DATE: 20030612

DOCKET: C35204

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., WEILER and LASKIN JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Gregory Lafontaine,

for the appellant

(Respondent)

• and -

JOHN COATES

Karey Katzsch,

for the respondent

(Appellant)

Heard: April 9, 2003

On appeal from a judgment of Justice Ronald A. Minard of the Superior Court of Justice dated May 16, 2000.

WEILER J.A.:

[1] The appellant appeals his convictions for carrying ammunition without lawful excuse in a careless manner contrary to s. 86 (1) of the Criminal Code and for possession of a restricted firearm contrary to s. 95(1) of the Code.

[2] The main issue is whether the trial judge erred in law in holding that the police were justified in stopping the appellant’s vehicle. The appellant contends that the police did not have articulable cause to stop the appellant’s car and that, as a result, he was arbitrarily detained in violation of his s. 9 Charter rights. The search and seizure of the bullets and firearm which followed the detention were therefore, in the appellant’s submission, unreasonable, and the trial judge erred in not excluding the evidence obtained as a result under s. 24 (2) of the Charter.

[3] As stated in R.v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 at 501, articulable cause is “a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is implicated in the activity under investigation.” In ascertaining whether articulable cause exists the court must have regard to the facts and circumstances as a whole, rather than isolating each in turn and must be satisfied that there are bona fide clearly expressed and factually objective reasons justifying not only the detention of the suspect but also the extent and nature of the investigation.

[4] The appellant further contends that, even if the stop was justified, the trial judge erred in not excluding the evidence obtained under section 24 (2) of the Charter because the appellant’s right to be promptly informed of the reason for his arrest under s. 10 (a) and his right to retain and instruct counsel under s. 10 (b) were violated.

Facts

[5] Constable Ritchie and his partner Constable DaSilva were part of a special task force investigating a rash of violent robberies that had taken place in the City of Vaughn, outside of Toronto. During a briefing before the commencement of their shift, the officers were instructed to patrol a specified region of Vaughn that had been the target of these robberies and to be on the lookout for suspicious vehicles or individuals.

[6] At approximately 2 a.m. the officers noticed a vehicle with Quebec licence plates in close proximity to a commercial area where one would not expect tourists to be. The car stopped for a red light at an intersection and Constable Ritchie drove the police car along side. He observed that the appellant, the driver of the vehicle, and the passenger were not speaking to one another and did not appear to “belong together”. He also noted that when he brought his vehicle along side the appellant’s car the passenger appeared to be “very nervous” and was not wearing a seat belt. He attempted to make eye contact with the passenger but the passenger and driver stared out of the front windshield and would not make eye contact with him.

[7] When the light turned green, both cars continued northbound with the police vehicle driving slightly behind and to the right of the appellant’s car. At this time, the appellant’s car made an abrupt lane change very close to an intersection in a manner that caused Constable Ritchie to believe they were attempting to evade contact with the police. The officer testified that in his experience, this type of abrupt lane change often occurs with drivers that have been drinking or people involved in activities they wish to conceal from the police. He changed lanes, followed the appellant’s car and once again both cars stopped beside each other for a red light. Once again, Constable Ritchie attempted to make eye contact, but the passenger continued to stare straight ahead and refused to look over at the police or acknowledge the unusually close proximity of the police vehicle.

[8] When this second traffic light turned green, Constable Ritchie deliberately waited to determine in which direction the appellant’s car was about to proceed. Several seconds passed and the appellant’s car remained stationary at the green light. Finally, the appellant’s car turned westbound. At that point Constable Ritchie activated his emergency lights and performed a traffic stop.

[9] Once the appellant’s car stopped, Constable DaSilva approached the car. Within seconds, Constable Ritchie, who had aimed a spotlight at the appellant’s car, observed a black sock-like object being thrown out of the front passenger window. The object landed between the curb and sidewalk. Constable Ritchie walked up and nudged the object with his foot. Several silver bullets fell out. Officer Ritchie formed the belief that there was a strong possibility there was a firearm in the car. He was concerned for the safety of himself and his partner and decided to act as if he was completely unaware of the existence of the bullets for the moment.

[10] Meanwhile, P.C. DaSilva asked the appellant for his driver’s licence, ownership and insurance. He advised the appellant that he was being stopped because his passenger was not wearing a seatbelt. P.C. DaSilva then asked the appellant where he was going and the appellant replied that he was going to McDonald’s. P.C. DaSilva did not believe the appellant as both vehicles had just passed a McDonald’s on the southwest corner of Highway 7 and Pine Valley Road. He asked the appellant where he was staying and the appellant replied, “Dodge Suites”. P.C. DaSilva asked where Dodge Suites was and the appellant replied, “On Highway 7. I don’t know.”

[11] Standing on the passenger side of the vehicle, P.C. Ritchie shone a flashlight into the interior of the car and noticed power cords of the type often used for radar detectors and a pair of binoculars under the passenger’s front seat. Constable Ritchie asked the passenger and the appellant if there was a radar detector in the car and asked the passenger to step out of the vehicle. Upon opening the passenger door, Constable Ritchie observed a balaclava and an unfolded map of city streets on the back seat.

[12] The passenger was escorted back to the police cruiser and given a quick pat-down search before being placed in the back seat by Constable Ritchie because of his concern for officer safety. Constable Ritchie then returned to the appellant’s car. After informing Officer DaSilva that the men were “up to something” he instructed that the appellant be arrested for having, or being about to commit, an indictable offence.

[13] Following his arrest, the appellant was searched and his waist pouch revealed five .38 calibre bullets, a small tape recorder, papers and a large quantity of cash. The appellant was rearrested but the evidence is not clear whether the basis for the arrest was “possession of bullets” or careless storage of ammunition. Neither the appellant nor his passenger was given the right to counsel at this time.

[14] Following the appellant’s arrest, Constable Ritchie performed a “quick interior search” of the car and located two full-face balaclavas, a radar detector in the glove compartment, a roll of duct tape in the armrest and the open city map. Constable Ritchie also opened the trunk and observed a gym bag, panels from a bulletproof vest, a camouflage jacket and a video camera. The two officers then waited for back-up assistance.

[15] Approximately 30 minutes later the appellant was transported to the police station where he was informed of his right to counsel and his right to remain silent. The appellant requested the opportunity to contact his lawyer at that time but was not permitted to do so for a period of approximately four hours due to security concerns on the part of the Sergeant in charge of the investigation. The Sergeant testified that he was concerned that the appellant and his passenger were involved in a contract killing and that information could be released to others working in concert with the appellant.

[16] The same morning a search warrant was issued for the appellant’s vehicle. The police officer conducting the search found a loaded .38 caliber handgun containing hollow point ammunition under the appellant’s back seat. The butt of the handgun contained an abrasion in the area where a serial number is normally located. In addition to the items observed by Constable Ritchie, the police also found two Hell’s Angels support stickers, a blue knapsack with a red-handled knife, a set of wire cutters, an ear piece for a cell phone or tape recorder, one black hand glove and one bottle of rubbing alcohol.

The Decision of the Trial Judge

[17] At the appellant’s trial, the trial judge accepted the evidence of Constable Ritchie that the fact the passenger in the front seat of the vehicle was not wearing a seat belt was a real factor in the decision to stop the vehicle and “wasn’t a pretext in any way.” Having regard to all the circumstances, he held that the police had articulable cause to stop the appellant’s vehicle. In the event the appellant’s rights under s. 9 had been infringed, the trial judge held that he would nevertheless have admitted the evidence from the search under s. 24(2) of the Charter on the basis that the stop was intended to be very brief and it was only a few seconds before the police had ample reasonable and probable grounds to suspect that both the passenger and the driver were involved in the commission of an indictable offence.

Analysis

i.) Did The Trial Judge Err In Concluding That The Stop Was Justified?

[18] Each case depends on its own facts and the inquiry into the existence of articulable cause must begin with a determination of whether the detention was justified in the totality of circumstances. Thus, in R. v. Wilson (1990), 1990 109 (SCC), 56 C.C.C. (3d) 142 (S.C.C.) at 147, Cory J. on behalf of the Court held that “ …where the police offer grounds for stopping a motorist that are reasonable and that can be clearly expressed (the articulable cause referred to in the American authorities)” the stop was justified, the detention was not arbitrary and the stop did not violate s. 9 of the Charter.

[19] In this case Constable Ritchie offered grounds for stopping the appellant’s vehicle that were clearly expressed. The officer identified two specific factors that justified a stop under s. 216(1) of the Highway Traffic Act, namely the seatbelt infraction and the abrupt lane change, which Const. Ritchie associated with the possibility of an impaired driver. The trial judge found that the police did not use these factors as a pretext for the stop. In Brown v. Durham Regional Police Force, (1998), 1984 2145 (ON CA), 13 C.C.C. (3d) 1at 13-14 (Ont. C.A.), this Court held that a “ trial judge’s finding that highway safety concerns were one of the purposes behind the stop is a finding of fact.”

[20] A trial judge’s findings of fact and inferences from facts can only be overturned where the judge committed a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No. 31. The decision in Housen, supra, stressed very strongly the need for great caution and deference on the part of appellate courts when they review the assessment of facts by a trial court. The rule in Housen, supra, does not, however, preclude an appellate court from identifying errors in the findings of fact where those errors are sufficiently palpable and important and have a sufficiently decisive effect that they would justify intervention and review on appeal: Prudhomme v. Prudhomme , [2002] S.C.C. No. 85.

[21] The appellant contends that this Court’s intervention is justified because the trial judge’s finding that highway safety concerns were one of the purposes behind the stop is unreasonable. On a proper application of the unreasonableness test, the question is not whether there was a reasonable basis in the evidence to make the finding of fact. Rather, an appellate court must ask itself whether, on the evidence as a whole, a reasonable trier of fact could have made the impugned finding notwithstanding the competing conclusion. Absent a determination that no reasonable trier of fact, properly instructed and acting judicially, could have made the same findings the verdict should not be disturbed on appeal: R. v. Yebes (1987), 1987 17 (SCC), 36 C.C.C. (3d) 417 (S.C.C.) at 430; R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.); R. v. Tat (1997), 1997 2234 (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.) at 515.

[22] In support of his submission that the stop was unreasonable, counsel for the appellant directed us to a passage in the evidence in which Constable Ritchie agreed that, given his task that night, he would not have stopped the vehicle on the basis of the passenger’s seat belt violation alone.

[23] There is, however, evidence that highway safety was one of the purposes for the stop. In response to the suggestion that the seat belt violation was not the reason for stopping the car Constable Ritchie testified:

If I came up alongside of a vehicle, whether it be daytime or the nighttime, the passenger or the driver was not wearing their seat belt, and I made an effort, dependent on what type of effort, to get their attention, which they chose to ignore, and then were defiant enough not to wear-put their seat belt on after, I would, in all likelihood, stop that car and ask why they don’t have their seat belt on, and why they didn’t put it on when they saw the police.

[24] The appellant also argues that once the appellant’s car was stopped Constable Ritchie did nothing to investigate the seat belt violation. However, Constable Ritche’s partner, Constable DaSilva, informed the appellant that the reason for the stop was that his passenger’s seat belt was not done up.

[25] Considered in the content of the evidence at trial as a whole, the trial judge’s finding that the passenger’s failure to wear a seat belt was a real factor in the police officer’s decision to stop the vehicle is supported by the evidence and is one that a reasonable trier of fact could have made.

[26] In the context of the investigation of the recent robberies, the time of night, the area of the stop, and the other observations demonstrating that the appellant and his passenger were acting suspiciously and evasively, the police had articulable cause to detain the appellant for brief investigative purposes. Constable Ritchie had an objective factual basis that gave rise to his suspicion and this basis rose above the level of a mere hunch. The existence of other lawful police purposes such as investigation of other criminal activity and intelligence gathering, in addition to highway safety concerns, does not taint the lawfulness of the stop: See Brown v. Durham Regional Police Force (1998), 1998 7198 (ON CA), 131 C.C.C. (3d) 1 (Ont.C.A.).

[27] The trial judge did not err in holding that the initial detention of the appellant was justified and did not violate his rights under s. 9 of the Charter.

ii.) Did the trial judge err in admitting the evidence of the search under s. 24 (2)?

[28] I must now consider the effect of the violation of the appellant’s rights under s. 10 on the admissibility of the evidence under s. 24 (2). At trial, the Crown conceded that the appellant had not been promptly given his right to counsel and that the delay in allowing him to exercise his right to counsel was a breach of his rights under s. 10 (b) of the Charter.

[29] The appellant submits that his s. 10 (a) right to be informed of the offence with which he was charged was also violated. He was initially arrested for an offence that is not known to law, and he was not advised of the reason for his arrest until approximately 6 a.m. more than four hours after his arrest.

[30] After the .38 calibre bullets were found in the appellant’s pouch, the appellant was rearrested at the scene. While the exact basis for the appellant’s rearrest is unclear, the appellant knew that his arrest related to the .38 calibre bullets. For the purposes of this appeal I will, however, assume that the appellant’s rights under s. 10(a) were also violated.

[31] The test under s. 24(2) is whether the evidence “could” bring the administration of justice into disrepute in the eyes of a reasonable person, dispassionate and fully apprised of the circumstances of the case: R. v. Collins (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.). Where admitting the evidence affects the fairness of the trial, then the admission of the evidence would tend to bring the administration of justice into disrepute and, subject to consideration of other factors, it should generally be excluded: R. v. Stillman (1997), 1997 384 (SCC), 113 C.C.C. (3d) 321 (S.C.C.).

[32] The evidence of the firearm was real evidence not causally connected to the breach of the appellant’s right to counsel. No statements were taken from the appellant prior to his being afforded access to a telephone to contact his lawyer. The appellant appropriately concedes that the evidence obtained as a result of the breach of his rights was not conscriptive and did not affect trial fairness. The trial judge found that the police had acted in good faith. That finding is entitled to deference. In exercising his discretion not to exclude the evidence of the bullets and the weapon pursuant to s. 24(2) the trial judge committed no error in principle.

[33] I would, therefore, dismiss the appeal.

RELEASED: June 12, 2003 (“RRM”)

“Karen M. Wieler J.A.”

“I agree R. Roy McMurtry C.J.O.”

“I agree John Laskin J.A.”