COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nartey, 2013 ONCA 215

DATE: 20130408

DOCKET: C55721

Sharpe, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jesse Nartey

Respondent

Jennifer Mannen, for the appellant

Timothy E. Breen, for the respondent

Heard: March 21, 2013

On appeal from the acquittal entered on June 12, 2012 by Justice Donald A. Ebbs of the Ontario Court of Justice.

ENDORSEMENT

[1] This Crown appeal arises out of the trial judge’s ruling pursuant to s. 24(2) of the Charter, excluding the evidence obtained on a warrantless search of a driver and his vehicle following a Highway Traffic Act stop.

[2] The Crown argues that: (1) the trial judge erred in law by making a finding of fact for which there was no evidence and that tainted his entire Charter analysis: and (2) the nature and extent of the trial judge’s questioning of the police witnesses gave rise to the appearance that he had pre-judged their evidence and demonstrated a reasonable apprehension of bias.

[3] We are not persuaded by either argument and accordingly dismiss this appeal.

Background

[4] Some background is necessary.

[5] Only police officers testified at the voir dire. Their testimony was, in substance, as follows.

[6] Shortly after midnight, two police officers observed a vehicle exit the parking lot of a notorious strip bar and then fail to come to a complete stop before making a turn at a red light. On the basis of this Highway Traffic Act violation, the officers pulled the vehicle over some distance after the red light and asked the driver for his licence, registration and insurance. The officers returned to their cruiser and the senior officer prepared to write up a Provincial Offence Act notice. He then received information, via the computer in the cruiser, that the driver had been convicted of possession for the purpose of trafficking, was subject to two firearm prohibitions, and had a street gang association. The officers observed motion in the driver’s car. The senior officer described the driver as reaching into the back seat, grabbing a small black duffle bag, placing it in the front passenger seat and then appearing to rifle through the bag. When the driver tossed the bag into the back seat, it looked less full and less heavy. This movement, combined with the fact that the driver was a patron of the strip bar and the driver’s record, caused the senior officer to have concern for their safety.

[7] On the senior officer’s direction, both officers immediately got out of their cruiser and approached the driver’s vehicle. The senior officer asked the driver to step out of his vehicle and undergo a pat-down search to make sure he was not in possession of a weapon. The driver was cooperative. The pat-down search did not disclose a weapon but the senior officer felt what he believed to be a large wad of cash in the driver’s pocket. He did not search the pocket.

[8] In order to ensure officer safety, and despite feeling that he was “in somewhat uncharted territory” in doing so, the senior officer then decided to search the vehicle. He noticed Bounce dryer sheets sticking out of the vents and four air fresheners hanging in the vehicle, and smelled fresh, unburnt marijuana. On the basis of that evidence, and the wad of cash he believed he had felt when he conducted the pat down search, he proceeded to arrest the driver for violation of s. 4(1) of the Controlled Drugs and Substance Act. The senior officer then continued the search of the driver’s vehicle and found what looked to him to be about one- half pound of marijuana and two loaded guns in the locked glove compartment.

[9] Two bags of crack cocaine were later discovered on the driver’s person.

[10] The black bag referred to in the senior officer’s testimony was not in the photos of the driver’s vehicle or its contents taken after his arrest, and was not an exhibit at trial.

The trial judge’s ruling

[11] The trial judge concluded that once the police officers obtained information via the computer with respect to the driver, the Highway Traffic Act stop turned into an unjustified investigative detention. For several reasons, including that he did not accept the senior officer’s testimony regarding the black bag, the trial judge rejected the senior officer’s evidence that the pat down search and subsequent search of the vehicle were motivated by concerns for the officers’ safety. The trial judge found that the officers were on a “fishing trip”.

[12] As a result, the pat down search and the subsequent search of the vehicle were unlawful.

[13] In his s. 24(2) analysis, the trial judge characterized the senior officer as having attempted to tailor his evidence to fit a pattern which is allowed by the courts. On the basis of this misconduct, he concluded that the drugs and weapons found as a result of the searches had to be excluded as evidence in order to avoid bringing the administration of justice into disrepute. In the course of his s. 24(2) analysis, the trial judge also commented that he was not persuaded that the driver had in fact made a rolling stop.

Finding of fact for which there was no evidence

[14] The onus was on the driver to establish that his detention was unlawful.

[15] The Crown argues that the trial judge made a finding that the driver had not made a rolling stop, when the only evidence before him was that of the police officers that the driver had done so, and that this legal error tainted the trial judge’s subsequent Charter analysis.

[16] We do not agree.

[17] The presence or absence of a rolling stop did not underpin the trial judge’s conclusion that there was an improper investigative detention. As indicated above, he concluded that the Highway Traffic Act stop, even if valid, became an improper investigative detention once the officers received the information with respect to the driver on their computer. That conclusion is not challenged on this appeal.

[18] A review of the record together with the trial judge’s reasons makes it clear that the focus on the voir dire was on whether the warrantless searches of the driver and his vehicle following the Highway Traffic Act stop were justified on the ground of officer safety. The onus was on the Crown to justify these warrantless searches, and the trial judge concluded that the Crown had not met that onus. The credibility findings made by the trial judge in assessing the officers’ evidence in relation to the grounds for the searches led him to doubt all of their evidence, including their evidence that the driver had made a rolling stop at a red light. The trial judge stopped short of making a finding of fact that the rolling stop had not occurred. We see no error of law within s. 676(1)(a) of the Criminal Code upon which the Crown’s appeal against the respondent’s acquittal can succeed.

Reasonable apprehension of bias

[19] While the extent of the questioning engaged in by the trial judge was unwise, we are not persuaded that it would cause an informed person, viewing the matter realistically and practically, and having thought the matter through, to conclude that the trial judge, consciously or unconsciously, would not decide the matter fairly: see Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at pp. 394-95.

[20] Indeed, we note that the Crown did not object to the questioning during the course of the voir dire. It waited until it received the ruling which it now appeals, suggesting that as the voir dire unfolded it was unclear to the Crown itself – very much an informed person – that the extent of the questioning displayed bias or a reasonable apprehension of bias.

Disposition

[21] In the result, we dismiss this appeal.

“Robert J. Sharpe J.A.”

“David Watt J.A.”

“Alexandra Hoy J.A.”