Her Majesty the Queen v. Byfield [Indexed as: R. v. Byfield]

74 O.R. (3d) 206

[2005] O.J. No. 228

Docket: C39794

Court of Appeal for Ontario,

Weiler, Rosenberg JJ.A. and Pardu J. (ad hoc)

January 26, 2005

Charter of Rights and Freedoms -- Remedies -- Search and seizure -- Police having articulable cause to stop accused -- During justified detention for investigation police officer touched accused in groin area where drugs later found -- Touching not related to police officer safety but rather to search for contraband -- Trial judge finding that accused's s. 8 rights violated but that drugs should be admitted as infringement minimal, police acting in good faith and no close temporal link between breach and evidence being found -- Trial judge erring in admitting evidence -- Infringement of accused's rights very serious and search intrusive -- Very close temporal link between breach and locating evidence -- Police cannot rely on good faith if error regarding scope of authority unreasonable or based on ignorance -- Seriousness of offence to be balanced against seriousness of breach -- Admission of drugs would bring administration of justice into disrepute -- Appeal from conviction allowed and acquittal entered -- Canadian Charter of Rights and Freedoms, s. 8.

Two police officers were on patrol in an area which had been the subject of many complaints from the public about prostitution, drug dealing and theft. The officers' attention was drawn to a woman who was hitchhiking and apparently trying to catch the eye of male drivers. The woman got into a van and then returned to the area ten minutes later and made a telephone call. Shortly after that, she was picked up by the accused. The officers suspected that the woman was a prostitute and that she had arranged to buy drugs after turning a trick. They followed the accused's car and learned that the registered driver was before the courts on criminal charges and that the car was not registered anywhere near the area. They stopped the car and asked the accused to produce his licence, ownership and insurance. The accused appeared to be nervous and fidgety. One of the officers touched the accused in the groin area and discovered crack cocaine and a large quantity of cash. At trial, the Crown conceded that the accused's rights under s. 8 of the Canadian Charter of Rights and Freedoms were violated when he was searched before being arrested. The trial judge found that the admission of the evidence of the drugs and cash would not bring the administration of justice into disrepute. The accused was convicted. He appealed. [page207]

Held, the appeal should be allowed.

While this was a close case, the trial judge's conclusion that the officers had articulable cause to detain the accused for investigation was reasonably supported by the evidence. On the trial judge's findings, the police did not stop the accused based merely upon a hunch or intuition based on experience, nor merely because he was in a high-crime area. The officers were able to articulate the basis for their suspicion and provide a demonstrable rationale that the accused was engaged in a particular crime, namely drug trafficking.

As there was no suggestion that the initial search near the accused's groin area was motivated by officer safety, the search violated the accused's rights under s. 8 of the Charter.

The trial judge erred in characterizing the Charter violation as minimal. While it was unnecessary to deal with the accused's submissions that the initial stop was motivated by racial profiling, these kinds of investigative stops are the very types of police conduct that lend themselves to allegations of racial profiling. The courts must take seriously the violation of a suspect's rights in the course of an investigative stop. The trial judge also erred in finding that the securing of the evidence and the Charter violation were too remote. There was a close temporal and causal connection between the violation of the accused's s. 8 rights and the finding of the evidence. Finally, the trial judge erred in finding that the officers acted in good faith. Good faith cannot be claimed if a Charter violation is committed on the basis of a police officer's unreasonable error or ignorance as to the scope of his or her authority. The admission of the evidence would bring the administration of justice into disrepute.

APPEAL from a conviction for possession of cocaine for the purpose of trafficking and possession of the proceeds of crime.

R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, 123 Man. R. (2d) 208, 155 D.L.R. (4th) 19, 221 N.R. 281, 159 W.A.C. 208, [1999] 4 W.W.R. 303, 48 C.R.R. (2d) 189, 121 C.C.C. (3d) 97, 13 C.R. (5th) 1, consd Brown v. Durham Regional Police Force (1998), 1998 7198 (ON CA), 43 O.R. (3d) 223, [1998] O.J. No. 5274, 167 D.L.R. (4th) 672, 59 C.R.R. (2d) 5, 131 C.C.C. (3d) 1, 39 M.V.R. (3d) 133, 21 C.R. (5th) 1 (C.A.) [Leave to appeal to S.C.C. allowed (1999), 252 N.R. 198n], distd R. v. Mann, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 187 Man. R. (2d) 1, 241 D.L.R. (4th) 214, 330 W.A.C. 1, [2004] 11 W.W.R. 601, 122 C.R.R. (2d) 189, 185 C.C.C. (3d) 308, 2004 SCC 52, 21 C.R. (6th) 1, apld Other cases referred to R. v. Burke, 1997 10867 (NL CA), [1997] N.J. No. 187, 153 Nfld. & P.E.I.R. 91, 475 A.P.R. 91, 118 C.C.C. (3d) 59 (C.A.); R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, 13 B.C.L.R. (2d) 1, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, 28 C.R.R. 122, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193 (sub nom. Collins v. R.); R. v. Cox, 1999 13119 (NB CA), [1999] N.B.J. No. 86, 132 C.C.C. (3d) 256, 210 N.B.R. (2d) 90, 170 D.L.R. (4th) 101, 536 A.P.R. 90, 132 C.C.C. (3d) 256 (C.A.); R. v. Golden, [2001] 3 S.C.R. 679, [2001] S.C.J. No. 81, 207 D.L.R. (4th) 18, 279 N.R. 1, 89 C.R.R. (2d) 271, 159 C.C.C. (3d) 449, 47 C.R. (5th) 1, 2001 SCC 83; R. v. Goldhart, 1996 214 (SCC), [1996] 2 S.C.R. 463, [1996] S.C.J. No. 76, 28 O.R. (3d) 480n, 136 D.L.R. (4th) 502, 198 N.R. 321, 37 C.R.R. (2d) 1, 107 C.C.C. (3d) 481, 48 C.R. (4th) 297; R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257, [1990] S.C.J. No. 53, 73 O.R. (2d) 736n, 40 O.A.C. 1, 108 N.R. 171, 48 C.R.R. 112, 56 C.C.C. (3d) 22, 77 C.R. (3d) 110, 21 M.V.R. (2d) 165; R. v. Simpson (1993), 1993 3379 (ON CA), 12 O.R. (3d) 182, [1993] O.J. No. 303, 14 C.R.R. (2d) 338, 79 C.C.C. (3d) 482, 20 C.R. (4th) 1, 43 M.V.R. (2d) 1 (C.A.) [page208] Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2) Highway Traffic Act, R.S.O. 1990, c. H.8, s. 216(1) Authorities referred to Quigley, T."Mann, It's a Disappointing Decision" (2004), 21 C.R. (6th) 41

David E. Harris, for appellant. James W. Leising, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- The appellant appeals from his conviction by Dyson J. on charges of possession of cocaine for the purpose of trafficking and possession of proceeds of crime. Police officers found the cocaine and the proceeds of crime after stopping the appellant's motor vehicle. The appellant raises a number of issues, including the validity of the stop, which he argues was motivated by racial profiling and violated his right to protection against arbitrary detention as guaranteed by s. 9 of the Canadian Charter of Rights and Freedoms. I find it unnecessary to deal with those arguments as I am satisfied that the trial judge erred in failing to exclude the evidence in view of an admitted breach of the appellant's right to protection against unreasonable search and seizure under s. 8 of the Charter.

[2] Accordingly, I would allow the appeal, set aside the convictions and enter acquittals.

The Facts

[3] In view of my conclusion respecting the exclusion of evidence for the s. 8 breach, I intend to only provide a brief summary of the facts. At about 6:30 p.m., May 29, 2001, two plainclothes officers with the Toronto Police Service were on patrol in the area of Kingston Road. The police receive many complaints from the public about prostitution, drug dealing and theft in this area. The officers were with the Youth Services Street Crime Unit. They were not detailed to deal with street prostitution. That was a matter for the Community Response Unit. The officers' attention was drawn to a white woman whom they believed was working as a prostitute. The officers had never seen this woman before. She was hitchhiking and seemed to be attempting to catch the eye of male drivers. The officers saw the [page209] woman get into a van and then return to the area about ten minutes later. The police officers did not follow the van because they decided to investigate two men in connection with an incident at a nearby bar.

[4] After she returned to the area, the woman went into a nearby variety store. One of the officers saw the woman near the telephone in the store. About five minutes later, she left the store and walked across the street where she was picked up by a brown Honda Accord. One of the officers had worked on the prostitution squad in the past, and said that it is common for prostitutes who have "turned a trick" to use the money to purchase drugs. Therefore, the officers followed the Honda and learned that the registered driver was before the courts on criminal charges and that the car was not registered anywhere near the area. The Honda went behind another variety store and a short time later the officers saw the woman walking away. The officers decided to stop the Honda. They noticed that the driver was a black male. Having seen the suspected prostitute near a telephone, one of the officers believed it was likely that she had called a drug dealer. The officers denied that they followed the car because of the driver's colour.

[5] The officers testified that the Honda was speeding. The Honda stopped abruptly and the appellant left the vehicle and approached the officers. The officers advised the appellant that he was stopped for speeding and demanded that he produce his licence, ownership and insurance. The appellant appeared to be nervous and fidgety.

[6] There were significant discrepancies between the two officers' accounts of what happened next. One officer testified that the appellant produced his ownership and insurance. The officer noticed a bulge in the appellant's front pocket. He touched the outside of the pocket with his hand and felt around towards the appellant's crotch area. His actual evidence as to the nature of that search was this: "When I touched him the first time I could feel his pocket and I felt with my fingers over far enough that there was something else down the front of his pants." The officer asked the appellant what was in his pocket and the appellant pulled out a bundle of money. He told the appellant he could put the money back and then asked him what was in the crotch area. At this point, the appellant fled and was tackled by the other officer. As he fled, the appellant threw a plastic bag, which the first officer picked up.

[7] The second officer (the arresting officer) gave a different version of events. He testified that after a second request for documents and being advised that he would be arrested if he did not [page210] comply, the appellant fled. The officer tackled the appellant and placed him under arrest for failing to identify himself under the Highway Traffic Act, R.S.O. 1990, c. H.8. Meanwhile, the first officer came up and showed him a baggie containing a large quantity of crack cocaine that the appellant had thrown to the ground as he attempted to flee the scene.

[8] The arresting officer testified that he then grabbed the appellant's pants in the front and looked down his pants. He found another quantity of crack cocaine and a large amount of cash stuffed down the front of the appellant's pants.

[9] It was the position of the defence that the stop of the appellant's vehicle was motivated by racial profiling and was a violation of s. 9 of the Charter.

The Trial Judge's Reasons for Judgment

[10] The appellant applied to exclude the evidence found by the police because of breach of his rights under the Canadian Charter of Rights and Freedoms. The trial judge found that the first officer touched the appellant's crotch area before the arrest. He noted that the Crown conceded that this was a violation of the appellant's right to protection against unreasonable search and seizure contrary to s. 8 of the Charter.

[11] The trial judge concluded that the appellant had not been arbitrarily detained. He found against the appellant on the issue of racial profiling. He held that the officers drew reasonable inferences from objective facts that the woman was a prostitute, that she had probably telephoned for drugs and that a drug transaction had taken place in the Honda. Those facts "gave reasonable cause to conclude that the [appellant] was involved in criminal activity which entitled them to lawfully detain the [appellant] for further investigation". The trial judge went on to hold that the appellant's attempt to flee and throw away the drugs gave the officers reasonable grounds to arrest him for possession of cocaine.

[12] The trial judge considered the decision of the Supreme Court of Canada in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, [2001] S.C.J. No. 81, 159 C.C.C. (3d) 449 and concluded that the search as described by the arresting officer was not a strip search, was therefore a lawful search incidental to the arrest, and in any event was minimally intrusive. Accordingly, there was no violation of s. 8 after the arrest.

[13] The trial judge considered whether the drugs and money should be excluded given the Crown's concession of the violation of the appellant's s. 8 rights by the initial touching by the first officer. He found that admission of the evidence would not affect [page211] the fairness of the trial, that the seriousness of the breach was "minimal in the extreme", that the officers acted in good faith, and that to exclude the evidence would bring the administration of justice into disrepute. The trial judge also relied upon R. v. Goldhart, 1996 214 (SCC), [1996] 2 S.C.R. 463, [1996] S.C.J. No. 76, 107 C.C.C. (3d) 481 to find that the securing of the evidence was too remote from the breach of the appellant's rights to warrant exclusion of the evidence. Finally, he relied upon R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, 121 C.C.C. (3d) 97 where the court admitted evidence necessary to prove serious crimes where the officers were acting in good faith and the breach was minor.

Analysis

Introduction: The initial stop

[14] The appellant submits that the trial judge failed to provide reasons that adequately addressed the issues raised by the evidence. The appellant focuses in particular on the trial judge's treatment of the racial profiling issue. As indicated, I do not find it necessary to deal with that issue since, in my view, the trial judge erred in his analysis of the application of s. 24(2) of the Charter to the admitted s. 8 violation. I intend to address the s. 9 issue only to the extent that it provides a backdrop to the later s. 8 violation.

[15] Under the Highway Traffic Act, police officers are entitled to stop motorists for highway regulation and safety purposes. See Brown v. Durham Regional Police Force (1998), 1998 7198 (ON CA), 43 O.R. (3d) 223, [1998] O.J. No. 5274, 131 C.C.C. (3d) 1 (C.A.), at para. 21, and R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257, [1990] S.C.J. No. 53, at p. 1287 S.C.R. Such a stop does not become illegal because the officers may have another legitimate purpose for investigating the driver as in Brown v. Durham Regional Police Force, at p. 237 O.R. What distinguishes this case from Brown v. Durham Regional Police Force is that the trial judge did not find the purpose of the stop was related to highway regulation and safety purposes (notwithstanding the officers' suggestion that the car had been speeding). He found that the stop was justified because the officers reasonably suspected, based on their observations of the suspected prostitute, that the appellant was involved in drug trafficking from his vehicle.

[16] Speaking for this court in R. v. Simpson (1993), 1993 3379 (ON CA), 12 O.R. (3d) 182, [1993] O.J. No. 303, 79 C.C.C. (3d) 482, at p. 200 O.R., p. 500 C.C.C., Doherty J.A. held that the police do have the power to stop a vehicle and detain the driver to determine whether that person is involved in criminal activity being investigated by the [page212] police, provided that the detaining officer has some "articulable cause" for the detention. This power to stop a vehicle flows from the combined effects of s. 216(1) of the Highway Traffic Act and some other statutory or common law power. Section 216(1) provides that a police officer"in the lawful execution of his or her duties and responsibilities", may require the driver to stop.

[17] At p. 193 O.R., p. 493 C.C.C., Doherty J.A. described the relationship between s. 216(1) and the common law power to detain for articulable cause: "[The officer] had the authority to stop the vehicle and detain the occupants only if at the time he did so he could lawfully have stopped or detained one or both of the occupants had he encountered them on the street. If he had no such authority, he was not acting in the 'lawful execution' of his duty as required by s. 216."

[18] In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 185 C.C.C. (3d) 308, the Supreme Court of Canada confirmed the common law power to detain persons encountered on the street in circumstances falling short of reasonable grounds for arrest [See Note 1 at the end of the document]. The court rejected the use of the description "articulable cause", but confirmed the legal validity of a limited power to detain for investigation where "there is a clear nexus between the individual to be detained and a recent or on-going criminal offence" (para. 34).

[19] While the trial judge did not frame his findings in terms of articulable cause, reasonable cause to detain, or reasonable cause to suspect, he spoke of "reasonable inferences and reasonable deductions from the objective discernible facts". This, in my view, was a finding that the officers had reasonable grounds to detain within the meaning of Mann. In my view, that finding is reasonably supported by the evidence.

[20] On the trial judge's findings, the police did not stop the appellant based merely upon a hunch or intuition based on experience, nor merely because he was in a high-crime area [See Note 2 at the end of the document]. The officers were able to articulate the basis for their suspicion and provide a demonstrable rationale that the driver of the vehicle had engaged in a particular crime, namely drug trafficking. See R. v. Burke, 1997 10867 (NL CA), [1997] N.J. No. 187, 118 C.C.C. (3d) 59 (C.A.), at para. 29. The officers offered objective grounds for their suspicions that cannot be dismissed simply as neutral facts. Their conclusion that the [page213] woman was a prostitute is consistent with the facts. The subsequent interpretation of her behaviour as indicating that the driver of the Honda was likely a drug dealer is somewhat more problematic. The behaviour was, however, unusual and the officers' interpretation seems neither unreasonable nor based solely on hunches, speculation and guesses. Compare R. v. Cox, 1999 13119 (NB CA), [1999] N.B.J. No. 86, 132 C.C.C. (3d) 256 (C.A.). That said, I would characterize this as a close case since the reasonableness of the officers' suspicion rests so heavily on their experience and the basis of that experience was not well demonstrated at trial.

[21] Finally, even where the detention is lawful and not undermined by improper purposes, if the police exercise the power unreasonably, that action can violate the detainee's rights. Indeed that is what occurred here. The Crown properly conceded that when the first officer touched the appellant in the groin area for reasons unrelated to officer safety but to investigate whether the appellant was carrying contraband, he violated the appellant's rights. The Supreme Court of Canada's decision in Mann, decided after the appellant's trial, confirms the correctness of the Crown's concession. The court there held at para. 40 that the "general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk." There is no suggestion in this case that the initial search near the appellant's groin area was motivated by officer safety.

Exclusion of the evidence

[22] The trial judge found that the evidence should not be excluded under s. 24(2) despite the violation of the appellant's s. 8 rights in the initial search prior to arrest. The trial judge held that this unreasonable search would not affect the fairness of the trial and characterized this violation as "minimal in the extreme". He held that the officers were acting in good faith and that excluding the evidence would bring the administration of justice into disrepute.

[23] The trial judge's decision on the admission of evidence under s. 24(2) of the Charter is entitled to deference. However, he made errors of law in his analysis that, in my view, require reversal of his decision. The trial judge also did not have the benefit of the Supreme Court's decision in R. v. Mann. In circumstances, not unlike this case, a majority of the court found that evidence obtained as a result of an unlawful search during a detention short of arrest should be excluded. [page214]

[24] I agree with the trial judge that admission of the evidence would not affect the fairness of the trial. The admissibility of the evidence must be determined having regard to the other groups of factors from R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, 33 C.C.C (3d) 1, namely the seriousness of the breach and the effect of the exclusion.

[25] With respect to the seriousness of the breach, Iacobucci J. said the following at para. 56 of Mann:

While a frisk search is a minimally intrusive search, as noted by this Court in Cloutier, supra, at p. 185, the search of the appellant's inner pocket must be weighed against the absence of any reasonable basis for justification. Individuals have a reasonable expectation of privacy in their pockets. The search here went beyond what was required to mitigate concerns about officer safety and reflects a serious breach of the appellant's protection against unreasonable search and seizure.

(Emphasis added)

[26] The touching towards the appellant's groin area by the first officer was similar to the touching that occurred in Mann. In light of that case, the violation here could not be properly characterized as minor or "minimal in the extreme". I would also make this observation. In R. v. Mann at para. 18, Iacobucci J. considered the justification for undertaking modification of the common law to permit the police to conduct investigative detentions short of arrest. He noted that the "unregulated use of investigative detentions in policing, their uncertain legal status, and the potential for abuse inherent in such low visibility exercises of discretionary power are all pressing reasons why the Court must exercise its custodial role". In this case, I have not found it necessary to deal with the appellant's submissions that the initial stop was motivated by racial profiling. These kinds of investigative stops, however, are the very types of police conduct that lend themselves to allegations of racial profiling. An important lesson from R. v. Mann is that the courts must take seriously the violation of a suspect's rights in the course of an investigative stop.

[27] The trial judge also erred in holding that the securing of the evidence and the breach were too remote. There was a close temporal connection between the violation of the appellant's rights under s. 8 of the Charter and the finding of the evidence. As was said in R. v. Goldhart, at para. 40"the temporal connection may be so strong that the Charter breach is an integral part of a single transaction". That was the case here; it was all one transaction that concluded in a matter of minutes. There was also a close causal connection. The evidence was found because of the stop, detention and questioning of the appellant. There were [page215] no intervening events that can be said to have broken the causal connection. See R. v. Goldhart, at para. 45.

[28] Finally, the trial judge erroneously relied upon the decision in Caslake. Caslake concerned the warrantless search of a vehicle some six hours after the accused's lawful arrest. The search took place at a police pound in accordance with a police policy to inventory the contents of seized vehicles. In that case, the officer acted in good faith reliance on a police policy. The search was unobtrusive and of a place where a person has a diminished expectation of privacy. This case is quite different. This was an intrusive search of the person in circumstances without legal justification. While the officers had reasonable grounds to detain the appellant, they did not have reasonable grounds to arrest or search at the time of the initial search by the first officer and the search was not justified for the purpose of officer protection.

[29] The trial judge also held that the search "was done in good faith". Iacobucci J. dealt with this issue in R. v. Mann, at para. 55, in terms that could equally apply in this case:

The Court of Appeal admitted the evidence based on its conclusions that the officer found the evidence in good faith. However, this Court has stated that "good faith cannot be claimed if a Charter violation is committed on the basis of a police officer's unreasonable error or ignorance as to the scope of his or her authority" ...

[30] The final consideration under the Collins test is whether the exclusion of the evidence would adversely affect the administration of justice. As indicated, the trial judge found that the administration of justice would be held in disrepute if the evidence were not admitted. In my view, that holding was affected by the trial judge's erroneous findings of good faith, the nature of the breach, the remoteness of the breach.

[31] Admittedly these were serious offences and the evidence is necessary to sustain the charges. The charges are more serious than the charge involved in Mann, which was possession of marihuana for the purpose of trafficking. Cocaine is a more dangerous substance than marihuana. Again, however, the reasons of Iacobucci J. in R. v. Mann at para. 57 are instructive:

Just as there is no automatic exclusionary rule, there can be no automatic inclusion of the evidence either. The focus of the inquiry under this head of analysis is to balance the interests of truth with the integrity of the justice system. The nature of the fundamental rights at issue, and the lack of a reasonable foundation for the search suggest that the inclusion of the evidence would adversely affect the administration of justice.

[32] In my view, balancing the seriousness of the breach against the affect of exclusion, the evidence should be excluded. [page216]

Disposition

[33] Accordingly, I would allow the appeal, set aside the convictions and enter acquittals.

Appeal allowed.

Notes

Note 1: It is unclear whether Mann creates a stand-alone power to stop a motor vehicle for investigation where there are reasonable grounds to suspect that the individual is connected to a particular crime. See, T. Quigley"Mann, It's a Disappointing Decision" (2004), 21 C.R. (6th) 41, at p. 43.

Note 2: R. v. Mann, at para. 47.