Court File and Parties

COURT FILE NO.: 297/19 DATE: 2020-05-25 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – RAYMOND WILSON Defendant

Counsel: Lerren Ducharme and Laura Tripp, for the Crown James Dean, for the Defendant

HEARD: February 24, 25, 26 & 27, 2020 at London

HEENEY J.:

[1] The accused is before the court on two indictments. The first is under the Controlled Drugs and Substances Act, charging him with possession of hydromorphone, methamphetamine, cocaine and fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Act. The second indictment charges him with driving a motor vehicle while his ability to do so was impaired by a drug, contrary to s. 253(1) of the Criminal Code. He also faces a series of counts on that indictment relating to possession and storage of a handgun, an excess capacity magazine and ammunition.

[2] The case began with a telephone call to 911 shortly after 3:30 a.m. on August 8, 2018. A civilian witness, Michael Rivard, was up early getting ready to go to the gym and then to work when he observed, through his window, a white mini-van moving in slow circles at idling speed on the parking lot of a closed gas station across the street at the corner of Adelaide St. and Central Ave. in London. It continued to travel in circles for another minute or so, and then it left the parking lot, jumped the curb, crossed Adelaide St., and ran into a raised flower bed in front of a cat hospital. The trip across the street caused another passing vehicle to stop abruptly and take evasive action.

[3] As Mr. Rivard was on the telephone to 911, he saw the mini-van reverse direction immediately following the collision, and proceed southbound on Adelaide at a very slow rate of speed. He did not see any damage because it was too dark, but from the nature of the collision he would have expected there to be minor damage.

[4] As it happens, Officers Ogg and Mahon were travelling in separate police cruisers northbound on Adelaide several blocks south of Central when they heard the dispatch. As they stopped at the intersection of King St. and Adelaide, they each observed a white mini-van stopped at the light for southbound traffic, which had minor damage to the front end. As the vehicle continued southbound, they did a U-turn, pulled in behind the mini-van and initiated a traffic stop. The accused was in the driver’s seat and was the sole occupant of the vehicle.

[5] Officer Mahon, who is certified to perform the Standardized Field Sobriety Test (“SFST”), formed what he described as a reasonable suspicion that the accused had drugs in his system, and that he had driven within the past three hours. He read the demand for a SFST to the accused, took him to an adjacent paved surface and performed it. After the accused did poorly on the test, Officer Mahon formed reasonable and probable grounds to believe that the accused’s ability to operate a motor vehicle was impaired by drugs. He arrested the accused, read him his Charter rights and the usual cautions, and took him to the police station. A certified Drug Evaluation Officer, Officer Dymok, was called in from St. Thomas to assist.

[6] Meanwhile, Officer Ogg had stayed with the mini-van, since it was being impounded as a result of the arrest of the accused. She was performing an inventory of the contents of the vehicle when she observed a black canvas bag under the driver’s seat within easy reach of the driver. She opened it and was surprised to find what she thought was a Glock 9 mm. hand gun, with 14 rounds in the magazine, along with a box of ammunition. The bag also contained a digital scale and some small dime baggies, along with what appeared to be an Aquafina water bottle. When these items were later turned over to the exhibit officer at the police station, the water bottle fell apart, revealing a false bottom which contained a quantity of controlled substances.

[7] When Officer Dymok arrived at the police station, she assisted in facilitating the exercise of the accused’s right to counsel. She then read him the prescribed demand that he submit to a drug evaluation, and proceeded to perform the evaluation. She observed that he performed poorly on the test, and concluded that his ability to operate a motor vehicle was impaired by drugs.

[8] A sample of the accused’s urine was obtained pursuant to the appropriate demand, and it was later analyzed at the Centre of Forensic Sciences. It was found to contain cocaine, methamphetamine, amphetamine, ephedrine and fentanyl.

[9] Those are the basic facts. The accused brought an application under the Charter of Rights and Freedoms alleging that his rights under s. 8, 9 and 10(b) were infringed, and asked that the evidence found in the black bag in his vehicle, as well as the evidence of impairment by drugs obtained by Officers Mahon and Dymok, be excluded under s. 24(2). His Notice of Application sought a stay of proceedings as well, but that was not pursued in argument. The trial proceeded as a blended voir dire and trial, without a jury.

[10] It is necessary to first address the Charter application, because it will determine what evidence is admissible against the accused on his trial.

Issue #1: Did the detention of the accused at the roadside for purposes of the SFST constitute an arbitrary detention, contrary to s. 9 of the Charter, and/or an unreasonable search and seizure, contrary to s. 8?

[11] The accused submits that Officer Mahon lacked the requisite grounds to demand that the accused submit to a SFST, such that the detention that was involved in conducting the test was arbitrary, and constituted an unreasonable search and seizure. If that detention was unlawful, the accused submits that the subsequent arrest that was based upon the results of the SFST was similarly unlawful, as was the detention at the police station for purposes of the drug evaluation. He asks that all of the evidence obtained after the demand for the SFST be excluded. The accused also submits that the impoundment and inventory search of his vehicle following his arrest would similarly be unlawful, such that the results of that search should be excluded.

[12] Section 254(2)(a) of the Criminal Code provides as follows:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (c), in the case of a drug, or with the requirements of either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose;

[13] The standard of “reasonable grounds to suspect” involves possibilities, not probabilities: R. v. Williams, 2013 ONCA 772, at para. 22. It is not to be conflated with the more exacting standard of reasonable belief: ibid¸ at para. 22. A reasonable suspicion is grounded in “objectively discernible facts, which could then be subjected to independent judicial scrutiny”: ibid, at para. 23.

[14] As the Supreme Court of Canada stated in R. v. Chehil, 2013 SCC 49, at para. 29:

Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286 (Sask. C.A.), at para. 60. A police officer’s grounds for reasonable suspicion cannot be assessed in isolation: see Monney, at para. 50.

[15] Officer Ogg testified that she had heard the dispatch describing a white mini-van being involved in a hit-and-run accident on Adelaide St., that was last seen travelling southbound on Adelaide. She was travelling northbound on Adelaide, and almost immediately after hearing the dispatch she saw the accused’s white mini-van, with damage to the driver’s side of the front bumper. The time that had elapsed would have been about the amount needed for the driver to leave the scene and arrive where she saw it. There were virtually no other cars on the road, given the late hour. After initiating the traffic stop, she approached the driver’s side and spoke to the accused. She noticed that his eyes were extremely bloodshot and his pupils constricted. She could not detect an odour of alcohol but his speech seemed lethargic and slow. She asked him where he was coming from, and he said “Adelaide”. She asked “Adelaide and … ?” and he said he couldn’t remember. She asked what he had been doing and he said “sleeping on the side of the road, I was tired.” She asked if he had consumed any alcohol or drugs, and he said no.

[16] Based on her observations, her conversation with the accused, and the report of the accident, she believed that his ability to operate a motor vehicle was impaired by a drug. She advised Officer Mahon of this. At that point, he advised her that he is a trained SFST officer. She assisted him in conducting the field sobriety test by holding the flashlight.

[17] Officer Mahon testified that he heard the dispatch that a white mini-van struck a building and proceeded southbound on Adelaide. When he saw the accused’s white mini-van proceeding southbound on Adelaide, a short distance from the scene of the accident and mere minutes after the dispatch, displaying minor damage to the front end, with no other vehicles in the area, he felt it was highly likely that it was the same vehicle involved in the accident.

[18] He went to the passenger’s side of the vehicle and leaned in, and could not detect an odour of alcohol. He then joined Officer Ogg, who was questioning the accused at the driver’s side window. He testified that the accused had very glossy and bloodshot eyes. The accused advised that he had fallen asleep but could not inform the officers as to where that might have occurred. He appeared very tired. Given the totality of the circumstances, including the likelihood that this was the driver who struck the building, and that he had glossy and bloodshot eyes, Officer Mahon testified that he formed a “reasonable suspicion” that the accused “had drugs in his system”, and that he had driven within the past three hours.

[19] He then read the accused the SFST demand from his duty book. The accused said he understood the demand.

[20] I have no hesitation in concluding that Officer Mahon had a reasonable suspicion that the accused had drugs in his body, and therefore had grounds to issue a demand for a SFST. To begin with, he felt it was highly likely that the accused was the driver who had just been involved in a hit and run accident, whereby the driver had run into a cat hospital. It was entirely reasonable for him to have formed that belief, based on the following objective facts: that the vehicle matched the description of a white mini-van; that it had minor damage to its front end, which is consistent with it having been involved in a minor accident; that it was travelling southbound on Adelaide, which matches the direction that the vehicle fleeing the scene of the hit-and-run accident was reported to have taken; that the scene of the accident was only a short distance north of where the accused was first observed, only a few short minutes after the accident had happened; and, there was virtually no other traffic on the road at this time of night.

[21] A cat hospital is an immovable object. In a single-car accident whereby a vehicle runs into an immovable object, it is reasonable to suspect that the driver may be impaired by something. When Officer Mahon failed to smell alcohol on the breath of the accused, that ruled out alcohol as the source of impairment, thereby casting suspicion on the possible presence of drugs in the accused’s system.

[22] The bloodshot and glossy eyes observed by Officer Mahon also support the existence of a reasonable suspicion that he had drugs in his body. The fact that the accused admitted he had fallen asleep but couldn’t remember where similarly supports a reasonable suspicion that he had passed out behind the wheel by reason of the consumption of drugs, since it is unlikely that a sober person would have forgotten where he had been only minutes before.

[23] Based on this constellation of objectively discernable facts, a reasonable person would have grounds to suspect that the accused had drugs in his system.

[24] The accused argues that all of these grounds are explained by his assertion that he was tired. This is, in my view, no answer. It must be remembered that we are talking about possibilities, not probabilities. More than one possibility can exist at the same time. A possibility only rises to the level of a probability once any other possibilities have been ruled out. While the accident, the bloodshot and glossy eyes, the lethargic speech, and the other objective facts might possibly be attributable to the accused simply being very tired, that does not exclude the possibility that those facts may instead be attributable to him having consumed drugs. It is the existence of that reasonable possibility that entitled Officer Mahon to continue his investigation by conducting a SFST.

[25] Defence counsel made much of the fact that no erratic driving was observed by either Officer Ogg or Officer Mahon during the short time they followed him before initiating the traffic stop. Quite apart from the fact that one would expect the driver of a car to be on his best behaviour after two police cruisers do a U-turn and pull in behind to follow him, the Ontario Court of Appeal has made it clear that it is not necessary for a person to show signs of impairment to find a basis for making a roadside demand: R. v. Schouten, 2016 ONSC 872, at para. 26.

[26] The accused also argued that Officer Mahon should, in forming his grounds to demand the SFST, have enquired of the accused whether he had consumed any drugs. Defence counsel was, however, unable to point to any authority that would have compelled Officer Mahon to do so. Officer Mahon testified that he did not believe he asked this question, but even if he had he would not have placed any weight on the answer, but would instead be guided by the objective facts. I agree that such an enquiry would probably be pointless, since a driver who actually had consumed drugs before driving would be unlikely to admit it. All of this is academic anyway, since Officer Ogg did actually ask this question, and the accused denied having consumed drugs.

[27] The accused has the burden of proving a Charter breach, on a balance of probabilities. He has failed to do so with respect to the demand and detention for a SFST. It is, therefore, unnecessary to consider s. 24(2) with respect to this aspect of the application.

Issue #2: Was there a breach of the s. 10(b) Charter rights of the accused to be informed of his right to counsel without delay?

[28] This issue was raised in the Notice of Application but was not argued by defence counsel in closing arguments. It appears to be based on the “will say” statement of Officer Mahon that he arrested the accused at 4:21, and read him his rights to counsel at 4:36. In cross-examination, Officer Mahon pointed out that his notes made at the time show that he read the accused his rights to counsel at 4:26, and testified that is the time when he actually did so. This is supported by the fact that the very next entry in his duty book states that he drove the accused downtown at 4:31. Given that that entry was subsequent in proximity to the entry regarding reading the accused his rights, one would expect that it was also subsequent in time. He testified that the time in the “will say” of 4:36 was a typographical error, and should have said 4:26.

[29] Given that this was not pursued in argument, I infer that Officer Mahon’s explanation was accepted by the defence, and I accept it as well. I find no breach of s. 10(b).

Issue #3: Did the arrest and detention of the accused and the subsequent administration of a drug evaluation constitute a breach of his s. 8 and 9 Charter rights?

[30] Officer Mahon is certified to conduct SFSTs, and did so in this case. He directed the accused to a nearby parking lot that was illuminated, flat, paved and dry, with clear painted lines on the pavement. He first looked for nystagmus, which is an involuntary jerking of the eye as it follows a stimulus, which one can observe if the subject is intoxicated by alcohol or a drug. This was observed in both eyes. The test for maximum deviation involves holding the stimulus in place for 4 seconds when the eye stops at maximum deviation, to see if any nystagmus is occurring. It was observed, in both eyes. No nystagmus was noted on the vertical test, which was not surprising since Officer Mahon would only have expected that at a high level of intoxication. The final score for this section of the test was 4 “clues” out of 6, meaning that 4 clues of impairment were observed out of 6 criteria. On that result alone, he testified that he would have had grounds to arrest the accused for operating a motor vehicle while impaired by drugs.

[31] The next test was the heel to toe test, described as “Walk and Turn” in the SFST worksheet. Here, the accused was seen to be keeping his arms out throughout the test while going very slowly, to keep his balance. This was one of the clues of impairment observed.

[32] At step #3, the accused fell to the side and stepped off the line, which is another important clue. He stepped off again at step #7, and miscounted such that he ended up on the wrong foot, so that he performed his turn contrary to his instructions. He scored 4 clues out of 8 on this test. Again, this result on its own, without more, would have provided Officer Mahon with reasonable and probable grounds to believe the accused was impaired.

[33] The final test was the One Leg Stand. After receiving his instructions, which the accused said he understood, he dropped his foot to the ground at the 2 to 3 second mark. He was swaying while balancing, using his arms to help maintain his balance. His counting was slower than real time, in that he was at 22 seconds when 30 seconds had actually elapsed.

[34] He scored 3 clues out of 4 on this test. His overall score was 11 clues of impairment out of 18. As a result of this, and other information already gathered, Officer Mahon formed the opinion that the accused’s ability to operate a motor vehicle was impaired by drugs. He was also of the belief that the accused had been operating a motor vehicle within the past 3 hours, which is obvious since he had actually observed the accused driving his mini-van. As a result, the accused was arrested at 4:21 a.m. for driving while his ability to do so was impaired by drugs.

[35] A police officer is entitled to arrest an individual if the officer has reasonable and probable grounds to believe he has committed an offence: Criminal Code, s. 495(1). Reasonable and probable grounds do not rise to the level of a prima facie case or approach the standard of proof beyond a reasonable doubt: R. v. Bush, 2010 ONCA 554, at par. 37. Reasonable and probable grounds have a subjective and objective component. The officer must have an honest belief that the accused committed the offence, and his belief must be supported by objective facts: R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 51; R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3l.

[36] Impairment within the meaning of s. 253 may be proven if the evidence establishes any degree of impairment from slight to great: R. v. Stellato, 1993 ONCA 3375 at para. 14. Slight impairment relates to a reduced ability, in some measure, to perform a complex motor function, whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like: R. v. Censoni, [2001] O. J. No. 5189 (C.A.).

[37] Based on all of the factors that preceded the administration of the SFST, as well as the results of the SFST itself, I am satisfied that Officer Mahon had an honest belief that the accused had been driving while his ability to do so was impaired by drugs, and that his belief was objectively reasonable. Nystagmus was observed in both eyes, which is a sign of impairment by alcohol or drugs. The results of the rest of the testing revealed some degree of impairment of the accused’s motor functioning. Coupling those results with the information that Officer Mahon had about the nature of the accident, the driver leaving the scene of the accident (which is both a breach of the rules of the road and an error in judgment), his observations of the accused’s eyes being glossy and bloodshot, and the inability of the accused to remember where he had fallen asleep only moments before, a reasonable person would conclude that the accused’s ability to operate a motor vehicle was impaired to at least some degree by the consumption of drugs.

[38] Officer Mahon provided his grounds to Officer Dymok, which provided her with grounds to issue the demand for a drug evaluation.

[39] I find no breach of the Charter rights of the accused arising out of his arrest and subsequent detention for purposes of a drug evaluation.

Issue #4: Did the discovery and seizure by Officer Ogg of the contents of the black bag found under the driver’s seat of the accused’s vehicle constitute a breach of the s. 8 rights of the accused to be secure from unreasonable search or seizure?

[40] As already noted, Officer Ogg remained at the scene of the arrest because the accused’s mini-van was impounded, and was going to be towed to a storage facility. She made notes of the damage to the vehicle, and then began to do an inventory of the contents of the vehicle, which involved going through the interior of the vehicle and noting all items of value that she located. She testified that she began by looking under the driver’s seat, and at 4:45 a.m. she located a black zip-up lunch type canvas bag. It was immediately under the driver’s seat, where the driver could have easily reached down and pulled it out. Inside she found a Glock 9 mm. hand gun, with a high capacity magazine in it which contained 14 rounds, with no round having been chambered in the gun. There was also a box of 9 mm. Browning ammunition containing 8 rounds, and a bottle of Aquafina water. In a side zippered pouch she found a package of cigarettes, a digital pocket scale and a bag containing empty dime baggies.

[41] She also located a Samsung cell phone on the front seat. She pressed it to see if it was on, and found that it was locked. She also saw and recorded a Dell laptop computer, a DVD player, headphones and other miscellaneous items. She did not seize any of those items, because she didn’t feel that they pertained to the charges. She also found an Alberta license plate, which she seized because it did not come back as being registered to the accused or the vehicle.

[42] She explained that her authority to do an inventory of the contents of the vehicle flows from s. 48.4 of the Highway Traffic Act, R.S.O. 1990, c. H.8, which provides for the impoundment of a vehicle following the administrative suspension of the driver on the basis that the driver was operating the vehicle while his ability do so was impaired by alcohol or drugs. Duties relating to impoundment are found in the London Police Services procedures, Part 4 Chapter D. Section 3(A)(8) requires the investigating offer to “Remove, record and store (as per Property Procedure), any items required as evidence, as well as valuable articles for safekeeping from seized vehicles prior to towing.”

[43] At 6:15 a.m. Officer Ogg turned over the seized items to Officer Quinn at the police station. In the process of taking control of the items, Officer Quinn testified that the top of the water bottle came off, revealing a false bottom which contained bags of various narcotics.

[44] At issue is whether the inventory search was an unreasonable search that violated the s. 8 rights of the accused. Normally the person alleging a Charter breach has the burden of proving it. However, since this was a warrantless search, it is prima facie unreasonable. The Crown has the burden of showing, on a balance of probabilities, that the search was reasonable. In order to be reasonable, a search must be authorized by law, and must be carried out in a reasonable manner: see R. v. Caslake, [1998] 1 S.C.R. 51, at paras. 10 and 11.

[45] The defence argues that although Officer Ogg stated that she was conducting an inventory of the contents of the vehicle, what she was actually doing was a search incident to arrest. That is why, it is argued, she pressed the cell phone to see whether it was on, rather than simply noting it as an item of value in her inventory list. That is also why, it is argued, she did not seize things that were obviously of some value such as the laptop, but only seized items that would be used as evidence against the accused. Since the LPS procedures did not authorize a search incident to arrest but only the taking of an inventory, the defence submits that the search and seizure was not authorized by law and was unreasonable.

[46] This argument flows from Caslake, where the accused in that case was arrested for possession of marijuana for the purpose of trafficking, after having been seen at the side of the road where a bag containing marijuana was found. Six hours after his arrest, an officer conducted an inventory search of the vehicle as required by RCMP policy. He found a quantity of cocaine and cash.

[47] The Supreme Court of Canada held that the search of the vehicle would have been within the scope of the power of the police to search incident to arrest. However, that was not the express purpose of the search, in the mind of the officer who conducted it. Rather, it was to take an inventory of the contents of the vehicle. Since there was no statutory or common law authority for such a search, it was not authorized by law and contravened the s. 8 rights of the accused.

[48] The Court said this, at para. 26:

The police arrested the appellant because they believed that he was either buying or selling the nine pound bag of marijuana which Natural Resource Officer Kamann found. In this case, the appellant was arrested in his car, which had been observed at the place where the marijuana was discovered. Had Constable Boyle searched the car, even hours later, for the purpose of finding evidence which could be used at the appellant’s trial on the charge of possessing marijuana for purpose of trafficking, this would have been well within the scope of the search incident to arrest power, as there was clearly sufficient circumstantial evidence to justify a search of the vehicle. However, by his own testimony, this is not why he searched. Rather, the sole reason for the search was to comply with an R.C.M.P. policy requiring that the contents of an impounded car be inventoried. This is not within the bounds of the legitimate purposes of search incident to arrest.

[49] However, Caslake was distinguished by the Ontario Court of Appeal in R. v. Nicolosi, [1998] O.J. No. 2554 (C.A.). In that case, the accused was stopped for reckless driving, driving without insurance and other offences. His car was impounded. Guidelines issued by the chief of police required the officers impounding the vehicle to examine the interior of the vehicle for loose property of apparent value, and to record those observations. In the process of doing so, the officer saw a handgun lying between the two front seats.

[50] The Ontario Court of Appeal held that there was no violation of the s. 8 rights of the accused. The impounding of the vehicle was authorized by the power given to the police under s. 221(1) of the Highway Traffic Act. This, in turn, authorized the itemization of property of apparent value.

[51] Doherty J.A. said this, at para. 30:

With the responsibility to keep the impounded property safe, must come the ability to take reasonable steps to achieve that end. Entering the vehicle for the purpose of itemizing visible property of apparent value is entirely in keeping with the responsibility to safeguard the vehicle and its contents while they are in the custody of the law. Given Constable Bishop’s purpose in entering the vehicle, his conduct falls squarely within his authority to take the vehicle into the custody of the law.

[52] Doherty J.A. quoted a passage from Caslake which stated that the Respondent in that appeal was unable to find either statutory or common-law authority for inventory searches. This distinguished Caslake from the case before the court in Nicolosi because the in the latter there is a statutory provision which authorizes such a search. He said this, at para. 34:

I take this passage to mean that inventory searches of vehicles after arrest are not automatically justifiable as a search incident to the arrest. This is so because inventory searches do not necessarily serve the criminal law objectives which justify the power to search as an incident of arrest. In this case, it is not suggested that Constable Bishop’s actions were justified by the appellant’s arrest on the outstanding warrant. Unlike Caslake, there is, however, a statutory provision which, as I interpret it, authorizes entry of the impounded vehicle and examination of its contents for the purpose of itemizing those contents which are plainly visible and of apparent value.

[53] At para. 38, Doherty J.A. found that such a search was not unreasonable:

I find nothing unreasonable in a statutory provision which authorizes the police to enter a vehicle for the purpose of cataloguing visible contents when the police are under a responsibility to safeguard that property while it is in their custody.

[54] I accept Officer Ogg’s testimony that she intended to do, and in fact did, an inventory search pursuant to the LPS policies that required such a search upon impoundment of the vehicle, in order to document any items of value prior to the vehicle being taken away. She only seized offence related property but not the computer or cell phone, because it is not practical to seize everything. She came across the black bag and its contents during the course of taking that inventory, and was genuinely surprised to find that the bag contained a gun. I reject the submission that she was really doing a search incident to arrest in the guise of an inventory search.

[55] While it is arguable that she had no reason to press the cell phone to see whether it was on, nothing came of it because the phone was locked. To find a Charter breach there would, in my view, trivialize the Charter, and would not justify the exclusion of any evidence because no evidence was found or seized as a result of that action. It is noteworthy that the police later obtained a search warrant to search the cell phone, and it is only then that evidence was obtained.

[56] Applying Nicolosi to the case at bar, it is clear that Officer Ogg did not violate the s. 8 rights of the accused in doing an inventory search and, in the process, observing and seizing the black canvas bag under the driver’s seat. The search was authorized by law and was carried out in a reasonable manner.

[57] Did she violate the s. 8 rights of the accused by looking inside the bag and discovering the handgun, ammunition, scales and water bottle, which was later found to contain narcotics? The Ontario Court of Appeal answered that question in R. v. Wint, 2009 ONCA 52. In that case, the accused was apprehended for stunt driving, and his vehicle was impounded pursuant to the Highway Traffic Act. During an inventory search, the officer located a black bag on the floor behind the passenger seat. He opened it, and found that it contained an ounce of crack cocaine.

[58] The defence in that case argued that the power of the police to conduct an inventory search ended when they discovered the black bag. They were authorized to note that a black bag was found, but were not entitled to look inside the bag, because the contents were not plainly visible.

[59] The court rejected this argument, at paras. 14 – 16:

The underlying rationale for inventory searches, as explained in Nicolosi, belies the appellant’s submission that the police may only itemize objects found in a car, but not their contents.

Given the underlying rationale of inventory searches, to proceed in that fashion would render these searches virtually meaningless. Thus, if the police found a purse and could not look inside it, they would have no way of knowing whether it contained pennies or thousands of dollars and if the latter, what steps should be taken to safeguard the large sum of money. That, in our view, would defeat the purpose of the exercise. In short, if inventory searches are to be meaningful and serve the purpose for which they are intended, the police cannot be hobbled as the appellant would suggest. They must be able to search and itemize the contents of objects such as purses, wallets and bags like the one observed in this case, to determine their contents. Of course, any inventory search must be executed in a reasonable manner and as is the case with other warrantless searches, reasonableness of police conduct will be judged against the totality of the circumstances revealed in each case.

It follows that the search of the black bag and its contents, as well as the search of the CD case and its contents was entirely reasonable and justified. Indeed, the police would have been derelict in their duties had they not carried out the searches.

[60] The accused relies on R. v. Longstaff, 2013 ONCJ 448, where Reinhardt J. found that finding a green garbage bag containing marijuana in the tire-well of the truck of the accused’s rented car was not a bona fide inventory search but was instead a pretext for a more invasive and unlawful search for marijuana. In ruling that the accused’s s. 8 Charter rights had been breached, he found that the garbage bag was not in “plain view”, as was the black bag in Wint and the gun in Nicolosi.

[61] That case is distinguishable from the case at bar, because the black canvas bag was clearly visible under the car seat. According to the evidence of Officer Ogg, which I accept, she began her search by looking under the driver’s seat and saw the bag immediately. It was, therefore, in plain view to someone looking from that angle.

[62] In any event, more recent authority from the Ontario Court of Appeal does not appear to require that the article be in plain view in order for an inventory search to be authorized by law and reasonable. In R. v. Ellis, 2016 ONCA 731, police pursued a vehicle involved in street racing, and arrested the accused as he was walking away from the vehicle being pursued. After searching the accused and obtaining the keys, they searched the vehicle. The police justified their search both as a search incident to arrest as well as an inventory search pursuant to their power to impound the vehicle under s. 221(1) of the Highway Traffic Act. They found a loaded handgun hidden behind a console panel.

[63] In dismissing the appeal of the accused’s conviction, Hourigan J.A., for the court, agreed with the trial judge that the search was not a valid exercise of the power to search incidental to arrest. However, the court also agreed with the trial judge that the search of the vehicle was authorized by law as an inventory search, and did not violate the s. 8 Charter rights of the accused.

[64] I am satisfied that the inventory search conducted by Officer Ogg that resulted in the discovery and seizure of the contents of the black canvas bag was authorized by law and was entirely reasonable. There was no breach of the s. 8 rights of the accused. The application to exclude the contents of the black bag from evidence is dismissed.

[65] That disposes of the voir dire. I now move to the trial itself, to address whether the Crown has proven the various counts alleged in the indictments beyond a reasonable doubt. I will deal with the Criminal Code indictment first.

Count #7: Operating a Motor Vehicle While Impaired by a Drug

[66] I have already reviewed the relevant evidence on this count while addressing the Charter application. However, more needs to be said about the incident that led to the 911 call to the police by Mr. Rivard.

[67] I find as a fact that it was the accused, driving his white mini-van, who was observed by Mr. Rivard in the parking lot of the gas station across the street, moving in circles at idle speed until the vehicle mounted the curb, crossed Adelaide St., and struck the raised flower bed in front of the cat hospital. The following circumstantial evidence leads me to this conclusion:

• The vehicle stopped by Officers Ogg and Mahon matched the description of the vehicle observed by Mr. Rivard, being a white mini-van;
• The mini-van left the scene of the accident travelling southbound on Adelaide St. The accused’s mini-van was also southbound on Adelaide St. when it was observed by the police officers;
• The accused’s mini-van had minor damage to the front end, which is what would be expected following a minor accident;
• The accused’s mini-van was seen by the police several blocks south of the scene of the accident, barely minutes after the accident was reported, thereby establishing both a strong temporal and geographic connection;
• It was between 3:30 and 4:00 a.m. when these events occurred, when there was virtually no other traffic on the roads.

[68] It is completely improbable to suggest that, by coincidence, another white mini-van had been involved in the accident but took another route after initially setting off southbound on Adelaide, while the accused just happened to be driving his own white mini-van on that same street and in a southbound direction when he was seen by the police, and that his mini-van just happened to have damage to the front end.

[69] The fact of the accident is powerful evidence of impairment. When considering the fact that the vehicle was doing slow circles at idling speed before mounting the curb, crossing the street and colliding with the flower bed, two explanations emerge. The first is that the driver was so impaired that he was unable to control the vehicle. The other is that the driver was not in control of the vehicle at the time because he was incapacitated, and the vehicle was essentially driving itself. This second scenario is not a case of a driver falling asleep in his car while it is parked. It is instead a case of a driver passing out while the vehicle is in gear and in motion.

[70] Betty Chow, the toxicologist who testified from the Centre of Forensic Science, described the “crash phase” that can occur following the administration of the same drugs found in the urine of the accused. She described it as the body’s reaction to the metabolization of the drug, which can cause the user to fall asleep involuntarily. The second scenario is consistent with this having happened.

[71] The fact that cocaine, methamphetamine, amphetamine, ephedrine and fentanyl were found in the urine of the accused is an item of circumstantial evidence that can be considered, but its weight with regard to this count is not great. This is because, as attested to by Betty Chow, the fact that these drugs were found in the urine of the accused does not mean that they were necessarily in the blood of the accused at the time of driving. Without doubt these drugs were in the blood of the accused at some point in time prior to the urine sample being taken, because they had to have been filtered from his blood in order to end up in his urine. However, urine can remain in the bladder for quite a while before being eliminated by urination. That means that drugs found in the urine may have been there for many hours after they had been eliminated from the bloodstream.

[72] Nevertheless, as an item of circumstantial evidence it is consistent with the accused having taken these drugs, and having been under the influence of these drugs at the time of driving, even though it cannot prove, on its own, that he was. But any single item of circumstantial evidence does not need to prove the fact in issue in order to be considered. It is often said that a brick is not a wall. The court only is called upon to ask whether circumstantial evidence is consistent with guilt, and inconsistent with any other rational conclusion, when considering and weighing that evidence in light of all of the evidence.

[73] The other items of circumstantial evidence to be considered include the observations of Officers Ogg and Mahon that the accused had bloodshot and glossy eyes, and was lethargic. Once again, his lethargy is consistent with him being in the “crash phase” following administration of the drugs found in his urine. It is true that his lethargy may be explainable by the accused’s assertion to the police that he was tired and had fallen asleep. Indeed, he told Officer Dymok that he had last slept a couple of days prior, for 8 to 9 hours. However, once again, while this is consistent with an innocent explanation for his lethargy, items of circumstantial evidence are not to be assessed on an individual basis, but are instead to be weighed in light of all of the evidence.

[74] I have already reviewed the results of the SFST conducted by Officer Mahon, which support a conclusion that the ability of the accused to drive a motor vehicle was impaired by drugs. A full drug evaluation was conducted by Officer Dymok, pursuant to a valid demand. She is a Certified Drug Recognition Evaluator under the provisions of the Criminal Code. Her qualifications were admitted by the defence.

[75] When she met him for the first time in an interview room at the police station, at about 5:55 a.m., she found him to be lethargic and tired, with droopy eyes, slightly slow to get up, but then he was steady on his feet and able to accompany her to the evaluation room. He had been trying to contact his counsel of choice, Mr. Dean, but the police were having no luck in contacting him. He finally chose to speak to a different lawyer, and Officer Dymok facilitated that telephone call. The drug evaluation began after that, at about 6:09 a.m.

[76] She began by asking him if he was sick or injured, diabetic, taking insulin or had any disabilities, and he answered “no” to all questions other than that he was prescribed medication for some mental health issues.

[77] In the first phase of the drug evaluation she did not detect any nystagmus, but his pupils were slow to react to a change in light which, she said, is an indicator of drug consumption.

[78] She next did a modified Romberg test, which is intended to give the subject individual mental and physical tasks to divide his attention as it would be if he were operating a motor vehicle. He was asked to balance for 30 seconds with his eyes closed and his head tilted back while estimating the amount of time that was passing. He estimated that 30 seconds had passed when only 16 seconds had actually elapsed, which indicated that his internal clock was distorted and fast. This is an indication of central nervous system stimulants. Four of the drugs found in the accused’s urine, namely cocaine, methamphetamine, amphetamine and ephedrine, are central nervous system stimulants.

[79] While doing the test, the accused had a sway both front to back and side to side, along with slight body tremors in his legs while balancing. He also moved his head to a more upright position as opposed to keeping it tilted back as instructed. On the walk and turn test, he wobbled a bit on the first set of 9 steps, but that did not amount to a clue. On the second set he stepped off the line twice, raised his arms twice for balance, and did not perform the turn as instructed and demonstrated. On the one leg stand, no clues were noted when balancing on the left leg, but on the right leg he swayed while balancing and put his foot down. His counting also demonstrated a distorted perception of time.

[80] On the finger to nose test, he was asked to tilt his head back and touch the tip of his finger to the tip of his nose. He had trouble landing his finger on his nose on attempts 1 and 4. He was able to touch it on the other attempts, but used the pad of his finger instead of the tip as instructed. He also had to be directed to put his arm down after each attempt.

[81] She examined his nose and said that his nasal area was very red. She said she has looked up a lot of noses and his was the reddest she had seen. This was consistent with recent or chronic snorting of some substance. During the course of questioning by Officer Dymok, the accused admitted to using crystal meth, possibly one to two weeks ago.

[82] Considering all of her observations and testing in totality, as well as the information she received from Officer Mahon, her overall opinion was that the accused’s ability to operate a motor vehicle was impaired by a central nervous system stimulant. He was still exhibiting signs of impairment at the time of his evaluation, and would have been impaired at the time of driving. He was not grossly impaired at the time of his evaluation but was impaired to some degree. She testified that central nervous stimulants tend to be fast acting, followed by a crash phase. His performance during the SFST conducted by Officer Mahon may have been worse than she observed due to the time that had elapsed in between.

[83] Following the drug evaluation, Officer Dymok made a demand for a urine sample. It was sent to the Centre of Forensic Sciences, and the Toxicology Report has been filed as Ex. #27. I have already referred to its contents, which have been formally admitted by the defence in the document entitled “Admissions Pursuant to s. 655 of the Criminal Code of Canada”, filed as Ex. #1.

[84] Taking all of the evidence into account, I am satisfied beyond a reasonable doubt that the accused was driving his motor vehicle while his ability to do so was impaired by a drug or a combination of drugs. The circumstantial evidence that I have referred to is overwhelming and, considered in light of all of the evidence, particularly the evidence of Officers Mahon and Dymok, points to no other rational conclusion. A conviction will be entered on this count.

Count #3 and 10: Transporting ammunition in a careless manner and possession of ammunition while prohibited from doing so

[85] The Crown consented to a motion for a directed verdict of acquittal on these counts, based on the evidence of the firearms expert Laurie Legg that the ammunition that was found in the black bag seized from the accused’s motor vehicle did not function, in that the rounds did not fire when tested. As such, they did not meet the definition of ammunition under s. 84(1) of the Criminal Code. A finding of not guilty will be entered on these two counts.

Count #6: Possession of a restricted firearm, namely a handgun, without a license

[86] No closing submissions were made in relation to this or any of the other firearm-related counts in this indictment in closing arguments. The case for the defence rested almost entirely on the success or failure of the Charter application.

[87] I am satisfied beyond a reasonable doubt that the accused had possession of the contents of the black bag found under the driver’s seat, within easy reach as he occupied that seat. The vehicle was owned by him, and was in his possession and control, as were the contents of the vehicle. Knowledge can be inferred from all of the surrounding circumstances. Aside from physical proximity to the accused, and their location within a vehicle owned and operated by him, there is other evidence that connects him to the contents of the black bag. His laptop computer was searched pursuant to a search warrant, and it is admitted in Ex. #35 that the extraction report from the search of the laptop yielded Google searches in relation to firearms such as “glock 19”; PDF files in relation to firearm safety and “The Great Big Narcotics Cookbook”; photographs of narcotics such as methamphetamine and fentanyl; and photographs of a handgun and a long gun.

[88] As already noted, the firearms expert Laurie Legg testified, and filed a report on her findings that was marked as Ex. #30. Her qualifications were admitted in Ex. #1, as were the contents of her report. The handgun found in the black bag was identified by her as a Polymer 9 mm. semi-automatic handgun, although it apparently resembles a Glock. It can be purchased from an American manufacturer as a kit, in separate pieces, which allows it to be sold without a serial number. This particular handgun had no serial number, indicating that it had never been registered.

[89] Her admitted evidence is that this was a restricted firearm. It is also admitted that the accused did not possess a valid Firearms Acquisition Certificate or other license which would permit him to possess this weapon. A conviction will be entered on this count.

Count #1: Transporting a firearm in a careless manner

[90] Laurie Legg testified that there are regulations as to how firearms are to be transported. In the case of a firearm such as this, they must be unloaded, made inoperable with a locking device, the bolt must be removed if removeable, they must be put in sturdy opaque container that can’t be opened, and locked in a trunk or compartment, or out of sight. On the evidence, this handgun was loaded (although the ammunition was found to be inoperable), and it had no trigger lock. That is sufficient to support a conviction on this count.

Count #2: Transporting a prohibited device, namely an excess capacity magazine, in a careless manner

[91] In her evidence and her report, Laurie Legg stated that the magazine for a handgun like the one seized must not be capable of holding more than 10 cartridges of ammunition. The one found in the black bag in the accused’s vehicle had been altered so that it was capable of holding 18 cartridges. Such a magazine is a “Prohibited Device” under the applicable regulations. It was transported while being loaded with 14 cartridges, which is obviously unsafe and careless. A conviction will be entered on this count.

Count #4: Possession of a prohibited device, namely an excess capacity magazine, without a license

[92] As noted, it is admitted that the accused was not in possession of a license or permit to possess a prohibited device. A conviction will be entered on this count.

Count #5: Occupying a motor vehicle knowing that there was a handgun in the vehicle

[93] I have already found the accused to have been in possession of the handgun, in that he had knowledge that it was in his vehicle and control over it. Since he operated his mini-van while knowing that this handgun was in the vehicle, a conviction will be entered on this count.

[94] Count #8: Possession of a handgun while being prohibited from doing so by an order under s. 110 of the Criminal Code

[95] It is admitted that at the time of his arrest, the accused was bound by an order under s. 110, that was in effect for a period of 3 years from May 18, 2016, prohibiting him from possessing weapons. A conviction will be entered on this count.

[96] Count #9: Possession of a prohibited device, namely an excess capacity magazine, while prohibited from doing so by an order under s. 110 of the Criminal Code

[97] For reasons already give, a conviction will be entered on this count.

[98] That completes my consideration of the Criminal Code indictment. I now move to the Controlled Drugs and Substances Act indictment.

[99] The accused is facing four counts of possession of a Schedule I substance for the purposes of trafficking, contrary to s. 5(2) of the CDSA. Count #1 relates to hydromorphone, count #2 relates to methamphetamine, count #3 relates to cocaine and count #4 relates to fentanyl.

[100] I have already found that I am satisfied, beyond a reasonable doubt, that the accused was in possession of the contents of the black bag found under the driver’s seat of his vehicle. According to Officer Quinn, that bag contained the following items relevant to these counts:

• A digital scale, with a white powdery substance on it;
• 1 g. of cocaine;
• 22 g. of methamphetamine;
• 11 capsules of hydromorphone containing a 12 mg. dose each;
• 2 g. of fentanyl;
• In excess of 100 small baggies, referred to as “dime” baggies, which appeared new.

[101] The accused was also searched at the time of his arrest, and $515 in cash was found on his person.

[102] Samples of all of the drugs were sent to Health Canada, and Certificates of Analysis have been filed, on consent, as exhibits. They confirm the type of each drug, except that the 2 g. of fentanyl also contained heroin, caffeine and U-47700.

[103] It is clear that the accused was in possession of these drugs, and that they are all Schedule I controlled substances. The only remaining question is whether he did so for the purpose of trafficking. Mr. Dean, counsel for the accused, indicated in closing arguments that he was not contesting the possession “for the purpose” issue, so my review of the evidence will be more succinct than it might otherwise have been.

[104] Ryan Atkinson testified as an expert for the purpose of giving opinion evidence on possession for the purpose of trafficking in the four drugs found, including the nature of the substances, their valuation and pricing as of August 8, 2019, the quantities in which it is commonly sold, the methods of use, packaging, the hierarchy and chain of distribution, associated indicia of trafficking, and methods of operation of the drug subculture. His qualifications were admitted by the defence in Ex. #1.

[105] Dealing with the counts in the order in which they appear on the indictment, the first drug to be considered is hydromorphone. There were 11 capsules seized that were packaged in two baggies, one containing 5 capsules and one containing 6. The capsules were 12 mg. each, prescription grade. An illicit user could consume upwards of 100 mg. per day. In August 2018, a 12 mg. capsule sold for between $15 and $25. He estimated the value of all of the capsules at $165 at the low end and $275 at the top end. In his opinion, the amount of the drug alone would not be enough evidence to establish trafficking, but the fact that they were found in two separate baggies indicated that they were packaged for sale.

[106] Count #2 relates to methamphetamine. The form of the drug here was crystal meth, which is either snorted or smoked. A casual user consumes between 0.06 g. and .1 g per day, while a heavy user might consume between .23 and .3 g. per day. A total of 22 g. was seized in this case. For an occasional user, that would represent approximately a 220 day supply. For a heavy user it would be a 73 day supply. In his experience, even a chronic dependent user only purchases what he needs for a day or two, because it is fairly expensive. A “point” is 1/10th of a gram, and sold for $10 to $20 in 2018. It is also sold by the “half ball” (a “ball” is 1/8 of an ounce), by the ounce or by the kilogram. A gram would sell for $70 to $110 at the time, an ounce for $900 to $2,100 and a kilogram from $25,000 to $35,000.

[107] The quantity found here was 22 g., which is not a common weight. It was his opinion that this bag originally contained an ounce (28 g.) when it was purchased, and had gotten smaller as quantities were sold.

[108] Count #3 relates to cocaine. The total weight was 1 g., wrapped in a piece of tinfoil. This was crack cocaine, which has to be smoked because it is not water soluble. The value of 1 g. of cocaine in 2018 was between $80 to $130. Considering the crack cocaine on its own, it would not be indicative of drug trafficking, given the small quantity. There was, however, no evidence of paraphernalia, such as a crack pipe, that would be needed for personal use.

[109] Count #4 relates to fentanyl. While heroin is 40 to 50 times stronger than morphine, fentanyl is 100 times more powerful. Because it is so powerful, it is usually consumed in very small amounts. The amount seized here was 2 g. A typical lethal dose is 2 mg. The typical user consumes approximately 1 mg. of fentanyl.

[110] The analysis in this case is made more difficult because fentanyl was mixed with heroin, caffeine and U-47700. The latter is an opioid that is 7.5 times more potent than morphine. Because of this mixture, it is difficult to know whether the drugs seized contained a lot of fentanyl or only a little.

[111] The value of the 2 g. seized here would range from $500 to $900 if sold by the gram, and $800 to $1,600 if sold by the point. The quantity seized here represents 20 doses, and in his opinion a user would not be carrying around that much fentanyl.

[112] Aside from the drugs themselves, a digital scale was also found, which is something that traffickers routinely use. As to the packaging material found, it is common to find one or two used baggies in the possession of a user. A trafficker, though, will have several unused baggies, so once the drugs are weighed on the scale they can be packaged for sale. Here, in excess of 100 new dime baggies were found.

[113] The fact that a hand gun was found in the same bag as the drugs was also, in his view, significant. Drug trafficking is inherently dangerous. Traffickers need to be concerned about other traffickers stealing their product, among other things, and tend to arm themselves with weapons. Users tend not to do so.

[114] The Polymer gun seized in this case is called a “ghost gun”, because it can’t be traced. He opined that someone involved in drug trafficking will seek out a gun like this for protection.

[115] The accused was also found with $515 in cash on his person. In this day and age, most people purchase things with debit cards and credit cards. The average person does not carry this much cash around. However, drug trafficking is a cash business, so it is normal to find large amounts of currency on the person of a drug trafficker, or at his home.

[116] He was also provided with photographs taken from the accused’s cell phone, which was searched pursuant to a search warrant. One photograph was of 1 kg. of crystal meth, another was of a large quantity of what he believed to be either cocaine or powdered fentanyl, another was of a fentanyl patch and another of a hand gun on a bandana on a toilet seat. The photographs were all date-stamped in April and May, 2018.

[117] Taking everything into account, he was of the opinion that the drugs seized here were in the accused’s possession for the purpose of trafficking. In particular, four different kinds of drugs were seized, and it is becoming more common for drug traffickers to possess different kinds of drugs to satisfy their customer base. A user will typically stick to the drug they are used to or are comfortable with. The quantities of methamphetamine and fentanyl were too large for a user to possess, and 22 g. was not a typical weight of methamphetamine to be purchased in.

[118] Ryan Atkinsons’s opinion evidence was not challenged, nor was the element of possession for the purpose of trafficking put in issue by the defence in argument. While the quantities of two of the drugs, hydromorphone and cocaine, were small enough to be consistent with personal use and not trafficking, the rest of the evidence leads to the inescapable conclusion that these drugs were, like the methamphetamine and fentanyl, in the accused’s possession for the purpose of trafficking. He was, I am satisfied, a mobile drug store, who was in a position to satisfy a wide range of customer demand.

[119] I accept Officer Atkinson’s opinion evidence, and on all of the evidence I am satisfied beyond a reasonable doubt that all of the drugs seized were in the accused’s possession for the purpose of trafficking. There will be convictions entered on all counts on the CDSA indictment.

“ T. A. Heeney J.”

T. A. Heeney J.

Released: May 25, 2020

COURT FILE NO.: 297/19 DATE: 2020-05-25 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – RAYMOND WILSON REASONS FOR JUDGMENT T. A. Heeney J. Released: May 25, 2020