Court File and Parties
COURT FILE NO.: CR-20-90000049 DATE: 20200805 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – DAMION STEWART
Counsel: Mr. Somboun Tsai, for the Public Prosecution Service of Canada Ms. Samantha Saunders, for Mr. Stewart
HEARD: July 20-24, 2020
Justice J. Copeland
Reasons for Judgment on Charter Application
Introduction
1Damion Stewart is charged with one count of possession of fentanyl for the purpose of trafficking, alleged to have been committed on April 29, 2019. The allegations involve the seizure of approximately 16 grams of fentanyl. Events began with a 911 call about a woman passed out in a running car, and ultimately led to the detention of Mr. Stewart, and the finding of 16 grams of fentanyl under the driver seat of the car.
2Mr. Stewart has elected trial by judge and jury. I heard a pre-trial application for exclusion of the evidence seized from the car and from Mr. Stewart’s person.
3Mr. Stewart asserts that his rights protected by ss. 8 and 9 of the Charter have been infringed. With respect to s. 9 of the Charter, he submits that there were not grounds for investigative detention, and that even if there were grounds for investigative detention, what the police did amounted to a de facto arrest, and there were not reasonable and probable grounds for an arrest. In the alternative, Mr. Stewart submits that even if the initial detention was an investigative detention, and not an arrest, the manner in which the detention was carried out was unreasonable, in particular the amount of force used. Finally, Mr. Stewart submits that the search under the driver seat of the car infringed his s. 8 rights because, in his submission, it was not reasonably based on officer safety concerns, and thus exceeded the search powers incident to investigative detention, and that even if there were officer safety concerns, they did not justify searching in the vehicle.
4The Prosecution submits that the detention was an investigative detention, and was supported by information that constituted reasonable suspicion to believe a drug offence had been or was being committed. The Prosecution submits that the detention was carried out reasonably in all the circumstances, given the information known to police. And the Prosecution submits that the search under the driver seat of the vehicle was justified by officer safety concerns, based on the information known to police, Mr. Stewart’s non-compliance with the initial detention, and observations by the police of him reaching under the driver seat.
5On a Charter application, the burden of proof is on the applicant, on a balance of probabilities. In relation to the s. 8 allegation, because the search involved is a warrantless search, the burden is on the Prosecution on a balance of probabilities to show that the search was lawful and carried out in a reasonable manner.
6My reasons are structured as follows. First, I will outline my factual findings based on the evidence I heard. Second, for each issue, I briefly summarize the applicable law, and how the law applies to my findings of fact. As I noted during the trial, the law in this area is reasonably well-settled. However, cases involving issues of investigative detention are, by their nature, very fact-specific in terms of assessing where the events fall within the spectrum of police powers of detention or arrest, and related search powers.
7I note that there was some hearsay evidence elicited during the hearing of the application, such as the contents of the 911 call, and some of the background searches about Mr. Stewart (although some of the individual officers had direct involvement in some of Mr. Stewart’s prior interactions with police). In addition, various officers testified about information that they received during the course of the investigation which formed part of the basis for the detention. It is well-established that officers may rely on hearsay in forming and assessing whether reasonable suspicion or reasonable and probable grounds for a detention or search exists. Similarly, the court may consider hearsay relied on by the officers in assessing grounds. The consideration of hearsay as part of grounds is subject to the court assessing the reliability and accuracy of the information conveyed, within the context of all of the information relied on as grounds for detention or search.
Findings of Fact
8I review my findings of fact chronologically. I state at the outset that, in general, with the exception of parts of the evidence of PC Taafe, I found all of the officers to be credible and reliable in their evidence. The events relayed by the officers, with the exception of parts of the evidence of PC Taafe, were logical and coherent, and the officers gave their evidence in a consistent manner. There were some differences in how each officer described various events, and I will address some of the areas of divergence below. But in my view, the areas of difference are the types of differences one expects from honest witnesses relating events over a year after the events, and who viewed the events for different positions, in the context of events that were fluid and moved very quickly.
9With respect to PC Taafe, as I go through my findings of fact, I will outline the areas of his evidence that I have concerns with. However, those areas are either not germane to the issue of grounds for detention and search (I refer, as an example, to the issue of whether the car was left running), or were not relied on by the officers who conducted the detention and search (I refer, as an example, to PC Taafe’s evidence about allegedly seeing a pipe and push rod in the woman’s purse). The aspects of PC Taafe’s evidence which were important to the grounds for detention and search were confirmed by the evidence of Fire Officer Brazeau. I found her to be a credible witness. For this reason, I accept PC Taafe’s evidence about the issues germane to the grounds for the search and detention, in particular, his observations of the state of the woman, and what he was told by Fire Officer Brazeau about the text messages she saw on the woman’s phone.
10As I have just mentioned, I found Fire Officer Brazeau to be a credible and reliable witness. Although in places she had issues with her memory, she was clear about what she did and did not remember. Her narrative of events was logical and coherent. Her description of her actions made sense in terms of her being there for medical reasons.
11The events at issue began with a 911 call. The caller reported that a woman was unconscious and unresponsive in a car on Seaton Street, and had been for approximately 45 minutes. The caller reported that the car was running.
12Toronto Fire Service were the first responders on scene. Tracy Brazeau, a fire officer, testified on the application. She dealt directly with assessing the woman in the car. Fire Officer Brazeau described the purpose for the Toronto Fire attendance as a “check call” and a “medical call”.
13When Fire Officer Brazeau’s fire truck (with 3 other fire officers) arrived at the scene on Seaton Street, a man who identified himself as the 911 caller was outside on the sidewalk, and pointed them to the car. Fire Officer Brazeau walked over to the car. The woman was in the front passenger seat. Fire Officer Brazeau banged on the window and called to the woman. There was no response. The car door was not locked. Fire Officer Brazeau opened the door, and then stood back and again tried to get the woman’s attention, by calling with a raised voice words to the effect of, “it’s Toronto Fire. Are you ok? Is everything alright?” Again, there was no response from the woman.
14The lack of response from the woman concerned Fire Officer Brazeau. However, she could see that the woman was breathing. Based on her training, Fire Officer Brazeau next tried painful stimuli to wake the woman. The purpose of this is to try and bring the person to alertness, and then see if they need assistance. She squeezed the woman’s trapezius muscle hard. There was no response. Officer Brazeau testified that in her experience, a “trap squeeze” is painful, and if someone is just asleep, it will wake them. After that Fire Officer Brazeau tried a second painful stimulus, rubbing the woman’s sternum with her knuckles. The woman was still unresponsive.
15Fire Officer Brazeau noticed that the car was still running. For safety reasons, she reached over the woman to turn the car off. As she did this, the woman became responsive and said, “hey”. Fire Officer Brazeau pulled herself out of the car.
16Fire Officer Brazeau told the woman she was from Toronto Fire, and asked if she was ok. She asked her some medical questions, such as if she had allergies, if she had taken any drugs, and if she had any medical conditions, in order to find out why she had been unresponsive. The woman responded, “no” to all the questions, and denied she had taken any drugs or alcohol.
17Fire Officer Brazeau described the woman’s demeanour as “bobbing in and out of responsiveness”. The woman would close her eyes, and her head would drop down, and Fire Officer Brazeau would say, “hey, hey, stay with me”. The woman looked tired and like she wanted to go back to sleep. Fire Officer’s Brazeau thought the woman seemed like she was on drugs, and maybe had taken too many (as I outline below, I take this as admissible lay opinion). She was not very alert. She was mumbling.
18Fire Officer Brazeau observed scabbing on the woman’s arms, legs, and face, and that her teeth were falling out, and her gums were black. Based on experience, Fire Officer Brazeau testified that these observations contributed to her belief that the woman was a drug user and on drugs.
19Fire Officer Brazeau was concerned about the medical need to monitor the woman’s breathing if she had taken opiates, and to get as much information as she could before passing her on to the paramedics (Fire Officer Brazeau testified that the paramedics and two uniformed police officers arrived shortly after Toronto Fire Service, and while she was assessing the woman).
20She asked the woman if she wanted to go with the paramedics. The woman declined. She told the woman they could not leave her alone in the running car, and asked if she knew where the driver was. Fire Officer Brazeau’s concern was that the woman needed someone to take care of her. The woman did not give Fire Officer Brazeau any information about the driver, but said that she could call the driver. Fire Officer Brazeau saw the woman call someone on the phone, and say, “can you come back and get me?” Fire Officer Brazeau agreed in cross-examination that the woman did not give her any information about who the driver was.
21After the woman hung up from the phone call, she started texting. Fire Officer Brazeau looked at the texts as the woman was texting. She was concerned because she wanted to make sure someone was coming back for the woman, and if someone was not coming back, she needed to figure something else out. Someone behind Brazeau suggested she look at what the woman was texting. Because she was focused on the woman, and did not look back, Fire Officer Brazeau was not sure if it was a police officer, another fire officer, or a paramedic who suggested this, but she thought it was probably one of the police officers. But Fire Officer Brazeau was clear that her purpose in looking at the texts was to see if someone was coming back to look after the woman. Fire Officer Brazeau could not recall the exact words of the texts, but it was something to the effect of, “don’t come back; the cops are here; don’t bring the stuff”. The woman had her phone in her lap as she was texting, and Fire Officer Brazeau was close to the woman’s shoulder. Fire Officer Brazeau agreed in cross-examination that she did not know if the person the woman was texting was the same person she had called.
22Fire Officer Brazeau testified that as she read the texts, she said to the people standing behind her (fire, police and EMS officers), “I don’t think anyone is coming back for this girl”, and relayed the content of the texts she read. She was right beside the woman, and the others were behind the open car door, close-by. The woman continued to nod her head, and close her eyes, and Fire Officer Brazeau had to keep engaging her to keep her focused,
23Although Fire Officer Brazeau did not recall the exact words of the texts, I accept that her recollection of the substance of the texts is accurate. She was reading them for reasons related to her work. And further, she relayed them immediately to the other first responders standing nearby. Further, based on the evidence of the police officers who testified, the substance of the texts as conveyed to the various police officers was relatively consistent with what Fire Officer Brazeau testified that she saw.
24After that, Fire Officer Brazeau advised the EMS officers about her observations and the history, and then turned the woman over to EMS. EMS and police took over the scene, and the fire officers left. Fire Officer Brazeau dealt with the woman for only a few minutes, before EMS took over. She estimated the time as two to five minutes.
25The information about events at the scene was relayed to 51 Division Major Crime Unit (“MCU”) by PC Kim Taafe. PC Taafe was one of the two uniform officers who initially attended at the scene. He was called to the scene by the 911 call, for purposes of providing for safety of the fire and ambulance responders if necessary. I accept the key portions of PC Taafe’s evidence as they relate to grounds for detention, because they are consistent with the evidence of Fire Officer Brazeau. I accept that he made similar observations as those made by Fire Officer Brazeau about the state of the woman, that she was lethargic, down, had “lazy” facial expressions, and that she had scarring and sores on her face, which in his experience were indicators of heavy drug use. He was also of the opinion that she appeared to be on drugs.
26I also accept PC Taafe’s evidence about the substance of the text messages being passed on to him by Fire Officer Brazeau. I find that his memory is off that she conveyed this after she was done dealing with the woman. But I accept his memory about the substance of the texts being about what he interpreted as about a “possible drug deal”. I note that I take that characterization as being PC Taafe’s interpretation of the substance of the texts as told to him by Fire Officer Brazeau, not Fire Officer Brazeau’s actual words (“don’t come back; the cops are here; don’t bring the stuff”), which I find is a reasonable interpretation in the circumstances.
27I accept that PC Taafe passed on to DC Ido Sukman of MCU the contents of the 911 call, the observations of the state of the woman in the vehicle and his conclusion that she was on drugs, the substance of the text messages observed by Fire Officer Brazeau, and the licence number of the vehicle. He testified that he did so as his role that day would not involve continuing an investigation, so he passed the information on to MCU in case they wanted to investigate, because the circumstances looked like potential drug trafficking.
28For sake of completeness, I note that the vehicle was not registered in Mr. Stewart’s name, but was registered in the name of a numbered company.
29I have some concerns about the following areas of PC Taafe’s evidence. I find that his memory of the timeline is mistaken. I accept that he arrived on scene at 4:25 p.m. But I do not accept that he continued to deal with the woman until around 5:23 p.m., because all of the MCU officers were consistent that they set up surveillance in the area at 4:57 p.m., and the uniform officers were gone by that point. As I have already noted, related to this, I do not accept PC Taafe’s evidence that Fire Officer Brazeau conveyed the information about the texts after she was done with the woman. Rather, I find that the information about the texts was conveyed when Fire Officer Brazeau was assessing the woman, and as she read the texts.
30I also am doubtful about PC Taafe’s evidence that the vehicle was left running when he dealt with the vehicle. It is inconsistent with the evidence of Fire Officer Brazeau that she reached over to turn the vehicle off. And it makes no sense. PC Taafe said one of his initial concerns at the scene was potentially a care or control investigation, since the woman appeared to be impaired by drugs. It seems very unlikely that an officer would leave the vehicle running with a woman in it who appeared to be severely impaired by drugs.
31None of these areas of evidence has any direct relevance to the Charter application. And as I have noted, I accept PC Taafe’s evidence about the central information he relayed to DC Sukman which the MCU officers relied on as part of the grounds for detention, because it is corroborated by the evidence of Fire Officer Brazeau.
32I also do not accept PC Taafe’s evidence that he observed a pipe and a push rod in the woman’s purse towards the end of his interaction with her, which he said was around 5:23 p.m. As I have noted, I do not accept that PC Taafe was still on the scene at that time. But the timing is not the only problem. PC Taafe testified that he observed the purse through the open passenger window. But Fire Officer Brazeau testified that all the windows to the car were closed, and the passenger door was open. I believe her evidence, and PC Taafe’s evidence is inconsistent with it.
33More importantly, in my view, the evidence of two of the MCU officers is inconsistent with the evidence of PC Taafe on this issue. PC Taafe testified that he told DC Sukman about seeing a pipe and push rod. But DC Sukman testified that he was not told anything about observations of drug paraphernalia by the initial responding officers. I believe DC Sukman, because one would expect that if DC Sukman had been told about an observation by an officer on scene of drug paraphernalia in the woman’s purse, he would have noted it and included it in his grounds for detention. Further, DC Blair gave evidence that after the investigation was completed, he did an inventory of the woman’s purse. He had detailed notes of the content of the purse. He did not find a pipe and push rod in the purse.
34The purported observation of the pipe and push rod in the woman’s purse could potentially be relevant to the Charter issues. But in the event, I find it is not, because I find that this purported observation had no impact on the grounds for detention by the MCU officers. I find that the purported observation about a pipe and push rod in the woman’s purse was not passed on the DC Sukman of MCU. DC Sukman did not testify to being told about an observation of a pipe and push rod, nor did any of the other MCU officers. As I have noted, I accept DC Sukman’s evidence. Thus, although I do not accept the evidence of PC Taafe that he saw a pipe and push rod in the woman’s purse, I find that this had no impact on the decision of the MCU officers to detain or to search Mr. Stewart.
35I make no finding as to whether these areas of evidence where I do not accept the evidence of PC Taafe are a result of problems of memory, or deliberate falsehood. I am unable to tell. The first two (related to the timeline) are not ultimately germane to the Charter issues, as the time line is clear from the other officers. And as I have explained, the issue about the purported observation of the pipe and push rod was not passed on to the MCU officers.
36Shortly before 4:45, PC Taafe called the 51 Division MCU office and spoke to DC Sukman. I accept the evidence of DC Sukman that he was advised of the following by PC Taafe: That Taafe had attended a radio call as back up for ambulance; that the call involved a woman found passed out in a car, possibly overdosing, on Seaton south of Dundas; that one of the fire officers advised that they had seen text messages on the open phone of the woman about her boyfriend being out of the vehicle to do a drug deal – DC Sukman was clear in his evidence that he understood PC Taafe to be paraphrasing what was in the texts, based on the information received from the fire officer; and that the vehicle was a dark coloured Toyota Camry [1], and the licence number was provided.
37DC Rui Esteves was in the MCU office when DC Sukman spoke to PC Taafe. DC Esteves ran a computer search on the licence number for the vehicle. The license plate itself had no relevant hits. But the license plate was connected to the VIN number of the vehicle. A search of the VIN number showed that the vehicle with that VIN number (i.e., the same vehicle), on September 26, 2018, was involved in an event where a significant amount of drugs was seized from the vehicle.
38DC Sukman was directly involved in the events of September 26, 2018. On that date there was a call about a vehicle possibly being broken into. DC Sukman attended as a uniform officer. Four men were there, including Damion Stewart. DC Sukman confirmed Mr. Stewart’s identity on that date with identification and a police database check. Mr. Stewart said the car belonged to a friend, that he had locked himself out, and he wanted to get into the vehicle because his identification and phone were in it. The vehicle was locked, and was parked illegally. DC Sukman told Mr. Stewart that because he was not the registered owner, the police could not open the vehicle for him. But they would tow the vehicle since it was parked illegally, and then when it was towed, he could get his identification back. Mr. Stewart declined to wait for the tow. The vehicle was towed. When an inventory search was done (in order to ensure no allegation of theft by the tow operator was later made), 8 grams of heroin and 13 grams of crack cocaine were found, and also identification in the name of Mr. Stewart, and a phone (which I assume was not specifically connected to anyone). No charges were laid.
39In addition, DC Esteves testified that he had previously arrested Mr. Stewart on two occasions. One occasion related to a surety warrant, and is not particularly relevant. But the other occasion was an arrest for a drug offence in late 2018 or early 2019. DC Esteves also testified that he was aware at that time that Mr. Stewart had a criminal record for drug offences, but he did not look it up on April 29, 2019 prior to the detention. DC Sukman also testified, and I accept his evidence, that he received information from officers on the MCU team that they had arrested Mr. Stewart for drug offences in the past. In addition, DC Esteves testified that he was aware that Mr. Stewart had “a reputation” as a drug dealer in the area.
40Finally, DC Sukman testified that he was aware of confidential informant information about Mr. Stewart that he was in possession of or had access to a firearm. Because of informer privilege, the information provided to the court about that information was limited. The information, according to DC Sukman was as follows: The information pre-dated DC Sukman’s interaction with Mr. Stewart on September 26, 2018. The information was that Mr. Stewart had possession of or access to a firearm. The source had proved reliable information in multiple other investigations. The particular information about Mr. Stewart having access to a firearm was proven “reliable” or “successful”, but did not lead to an arrest.
41Various of the officers, and also Fire Officer Brazeau, gave evidence about Seaton Street and the Dundas and Sherbourne area having problems with drugs and crime.
42I will address my assessment of these factors in relation to grounds for detention and search later in my reasons.
43At 4:45, the MCU team held a briefing led by DC Sukman. DC Sukman conveyed the information outlined above at paragraphs 36-40 to the other officers at the briefing. I note that some of the officers recalled all or most of the information that DC Sukman provided at the briefing. Some officers only recalled portions of it (for example, DC Freeman only recalled being advised of the confidential informant information about Mr. Stewart having access to a firearm, and the details about the vehicle parked on Seaton Street). Based in particular on the evidence of DC Sukman, DC Esteves, DC Christopher Durst, and DC Allistair Blair, I am satisfied that all of the information was conveyed to the team at the briefing.
44The briefing was short. The MCU officers wanted to get to the scene quickly to begin surveillance, because the driver could return to the vehicle at any time and possibly drive away. Before leaving the Division, members of the team viewed a photo of Damion Stewart on the computer.
45At 4:51 p.m., the MCU team of approximately 7 officers left 51 Division, in 3 or 4 unmarked vehicles (and in plain clothes). They arrived at or near the scene on Seaton Street at 4:57 (some officers were a block or two away). The they set up surveillance on the vehicle.
46DC Sukman testified, and I accept this evidence, that their plan was to conduct surveillance on the vehicle, with the targets being the vehicle and Mr. Stewart. He was of the view that based on the totality of the information, they had grounds to investigatively detain Mr. Stewart if he returned to the vehicle, and they would conduct surveillance to see if they witnessed anything that would give grounds for arrest (such as a hand to hand transaction). How things played out would depend on what they observed. Similar evidence was given by DC Christopher Durst.
47No observations of note were made before 6:09 p.m. At 6:09 p.m., Mr. Stewart was observed walking eastbound along Dundas, and then southbound on Seaton. He walked to the target vehicle and got into the driver seat. The officers continued their surveillance until 6:18 p.m., but made no further observations of note. Mr. Stewart and the woman were both inside the vehicle at that time.
48DC Durst, who was the road boss that day, was concerned that the vehicle would go mobile. He wanted to avoid doing a mobile takedown, because it often involves crashing vehicles and has a greater risk of injury. He called a takedown at 6:18 p.m. He testified that in his view they had grounds for investigative detention of Mr. Stewart at that point, but not for arrest. DC Durst testified that he did not indicate when he called the takedown if it was for arrest or investigative detention, because he relies on the experience of the members of the team to take the steps they assess they are legally entitled to take.
49Most of the officers testified, like DC Durst, that in their view, at the time the takedown was called, there were grounds for investigative detention of Mr. Stewart, but not grounds for arrest (DC Sukman, DC Esteves, DC Freeman, and DC Blair, in addition to DC Durst). The five officers who testified that they had grounds for an investigative detention testified that it was the constellation of factors outlined above that gave them grounds for an investigative detention, but since they had not observed and actual drug transaction, such as a hand to hand transaction, it did not rise to reasonable and probable grounds for arrest.
50I focus on one aspect of the evidence of DC Blair. He testified that at the time of the takedown, in his mind what was being done was an investigative detention of Mr. Stewart. He explained that the reason it was an investigative detention was that at the time of the takedown, based on the information from the briefing, and the observations at the scene on Seaton Street, nothing was yet confirmed that Mr. Stewart was in possession of either a firearm or drugs. In cross-examination, DC Blair was asked about an entry in his notebook, where he described going over to the driver side of the vehicle “to assist with the arrest of Mr. Stewart.” DC Blair agreed that he had made that entry, but said it was a mistake in his notes, and he was always of the view that it was an investigative detention.
51I have considered that entry in DC Blair’s notes in assessing his credibility, particularly on this issue. I accept DC Blair’s evidence that in his mind, at the time of the takedown, he was conducting an investigative detention, and he simply made an error in his notes. DC Blair’s explanation of why he believed it to be an investigative detention is logical on the information known to him, and is consistent with most of the other officers.
52DC Walker testified that at the time of the takedown he understood the takedown to be an arrest, and he felt there were grounds for arrest. But like the other officers, he said when the takedown was called no specific direction was given as to whether it was an investigative detention or an arrest. In retrospect, DC Walker was of the view that he was mistaken about it being an arrest. He attributed the mistake to the fact that usually the MCU team does its own observations, and would not intervene until they saw something the was grounds for arrest like a hand to hand transaction. I note that DC Walker at no point laid hands on either Mr. Stewart or the woman passenger.
53When the takedown was called at 6:18 p.m., the officers converged on the target vehicle. Some officers were on foot, and in addition, two of the unmarked police vehicles were driven to block in the target vehicle (but did not hit it). The officers all arrived quickly, but not at the exact same time, as some of the officers were further away on Dundas Street.
54When they arrived at the car, DC Esteves was on the passenger side near the front of the front passenger door (near the pillar that divides the front windshield from the front side door). DC Esteves could not recall if he made his observations through the front windshield, or the front passenger window, or a combination. DC Sukman was on the driver side near the front door, and made his observations through the front driver side window. DC Walker was on the driver side, but further forward than DC Sukman, and placed himself leaning over the hood, looking in the front windshield. DC Freeman was standing at the front of the vehicle, looking over the hood through the windshield. DC Blair started on the passenger side, but then made his way around the back of the vehicle to the driver side, a bit further back from DC Sukman, near the pillar that separates the front and rear driver side doors. DC Blair observed through the driver side window. DC Durst was not part of the takedown.
55When the van driven by DC Esteves (with DC Freeman as the passenger) pulled up to the passenger side of the vehicle, DC Esteves and DC Blair tried to open the passenger door. It opened, but then closed back shut. DC Esteves believed it closed because it hit the side of the van as it was opening. DC Blair saw the woman’s hand near the door, but was not able to say why the door closed. I accept that it was opened briefly and then closed. All of the officers agreed that after that the car doors were locked (and the only possible inference is that one or both of the occupants locked them).
56The officers were shouting commands at the occupants of the vehicle, identifying themselves as police, and telling the occupants to open the car and show their hands. The occupants were not opening the doors. The MCU officers then saw Mr. Stewart make a reaching motion as if he was reaching for or trying to hide something under the seat. All of the MCU officers testified that in the context of the information they had, and Mr. Stewart’s actions, they were concerned that he may be hiding or reaching for a firearm or other weapon.
57The motion was described differently by the officers who observed it from the side, than by the officers who observed it from the front. DC Sukman, DC Esteves, and DC Blair, who observed it from the side, described it as Mr. Stewart reaching his hands under the seat (i.e., under the front of the seat). DC Walker and DC Freeman, who observed from the front through the windshield, both described it as reaching over to Mr. Stewart’s right, in the area between the driver seat and the centre console (but clearly reaching downward in that area). Most of the officers also described the motion with words such as fiddling, or fumbling, or reaching.
58I accept the evidence of the MCU officers that they saw Mr. Stewart trying to reach for or hide something under the seat. I accept their evidence that they were concerned it could be a firearm or other weapon. All of the officers agree that they saw Mr. Stewart apparently trying to reach for or hide something. I find their evidence credible. To the extent they describe the motion slightly differently, I find that it is due to their different vantage points, arriving at slightly different times, and the events happening very quickly.
59The defence suggested by way of cross-examination, and argument, that because the windows of the car were heavily tinted (which was not really in dispute as it relates to the side windows), the officers could not have seen the hand movements they claim to have seen.
60I do not accept this defence argument. I accept that the side windows were relatively darkly tinted. It was not in dispute that the front windshield was not tinted. DC Walker and Freeman were looking in the front window, so tint was not an issue for their observations. And DC Sukman and Blair acknowledged the tint, but said they were still able to see movement within the vehicle (DC Esteves could not recall if the windows were tinted). There was no evidence to contradict the evidence of DC Sukman, DC Esteves and DC Blair that they were able to see in through the front side windows, despite the tint. I note that the movement the officers said they were seeing was a significant enough movement, that I accept they would be able to see it from their close proximity to the windows, despite a dark tint. A tinted window is not the same as an opaque object. It was daylight out, and the officers were close to the vehicle. I accept that they could see in. Although PC Taafe said the back window was tinted too darkly for him to see in earlier, he gave no evidence about the front side windows. And as I have noted, I have some concerns about the reliability of PC Taafe’s evidence where it is not corroborated by others.
61Once the officers saw the hand movements under the seat that gave them concern for a firearm or other weapon, and given that the occupants of the vehicle had locked the doors and were not obeying the commands to show their hands and open the vehicle, some of the officers attempted to break the driver side window by hitting it with their firearms. DC Walker tried and was not successful. They DC Sukman tried by hitting his firearm on the window. He could not recall if he hit the window once or twice, but he succeeded in breaking the window.
62Then DC Sukman and DC Blair removed Mr. Stewart from the vehicle (other officers removed the woman). Both DC Sukman and DC Blair testified that Mr. Stewart was cuffed almost immediately on being taken out of the vehicle. DC Sukman did not recall Mr. Stewart being taken to the ground. DC Blair testified that he took Mr. Stewart to the ground briefly, in order to cuff him, but then stood him up right away. As it appears that DC Blair took the lead on removing Mr. Stewart from the vehicle, I accept his evidence that Mr. Stewart was briefly taken to the ground, for the purpose of putting handcuffs on him, and then was stood up. I attribute the difference between the two officers on this issue to an issue of memory on the part of DC Sukman, and not dishonesty, and also that it was DC Blair who played a more active role in removing Mr. Stewart from the vehicle. I accept DC Blair’s evidence that it was a matter of seconds that Mr. Stewart was taken to the ground, and he was stood back up as soon as he was handcuffed. I note that there was no evidence of any injuries to Mr. Stewart. DC Blair testified that he did not see any injuries, and Mr. Stewart did not mention any.
63DC Sukman and DC Blair testified, and I accept, that DC Sukman told Mr. Stewart he was under investigative detention for drugs when he was removed from the vehicle. DC Blair maintained control of Mr. Stewart (now standing).
64Once Mr. Stewart and the woman were removed from the vehicle, DC Esteves reached under the driver seat. He found a ziploc baggy containing what he believed to be fentanyl. DC Esteves testified that he searched under the driver seat for officer safety reasons, because he was concerned there may be a firearm under the seat. He had this concern because of seeing Mr. Stewart reach under the seat when the car was locked. At times in his evidence DC Esteves acknowledged that he also thought he might find drugs. I find that he did subjectively have an officer safety concern about a firearm or other weapon when he reached under the seat. It is not surprising, given the subject matter of the investigation, that he also thought it was possible he would find drugs.
65All of the events from the time the takedown was called until the drugs were found under the seat by DC Esteves happened very quickly, within a minute or two – 30 seconds to a minute from when the officers were at the car until the driver side window was broken, and another 30 seconds or a minute from when the window was broken until DC Esteves found the bag containing drugs under the driver seat. The time from when Mr. Stewart was removed from the vehicle to when DC Esteves found the drugs under the seat was very short – measured in seconds. Mr. Stewart was pat searched after the drugs were found.
66At the time they first approached the vehicle, some of the officers had their firearms drawn, but not pointed. DC Sukman did not initially have his firearm drawn, but took it out when he saw Mr. Stewart reaching under the seat. At that point he had officer safety concerns. And he used the firearm to smash the driver side window. Similarly, DC Blair testified that as he approached the car, he had his firearm drawn and in the “low and ready” position, which is at waist level, pointed at the ground, and with his other hand covering the hand holding the firearm. He kept it there when he saw Mr. Stewart reaching under the seat. But after a few seconds when Mr. Stewart did not produce a weapon, he put his firearm away, and tried to bang on the window to break it. DC Freeman testified that he had his firearm drawn, but not pointed as he approached the car. DC Walker could not recall when he drew his firearm, but he did not point it until he saw Mr. Stewart reaching down beside the seat. Once Mr. Stewart did not produce a firearm after a few seconds, DC Walker then tried to use his firearm to break the driver window by banging the firearm on the passenger window (this was before DC Sukman tried to do so).
67Once the drugs were found, DC Sukman advised Mr. Stewart that he was under arrest for possession for the purpose of trafficking, and advised him of his right to counsel. He did a pat search of Mr. Stewart, and located a cell phone, and a quantity of Canadian money. No drugs or weapons were found on Mr. Stewart’s person (subsequent events are not relevant to this application).
Relevant Law and Application to the Facts
Were there grounds for investigative detention of Mr. Stewart at the time of the detention?
68Mr. Stewart argues that there at the time police commenced the detention, there were not grounds for investigative detention. The Prosecution argues that there were ample grounds to support an investigative detention.
69The police may detain and individual for investigative purposes if they have reasonable grounds to suspect that the individual has committed or is committing a crime, and the detention is justified as reasonably necessary in all of the circumstances. In order to strike the right balance between the investigative duties of the police and the public interest in law enforcement on the one hand, and individual liberty on the other, the restriction on liberty caused by the investigative detention must be brief, and the manner of the detention reasonable and tailored to the totality of the circumstances. An investigative detention does not require the same strong connection between the detained individual and the offence being investigated as would an arrest. However, a detention contemplated by an investigative detention cannot interfere with individual liberty to the extent contemplated by a full arrest. An investigative detention must not be allowed to become a de facto arrest: R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52 at paras. 24-35; R. v. McGuffie, 2016 ONCA 365 at paras. 35-38.
70Reasonable suspicion is an objective standard. The facts known to police (which the police assert as the basis for the detention), when considered together, must objectively support a reasonable possibility that the individual has committed or is committing a criminal offence. Reasonable suspicion differs from reasonable and probable grounds in that reasonable and probable grounds means credibly based probability that the individual has committed or is committing a criminal offence, while reasonable suspicion means credibly based possibility that the individual has committed or is committing an offence. Although reasonable suspicion is a lower standard than reasonable and probable grounds, its objective component is designed to allow judges to review detentions, and is an important safeguard of individual liberty: Mann at paras. 27, 34; R. v. Chehil, 2013 SCC 49 at para. 27; R. v. Ahmad, 2020 SCC 11 at paras. 25, 45-47, 60, 82-83.
71I am satisfied that there was reasonable suspicion to support an investigative detention of Mr. Stewart. At the time the detention commenced, the MCU officers had the following information:
- That a woman was passed out in a vehicle on Seaton Street, and had been for 45 minutes. Based on the observations of the woman at the scene by Fire Officer Brazeau and PC Taafe, it appeared she was impaired by drugs;
- The woman had sent texts to someone saying, “don’t come back; the cops are here; don’t bring the stuff”;
- The police check on the vehicle licence plate provided a VIN number for the vehicle. A further check on the VIN showed that drugs had been seized from the same vehicle on September 26, 2018, approximately seven months earlier, on an occasion when Damion Stewart was associated with the vehicle, and where his identification was also found in the vehicle (although this event did not lead to charges being laid);
- That Damion Stewart had previously been arrested for a drug offence by DC Esteves;
- When the MCU officers conducted surveillance, they observed Damion Stewart walk to and get into the vehicle at 6:09 p.m. The officers were able to make the identification based on having seen a photo of Mr. Stewart on the computer before they went to the scene, and for some of the officers, previously personal involvement with Mr. Stewart. This observation of Mr. Stewart getting into the driver seat of the car directly associated Mr. Stewart with the vehicle in which a woman was passed out apparently on drugs that day, and which seven months before drugs had been found in, along with his identification, at a time when Mr. Stewart was associated with the vehicle.
72I accept that no actual drugs or drug paraphernalia had been observed up to the point of the detention. But taking all of these circumstances together, I find that the MCU officers had reasonable grounds to suspect that the individuals involved with the vehicle were committing or had committed a drug offence.
73With the exception of DC Walker, the MCU officers all testified that the purpose of the detention was an investigative detention.
74There are a few specific issues I want to address before moving to the issue of whether the manner in which the detention was conducted infringed Mr. Stewart’s s. 9 rights.
75First, although the defence did not stress this point in submissions, there was significant cross-examination of Fire Officer Brazeau and PC Taafe regarding their observations of the woman passed out in the vehicle that led them to conclude that she was impaired by drugs. The cross-examination on this issue was, in many respects, similar to cross-examinations one often hears in impaired driving trials when considering reasonable suspicion or reasonable and probable grounds. The cross-examination tried to show that the cause of the woman’s state could have been from something other than drugs – perhaps tiredness, or alcohol, and made the point that no drugs were seen.
76In my view, this argument misses the point. The issue is not whether it was proven to a certainty that the woman had taken drugs, or whether there possibly could have been other explanations for her state. Rather, the issue is whether, considering the whole constellation of circumstances, there was reasonable suspicion that an offence had been or was being committed by Mr. Stewart at the time of the detention. One factor contributing to whether the reasonable suspicion threshold was met was whether the woman appeared to be high and passed out from drugs. In my view, based on the evidence in particular of Fire Officer Brazeau, but also of PC Taafe, of the whole constellation of observations of the woman (and including Brazeau’s attempts to wake her), it was an entirely reasonable conclusion that the woman was high on drugs. In my view, the observations of Fire Officer Brazeau and PC Taafe, and their conclusions that the woman was impaired by drugs, are properly an area of lay opinion evidence, admissible pursuant to [R. v. Graat, [1982] 2 S.C.R. 819, 1982).
77Second, I do not give weight in my assessment of grounds for the detention and search to the evidence about Seaton Street and the Dundas and Sherbourne area generally being a “bad neighbourhood” with a lot of drug problems. Some of the officers testified quite colourfully on this issue. In my view this evidence has little or no probative value. I note first that it was an incomplete picture of the neighbourhood. The officers focussed on the presence of shelters and drugs, and mental health issues, without mentioning the presence of million and a half dollar Victorian homes, something I can take notice of as a long-time resident of the City of Toronto. But that aside, the unfortunate reality is there are problems with drugs all over the city. Some neighbourhoods have worse problems than others. But the fact that someone lives in or frequents a neighbourhood with a worse problems with drugs does not mean that they are entitled to lesser protection of their Charter rights.
78Third, I do not give any weight to the evidence from DC Esteves that Mr. Stewart had “a reputation” as a drug dealer. As I have outlined, the evidence about specific past involvement with drugs by Mr. Stewart, such as arrests, or the incident on September 26, 2018, are specific and concrete enough to provide useful objective support to grounds for detention. An assertion about Mr. Stewart’s “reputation” as a drug dealer is not.
79Fourth, I do not rely on the confidential informant information about Mr. Stewart possessing or having access to a firearm in my conclusion that the officers had reasonable suspicion to support an investigative detention. The information was dated. DC Sukman did not give its exact date in evidence, but testified that it pre-dated his September 26, 2018 interaction with Mr. Stewart (when the drugs were found in the same vehicle). Thus, it was at least seven months old at the time of the detention of Mr. Stewart in this case. Further, the confidential informant information was elicited before the court in what was essentially a conclusory fashion – there was information that Mr. Stewart possessed or had access to a firearm, and it came from a confidential information who had proven reliable in other investigations, and this particular information was proven reliable. I appreciate the need to protect confidential informants. But the difficulty is that the manner in which the information was put in evidence in this case is so conclusory that the court cannot review and assess it in any meaningful way. In my view, if the confidential informant information had stood alone, it would not have been sufficient, given its age and conclusory nature (as it was elicited in court) to support reasonable suspicion.
80But in my view even absent the confidential informant information about access to a firearm, there was reasonable suspicion in this case at the time of the initial detention for an investigative detention of Mr. Stewart.
81I will return to the confidential informant information about Mr. Stewart having access to a firearm in my analysis of the manner of detention and the search, because in my view, although confidential informant information was not sufficient as a basis for an investigative detention, given that the police had other information that did support an investigative detention (as outlined at para. 71 above), in my view, they could not ignore the dated firearm information in assessing officer safety and public safety at the time of the detention.
82I should make clear, because it is relevant to Mr. Stewart’s next argument, that although I accept that the police had reasonable suspicion to allow an investigative detention at the time of the initial detention, they did not have reasonable and probable grounds. Thus, prior to the drugs being found, there were not grounds for an arrest.
Was the manner of detention unreasonable?
83The defence submits that the manner of the detention, in particular the forcefulness with which it was executed, and the handcuffing as part of the initial detention was unjustified and rendered the manner of detention unreasonable and arbitrary. The defence argues that the detention was a de facto arrest. The Prosecution submits that the manner in which the detention was carried out was reasonable and proportionate, in light of what it submits were officer safety concerns both initially, and as the detention unfolded.
84As I have noted, the case law is clear that investigative detentions must not be allowed to become de facto arrests: Mann at para. 35; McGuffie at paras. 37-38. However, use of force by officers may be justified in conducting an investigative detention. This will depend on an objective assessment of all of the circumstances, including that in many cases investigative detentions take place in fluid and dynamic situations.
85What is meant the term “de facto arrest” used in Mann is not explicitly defined in the case law. However, based on my review of the jurisprudence, there are several factual circumstances that are often present where a detention is found to be a de facto arrest.
86The clearest indicator of a de facto arrest is lengthy detention in the absence of reasonable and probable grounds. Unduly lengthy detention, in the absence of reasonable and probable grounds, while further investigation or searches are conducted is often an indicator of a de facto arrest: McGuffie at paras. 37-39; R. v. Zanganjori, 2019 ONSC 3113 at paras. 45-48. As is clear from Mann and its progeny, an investigative detention is only justified where it is brief. Only where an investigative detention is brief does it strike a constitutional balance between the individual’s right to liberty and to be left alone, and the state interest in criminal investigation.
87Handcuffing can be an indicator of a de facto arrest, but not always: see R. v. Curry (Byfield), 2013 ONCA 420 at paras. 5-9; McGuffie at paras. 37-38; R. v. Campbell, 2016 ONCJ 236 at paras. 117-128; R. v. Zanganjori at paras. 45-48. On my reading of the case law, handcuffing will generally not indicate de facto arrest where there are officer safety concerns that objectively justify it, and where the restriction on liberty entailed in handcuffing is brief. But where either there are not officer safety concerns, or asserted officer safety concerns are not objectively supported, handcuffing will often indicate a de facto arrest.
88Finally, searches which are not objectively supported by officer safety concerns will often be an indicator of a de facto arrest. Lack of support for a search being justified by officer safety could arise due to officer safety claims not being objectively supported on the record, or from the scope of a search exceeding what is justified by officer safety.
89I do not suggest that these indicators are a closed list. Whether the manner of detention is unreasonable or arbitrary must be assessed in the full factual circumstances of each case. I agree with my colleague Justice Nakatsuru that there is no magic to the words de facto arrest: Campbell at paras. 117-128. In substance, what is meant by de facto arrest is a detention in the absence of reasonable and probable grounds (even if grounds to support an investigative detention – reasonable suspicion – are present), where the manner of detention has become unreasonable – usually due either to its prolonged length, physical restraint that is not justified by officer safety concerns, or searches that are not justified by officer safety concerns.
90The investigative detention in this case was not lengthy (prior to the drugs being found, at which point there were reasonable and probable grounds for arrest). Thus, the factors that require scrutiny in this case are the breaking of the driver side window, the taking of Mr. Stewart to the ground briefly by DC Blair, the handcuffing, and the search under the driver seat (at this stage I will only consider whether there was a reasonable basis to support an officer safety search – I will deal with the scope and location of the search under the s. 8 issue).
91In my view the reasoning in Curry is applicable to this case, and neither the breaking of the window, the handcuffing, nor the search under the driver seat turned the investigative detention into a de facto arrest. In Curry, the Court of Appeal upheld the finding by the trial judge that brief handcuffing and a search was justified by officer safety concerns, writing as follows:
5Second, the trial judge found that when the police took the appellant to the ground, they were acting in the exercise of their common law duty to protect life.
6Again, we agree. The take down of the appellant occurred after a police officer observed a gun in the possession of one of the appellant’s co-accused and shouted a warning to the other police officers. The officers attending to the appellant did not know who had the gun. Their decision to take the appellant to the ground after they heard the word “gun” shouted out by a fellow officer was made in a volatile and rapidly evolving situation. In the circumstances, this decision was both eminently reasonable and a lawful exercise of the officers’ common law detention power.
7Third, the trial judge found that the subsequent handcuffing and search of the appellant were similarly carried out pursuant to the police common law power of investigative detention. He stated, at para. 115:
In the case at bar, the handcuffing and the pat search for weapons of Curry [and his co-accused] lasted no more than a few seconds. They remained on the street and were not taken anywhere and confined. They were both compliant and their guns were immediately discovered. This all fits with the very definition of a common law investigative detention pursuant to Mann. [Citations omitted.]
8He went on to conclude, at para. 116: “For all these reasons, I was satisfied that the police were, in reality, exercising common law powers of investigative detention and not statutory powers of arrest.”
9We see no error in this conclusion. It follows, as found by the trial judge, that the impugned police action did not breach the appellant’s ss. 8 and 9 Charter rights.
92As I have outlined above, the officers in this case had reasonable suspicion for the investigative detention. In addition, similarly to Curry, I find that they had a reasonable basis to have officer safety concerns at the time that DC Sukman broke the driver side window, DC Blair removed Mr. Stewart from the vehicle and took him to the ground and cuffed him, and immediately afterward, DC Esteves searched under the driver seat.
93When the officers approached the vehicle, the vehicle was initially unlocked, as the officers on the passenger side were able to open the passenger door. However, the passenger door then shut. When the officers on both sides tried the door handles after that, the doors would not open. The inescapable inference from this is that one (or both) of the occupants of the vehicle locked the car doors. Then the occupants of the vehicle did not obey the loudly shouted commands of the officers identifying themselves as police and telling the occupants to open up. The officers observed Mr. Stewart reach under the driver seat, as if he was either hiding something or reaching for something. This was a very fast moving, and dynamic situation.
94Taking all of these circumstances together, it was reasonable for the officers to be concerned that there may be a firearm or other weapon under the driver seat. In these circumstances, I find that it was reasonable to break the driver window, remove Mr. Stewart from the vehicle, and briefly take him to the ground in order to handcuff him, until a search could be conducted to address the officer safety concerns. I accept the evidence of the MCU officers that these were the reasons they had officer safety concerns. And I find that their concerns were reasonable in all of the circumstances.
95In the event, when DC Esteves search under the driver seat, he found drugs, and at that point there were reasonable and probable grounds for arrest (I will return to the scope of the search below).
96I return to the issue of the dated confidential informant information that Mr. Stewart had access to a firearm. As I have outlined above in relation to the grounds for the detention, in my view, the confidential informant information standing alone could not have provided a basis for detention. But given there were other grounds to support an investigative detention, and given the police observations of Mr. Stewart not complying with the police commands to open the car, and reaching under the driver seat, the police were entitled to give some weight to the confidential informant information that Mr. Stewart had some number of months previously had access to a firearm. Hypothetically, if Mr. Stewart had complied with the initial detention, if the car doors had not been locked by one of the occupants, and if Mr. Stewart had not been observed reaching under the seat, the dated confidential informant information alone may not have been sufficient for objective officer safety concerns. But those are not the facts as they played out.
97I also appreciate that on the facts in Curry, one of the officers had actually saw a firearm. But actually seeing a firearm is not required for officers to have a reasonable basis for officer safety concerns during an investigative detention: McGuffie at paras. 51-52. Rather, the officers must have a reasonable belief that officer safety or the safety of others it at risk. Reasonable suspicion that the detainee has a firearm meets this standard. As I have outlined, based on the totality of the circumstances, I find that the officers had a reasonable basis for officer and public safety concerns once the occupants of the vehicle locked the doors, did not obey the commands to open the doors, and Mr. Stewart reached under the driver seat
98Finally, I note that the amount of time that Mr. Stewart was taken to the ground was extremely brief, a matter of seconds, and was done only to facilitate handcuffing Mr. Stewart, in light of the officer safety concerns. This was not a case where a detainee was handcuffed for an extended period of time during a purported investigative detention. The drugs were found under the seat by DC Esteves within 30 seconds to one minute after Mr. Stewart was removed from the vehicle and handcuffed. From that point onward, although Mr. Stewart remained cuffed, there were reasonable and probable grounds for an arrest for a drug offence. He was placed under arrest. And the fact of the arrest justified the continued handcuffing.
99I turn then to the search under the driver seat.
Was the Search under the driver seat justified by officer safety concerns?
100The defence submits that the search conducted under the driver seat of the vehicle by Detective Esteves exceeded the scope of an officer safety search pursuant to an investigative detention. The defence takes issue both with whether there were reasonable officer safety concerns, and the scope of the search under the driver seat of the vehicle. The Prosecution submits that the search under the driver seat was justified by officer safety concerns, and did not exceed the scope of a search based on officer safety concerns incident to an investigative detention.
101Police officers may search incident to a lawful investigative detention where they have a reasonable basis to believe that their safety or that of others is at risk. An officer’s decision to search cannot be justified on the basis or vague or non-existent concerns for safety, or premised upon hunches or mere intuition. The scope of the search is limited to searching for weapons, and does not allow searching for investigative or evidentiary purposes. Because searches incident to an investigative detention are warrantless searches, the Prosecution bears to burden on a balance of probabilities to show that the search was reasonable in the circumstances. In summary terms, a search incident to an investigative detention will only be justified if it is reasonably necessary, reasonably executed, and based on a reasonable belief by the police that officer safety or the safety of others is at risk in the totality of the circumstances: Mann at paras. 36-45; McGuffie at paras. 48-58; R. v. Plummer, 2011 ONCA 350 at paras. 47-66; R. v. Peterkin, 2015 ONCA 8 at paras. 42-54.
102A reasonable suspicion that an individual has a handgun is a sufficient basis to conduct a pat search incident to an investigative detention: McGuffie at para. 51-52.
103Often, officer safety concerns will be satisfied by a pat search of the person who is detained Mann at paras. 36-45. If on the totality of the circumstances in a given case, officer safety concerns would be addressed by a pat search, then any broader searches would not be justified as part of the investigative detention, and would infringe the s. 8 rights of the person detained.
104However, the justification for the search powers incident to investigative detention is grounded in reasonable safety concerns for officers or members of the public. If, in all of the circumstances reasonably assessed, a pat search would not alleviate the officer safety concerns, search of other places is permitted, still limited in scope by the specific officers safety concerns in the particular case. This principle was clearly enunciated by the Ontario Court of Appeal in Plummer at paras. 57-60 (see also concurring reasons of Sharpe J.A. at paras. 73-78):
57The principle enunciated in Mann is that s. 8 Charter rights must give way to the specific, articulable and reasonable safety concerns that an officer harbours for him/herself and nearby members of the public. The balance between the right to be free from unreasonable searches and legitimate safety concerns is at the core of Mann. The appellant’s bright line approach shifts the focus from this balance to a different factor, the location of the search.
58There is no logic in this shift. If, as the appellant concedes, a pat-down search for safety reasons is permissible, why should a broader search (for example of a bag in a car) not be available if the result of the pat-down search (for example, discovery of a bulletproof vest) continues to present a reasonable safety concern? In my view, Mann answers this question at the level of principle. Mann circumscribes police conduct by reference to a valid protective purpose, not by whether the search is of the person, or of a particular place or object in the vicinity.
59A similar logic and similar answer govern the United States jurisprudence on this issue. In Terry v. Ohio, the United States Supreme Court enunciated the power to search the person incidental to an investigative detention. Fifteen years later, in Michigan v. Long, 463 U.S. 1032 (1983), the court expanded the power, still anchored in safety concerns, to a search of the interior of a vehicle driven by the person detained. Justice O’Connor explained the logic of the extension at p. 1050:
Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. See Terry, 392 U.S., at 21.
60Finally, with respect to the appellant’s second submission, I do not agree that the trial judge provided no definition of the search power in this case. He identified and applied the leading cases relating to investigative detentions, including Mann, and concluded:
[W]here the police see conduct consistent with concealing something in the area of the front passenger seat, have information the person may be carrying a gun and wearing a bullet proof vest, and confirm he is wearing a bullet proof vest, to find that the police had to stop their search once they found he was not carrying a gun on him, flies in the face of concerns for officer safety.
105The Court of Appeal decision in R. v. Lee, 2017 ONCA 654 also supports the proposition that searches beyond a pat search may be justified for officer safety reasons during an investigative detention. Whether a broader search is justified will depend on a consideration of all of the circumstances include.
106I find that there were officer safety concerns at the time the search was done. My reasons for this finding are the same as my finding that handcuffing Mr. Stewart immediately upon removing him from the car was justified for a brief time until officer safety concerns were addressed, set out above at paras. 92-94. I will not repeat them.
107That leaves the issue of the scope of the search – did officer safety concerns justify searching under the driver seat? In my view, considering all of the circumstances, a search under the driver seat was reasonable and was justified by officer safety concerns. Mr. Stewart had just been observed by the officers reaching under the driver seat, as if he was hiding something or reaching for something, in a context where the occupants of the car had locked the doors and were not complying with the police direction to open the car. I find that this constellation of factors gave the officers reasonable suspicion that Mr. Stewart may be in possession of a firearm or other weapon, and that he had hidden it under the seat.
108In the circumstances, having just seen Mr. Stewart reaching under the seat while he was not complying with the police commands to open the car, the officer safety concerns would not have been satisfied by pat searching Mr. Stewart: See Plummer at paras. 62-66, 73-78. Searching under the driver seat was reasonable in the circumstances. A broader search of the vehicle would not have been justified on officer safety grounds. But only a search under the driver seat was done at that time.
109Regarding the dated confidential informant information about Mr. Stewart having access to a firearm, as I have outlined above at para. 96, although I am doubtful that it would have provided a basis for officer safety concerns if it had stood alone, in my view, given there were other grounds to support an investigative detention, and given the police observations of Mr. Stewart not complying with the police commands to open the car, and reaching under the driver seat, the police were entitled to give some weight to the confidential informant information that Mr. Stewart had some number of months previously had access to a firearm.
110The defence argues that at the time the search under the driver seat was conducted, both Mr. Stewart and the passenger were under police control, and Mr. Stewart was handcuffed. Based on this, the defence argues there was no officer safety concern at that time. In my view, for reasons similar to those in Plummer at paras. 62-66, 73-78, I find that this argument fails to consider that at the time the search under the driver seat was conducted, Mr. Stewart was only under investigative detention. Thus, the police were not entitled to detain him for a long time, for example, to consider getting a warrant to search the vehicle. If there were officer safety concerns, which I find there were, the police were entitled to search to alleviate those concerns (a pat search, and on the facts of this case, under the driver seat), quickly, so that if the officer safety concerns were addressed, Mr. Stewart could be on his way.
111The defence argued that DC Esteves was not really motivated by officer safety concerns when he searched under the driver seat, but rather was searching for evidence. As I have outlined above, I accept the evidence of the officers that they had officer safety concerns, and I find that there was an objective basis for those concerns. I also accept the evidence of DC Esteves that the reason he search under the driver seat was to check if there was a weapon there. He was also aware that he may find drugs – not surprising given it was primarily a drug investigation. But if a search is motivated by officer safety, and there is an objective basis for of officer safety concerns, as I have found there is here, the fact that evidence may also be found during an officer safety search does not invalidate the search.
112The defence also argued that the fact that a pat search was not done prior to DC Esteves searching under the driver seat supported the position that the search was not a valid officer safety search. As I have noted above, the situation was very fast-moving and fluid. As I have outlined, in this case officer safety concerns justified a pat search of Mr. Stewart, and a search under the driver seat. In my view, the order in which those searches were done is of no moment. A pat search was done soon after when Mr. Stewart was placed under arrest.
Conclusion
113For these reasons, I find that the police did not infringe Mr. Stewart’s rights under either s. 8 or s. 9 of the Charter. As I have not found any breach of Mr. Stewart’s Charter rights, it is not necessary for me to consider s. 24(2) of the Charter. The application is dismissed.
114I thank both counsel for their assistance in the hearing of the application.
Justice J. Copeland
Released: August 5, 2020
COURT FILE NO.: CR-20-90000049 DATE: 20200805 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – DAMION STEWART
REASONS FOR JUDGMENT ON CHARTER APPLICATION
Justice J. Copeland
Released: August 5, 2020
Footnotes
1Some of the officers referred to the vehicle as a Toyota Corolla. I know these are different makes, but I take the difference as a memory error, which is not significant to the Charter argument, since a licence number was provided by PC Taafe.
