs of Oxycocet, 4.3 grams of crack cocaine and 7 grams of powder cocaine, in addition to 25.2 grams of marijuana. He advised Ferguson-Cadore that he was going to be arrested for possession for the purposes of trafficking and cautioned him at that time.

Analysis

[16] The Crown concedes that the applicants’ were detained at 3:28 p.m. when the vehicle was stopped, and that the applicants’ rights under s. 10(a) (right to be informed promptly of the reason for detention) and 10(b) (right to retain and instruct counsel without delay) were infringed in this case. He acknowledges that O’Grady’s rights were delayed until she was read her rights by PC Hartry at 3:57 p.m. and that Ferguson-Cadore was not advised until 3:45 p.m. that he was being detained so that the vehicle could be searched for drugs.

[17] The Crown argues that there was no violation of s. 9 or 8 of the Charter. He argues that PC MacKinnon was authorized to stop the car pursuant to s. 216(1) of the HTA because the primary reason for the traffic stop was to confirm the identity of the driver given the fact that the driver appeared younger than the registered owner of the vehicle.

[18] Section 216(1) of the HTA states:

A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

[19] The Crown argues that this purpose (confirming the identity of the driver) is consistent with the statutory authority granted by s. 216(1) of the HTA, which authorizes the police to stop a vehicle even in the absence of reasonable grounds to believe that an offence is being committed. The constitutional validity of what is now s. 216(1) of the HTA was upheld by the Supreme Court of Canada in R. v. Ladouceur, 1990 SCC 108, [1990] 1 S.C.R. 1257, which held that routine random vehicle checks were justified under Charter s.1.

[20] The Crown further argues that the search of the motor vehicle was a lawful search incident to a valid arrest.

[21] In Brown v. Durham Regional Police Force (1998), 1998 ONCA 7198, 43 O.R. (3d) 223 (C.A.) the Court of Appeal recognized that s. 216(1) of the HTA “authorizes the stopping of vehicles for what may be broadly described as highway regulation and safety purposes” but that the “detention authorized by s. 216(1) of the H.T.A. is circumscribed by its purpose.” If the highway safety concerns are merely a “ruse” or “pretext” used by the police to stop a vehicle then s. 216(1) does not provide lawful authority to stop the vehicle or detain the occupants, and the s. 9 Charter violation cannot be justified under Charter s.1. See also: R. v. Simpson (1993) 1993 ONCA 3379, 12 O.R. (3d) 182 (C.A.) and R. v. Humphry, 2011 ONSC 3024 at paras. 79 – 88.

[22] In Brown the Court of Appeal recognized that the police may have multiple purposes for stopping the vehicle, and that this will not invalidate the stop “as long as the other purposes motivating the stops are not themselves improper”:

Highway safety concerns are important, but they should not provide the police with a means to pursue objects which are themselves an abuse of the police power or are otherwise improper. For example, it would be unacceptable to allow a police officer who has valid highway safety concerns to give effect to those concerns by stopping only vehicles driven by persons of colour. Section 216(1) of the H.T.A. does not, in my view, authorize discriminatory stops even where there is a highway safety purpose behind those stops.

[23] The applicants argue that they were arbitrarily detained contrary to s. 9 of the Charter. They argue that the officer did not have reasonable grounds to suspect that an offence was being committed. The officer’s suspicions and his initial concern for the safety of O’Grady were based on racial profiling as that term has been defined by the Ontario Court of Appeal in cases such as R. v. Brown (2003), 2003 ONCA 52142, 64 O.R. (3d) 161 (C.A.) at paras. 7 – 8, and Peart v. Peel Regional Police Force, 2006 ONCA 37566, [2006] O.J. No. 4457 at paras. 89 – 90.

[24] In both of these cases the Court of Appeal recognized that racial profiling may be conscious or subconscious. In Peart the Court of Appeal stated (at para. 93):

An individual police officer engaged in racial profiling may be subjectively unaware that he or she is doing so…Indeed, racial profiling does not necessarily reflect any racial bias. It may reflect the officer’s legitimate perception of the reality of the world in which the officer operates… Regardless of the connection, if any, between racial profiling and racial bias, racial profiling cannot be tolerated.

[25] The onus is on the applicant to prove on a balance of probabilities that there was no articulable cause for the stop and that the real reason for the stop was the applicant’s colour: R. v. Brown at para. 11, Peart at paras. 139 -140. The Court of Appeal recognized that this onus can rarely be met by direct evidence, and will usually involve the drawing of inferences (R. v. Brown (2003), 2003 ONCA 52142, 64 O.R. (3d) 161 (C.A.) at para. 44):

A racial profiling claim could rarely be proven by direct evidence. This would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop a motorist. Accordingly, if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence.

[26] In undertaking this analysis I am also mindful of the statement by the Court of Appeal in Peart that subsequent acts of the police may be lawful even if there was improper racial profiling at an earlier stage of the investigation (at para. 92):

Often, the initial improper racial consideration will flow through to the subsequent police conduct. There will be situations, however, where despite improper racial profiling in the initial contact, the subsequent acts of the police are based on and justified by non-racial considerations. To take an extreme example, an officer may follow a person of colour on a public highway in part because that person is black. In doing so, even though the officer is not necessarily interfering with the individual’s constitutional rights, the officer is acting improperly. However, if the officer were to observe that person firing a gun at someone and proceed to arrest that person, the arrest would not necessarily be tainted by the initial improper racial profiling. It would be for the trier of fact to decide whether race played any role in the officer’s decision to arrest the person who fired the gun.

[27] The applicants argue that PC MacKinnon’s initial concerns were based simply on the fact that O’Grady was a young white female accompanied by a black male in a location that was known by PC MacKinnon to be an “area known for prostitution and drugs”. It is conceded by the Crown that this information alone would be insufficient to give rise to reasonable grounds to stop the vehicle. Indeed, even PC MacKinnon was aware that this was not a sufficient basis to stop the vehicle at 3:30 p.m. on a Sunday afternoon. That is why he ran the plate through the PARIS system – to see if he could find some legitimate basis to stop the car.

[28] PC MacKinnon testified that his primary ground for stopping the vehicle was that the driver appeared too young to be the registered owner of the vehicle so he wanted to identify the driver to see if she had legal authority to drive the vehicle. The applicants argue that this alternative ground was a mere “ruse” or “pretext” for a criminal investigation based on racial profiling.

[29] If I am satisfied that the driver identification grounds for stopping the vehicle is not a mere pretext, and the police genuinely acted, at least in part, because the age disparity between the registered owner and the driver gave rise to valid HTA regulatory concerns, then it will be very difficult for the applicants to establish racial profiling on a balance of probabilities (R. v. Humphry, 2011 ONSC 3024 at para. 103).

[30] I am satisfied that all of the circumstances of this case, when assessed together, are consistent with the inference that the applicants are asking me to draw. The police officer’s initial suspicions and concerns for the safety of the young white female were based on the fact that she was seen in the company of a black male. There was really nothing more to it than that.

[31] I am satisfied on the balance of probabilities that questions about the ownership of the vehicle were a pretext for stopping the car.

[32] In the first place, there is nothing illegal, unusual or suspicious about a driver not matching the description of the registered owner. Family members frequently share the same car. The registered owner may be a different gender or a different age than the driver. This is commonplace and innocent conduct. Taken on its own this would not justify a stop under s. 216 (1) of the HTA. There is no section of the HTA that is implicated by this behaviour. PC MacKinnon acknowledged that he had no reason to believe that the driver did not have the owner’s permission to drive the car.

[33] The police were not engaged in the kind of random spot checks dealt with in cases like Ladouceur, R. v. Hufsky, 1988 SCC 72, [1988] 1 S.C.R. 621 and R. v. Mellenthin, 1992 SCC 50, [1992] 3 S.C.R. 615 that can be justified under Charter s.1. There was no road safety justification for this stop, nor were there any reasonable and probable grounds for suspecting that any driving offence had occurred. This was a selective stop, and PC MacKinnon did not have any reason legitimately connected to highway safety concerns for stopping the vehicle.

[34] PC MacKinnon did not have lawful authority to stop the motor vehicle. Accordingly, I conclude that the applicants’ right not to be arbitrarily detained under s. 9 of the Charter was infringed in this case, and the search incident to the unlawful detention and arrest was a violation of Charter s. 8.

Section 24(2)

[35] The violation of the applicant’s rights under ss. 8, 9, 10(a) and 10(b) triggers a s. 24(2) analysis, and I must consider whether the admission of the evidence obtained pursuant to the detention and search of the vehicle would bring the administration of justice into disrepute. In making that assessment the court must take account of and balance the three factors stipulated by the Supreme Court in R. v. Grant, 2009 SCC 32 at para. 71:

1. The seriousness of the Charter-infringing state conduct;
2. The impact of the breach or breaches on the Charter-protected interests of the accused; and
3. Society’s interest in the adjudication of the case on its merits.

[36] Having found that the violation of Charter s. 9 was the result of racial profiling, and that the violation of Charter s. 8 was a direct result of the violation of Charter s. 9, I conclude, in keeping with the Court of Appeal’s decisions in R. v Brown and Peart, that the violation of these Charter rights was very serious.

[37] While the delays in complying with the applicants’ sections 10(a) and (b) rights were perhaps not as serious, cases such as R. v. Pino, 2016 ONCA 389 and R. v. McGuffie, 2016 ONCA 365 indicate that the finding of multiple Charter violations of ss. 8, 9 and 10 is a factor that must also be taken into account. The cumulative effect of all of these Charter violations is to place the police conduct at the very serious end of the continuum described in Grant at para. 74.

[38] With regard to the second factor, the police took advantage of the arbitrary detention to unlawfully search the vehicle. The strong causal connection between the Charter violations and the discovery of incriminating evidence results in a very serious impact on the applicants’ Charter rights (McGuffie at para. 79).

[39] In McGuffie, the Court of Appeal held that the third inquiry of the Grant analysis becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. The court explained (at para. 63):

If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility … Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.

[40] In my view, this is a case in which the first and second inquiries make a strong case for the exclusion of evidence. This is not a case in which the third factor can tip the balance in favour of admission.

[41] Taking into account the considerations set out by the Supreme Court of Canada in the Grant case, I conclude that these were serious Charter violations with a significant negative impact on the applicants. Accordingly, the evidence obtained from the search of the applicants’ motor vehicle, as well as any utterances made by the applicants to the police, should be excluded under Charter s. 24(2).

Justice R.E. Charney

Read in Open Court: June 16, 2016

Released: July 28, 2016

NOTE: As noted in court, on the record, the written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JEFFREY FERGUSON-CADORE – and – BEVERLY ANN O’GRADY CHARTER RULING Justice R.E. Charney

Released: July 28, 2016