Court File and Parties
Court File No.: Not provided
Date: 2010-05-01
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Tristan Wade Smith
Before: Justice Sheila Ray
Heard on: December 15, 2011, and January 16, 2012
Reasons for Judgment released on: March 5, 2012
Counsel:
Thomas O'Leary, Agent for the Attorney General of Canada
Katheryn Wells, Counsel for the Defendant
RAY, J.:
INTRODUCTION
[1] Tristan Wade Smith was charged on May 1, 2010, with three criminal offences. First, it is alleged that he unlawfully possessed a controlled substance, cannabis marijuana, in an amount not exceeding 30 grams, contrary to s. 4(5) of the Controlled Drugs and Substances Act. Second, it is alleged that he wilfully obstructed Police Constable Sljivo, while he was engaged in the execution of his duty by identifying himself as Germaine Myers, when he was in fact Tristan Wade Smith, while being investigated for a criminal offence contrary to the Criminal Code R.S.C. 1985, c. C-46. Third, it is alleged that he breached his undertaking to an officer in charge by failing to comply without lawful excuse with a condition not to enter the area bounded by Queen Street West to the North, Front Street West to the South, Spadina Avenue to the West, and University to the East, contrary to the Criminal Code.
[2] The issues in this case are whether or not the defendant's rights pursuant to ss. 8, 9, 10(a), and 10(b) of the Canadian Charter of Rights and Freedoms have been violated, and if so, whether all evidence obtained as a result should be excluded pursuant to s. 24(2) of the Charter. Should the Court dismiss the defendant's Charter application, it has been conceded that the Crown has proved all the elements of the offences charged.
THE EVIDENCE
[3] Only the two investigating officers testified in this matter, Weslie Corbie and Sasha Sljivo. Officer Corbie testified that he was on duty patrolling Toronto's bar and night club district, a high crime area commonly referred to as the entertainment district, in the early morning hours of May 1st. At about 3:30 a.m., he and his partner were in their marked police car around the area of 380 Richmond Street, when he noticed a male person standing and looking at them. Officer Corbie testified that he noticed that the male person quickly turned around when he looked at them and went into the inside portion of the parking lot. This behavior caused some suspicion, so the officers drove their police vehicle into the area of the parking lot towards where this individual headed. Officer Sljivo testified that it was the action coupled with the body language that caused suspicion. Once in the parking lot their attention was drawn towards three men standing in front of a black Mercedes Benz vehicle. Officer Corbie spoke to them and asked for their names, which were provided. Officer Corbie found them to be cooperative but nervous. While Officer Sljivo was checking their names, Officer Corbie spoke with the older of the three men, who told him he was the driver of the vehicle. He observed the condition of the driver's eyes to be red and puffy. Due to his nervousness and the condition of his eyes, Officer Corbie believed the driver to be under the influence of some sort of drug. He could not smell alcohol, so he believed it to be some sort of stimulant rather than alcohol.
[4] Once Officer Corbie was advised by this older gentleman, whom he believed to be under the influence of a stimulant drug, that he was the driver of the black Mercedes, Officer Corbie decided to take a quick look through the window inside the car to see if there was any physical evidence of drugs. He walked closer to the vehicle and saw two men sitting in the back seat. He walked towards the rear passenger side of the car, and as he approached, he could smell a slight odour of marijuana. He tapped the rear passenger side of the vehicle, and the man sitting there rolled down the window. The smell of marijuana became stronger as the window was rolled down. Because the smell became stronger, when the window was rolled down, Officer Corbie believed that the smell came from inside the car. The person who rolled down the window was calm and cooperative, provided his name, and advised that he had robbery charges pending. Satisfied that he was honest, Officer Corbie decided to speak to the second male passenger in the back seat.
[5] Officer Corbie testified that the second male passenger spoke very softly, slouched down, and appeared nervous. The behaviour of this gentleman coupled with the marijuana he had smelled earlier caused Officer Corbie to be suspicious of the second passenger. He thought that they had either just smoked marijuana or were in possession of it in the car. He couldn't hear this second passenger, so he walked over to the other side of the car. He questioned him about the smell of marijuana, but Mr. Smith did not comment. He asked him to identify himself, and the name Germaine Myers was provided with the birth date April 19, 1994. A conversation ensued. During this conversation, Officer Corbie became suspicious about more than behaviour and the smell of marijuana. The information that the gentleman provided about where he came from and where he lived was contradictory and did not make sense. It caused him to suspect that this individual was lying with respect to his name and the other information that he was providing. For this reason, the officer continued to question the passenger.
[6] Officer Corbie could not remember how long the questioning took, but Officer Sljivo testified that it took half an hour. Officer Sljivo also testified that Mr. Smith became agitated and belligerent during the questioning. According to Officer Sljivo, Mr. Smith started to raise his tone, started questioning them, and tried to pressure them to stop the investigation. According to Officer Sljivo, Mr. Smith's attitude became explosive and he seemed to be in a rush to leave. Officer Sljivo was asked on cross-examination why he did not just tell Mr. Smith he could leave, if he seemed in a rush to leave. He answered that it was not up to him to say that. But he insisted that Mr. Smith was still free to go. Officer Corbie also testified that until he told Mr. Smith he was detained and could call a lawyer, he was free to go.
[7] Officer Corbie testified that he asked all the individuals he questioned for their name, date of birth, and address. He was satisfied with the information he received from all of the individuals except the one who identified himself as Germaine Myers. This gentleman told him that he was a high school student from Brooklyn, and he was visiting his mother for a couple of days. He said he was in college, a college called Brooklyn High. He said his mother lived in Scarborough but he couldn't remember the address. This is the statement that caused Officer Corbie's attention to become focused on Germaine Myers, whom Officer Corbie pointed out in court, by pointing to Tristan Smith. This statement coupled with his nervousness made him suspicious that Mr. Smith was being untruthful. He asked him to step out of the car, so he could see his entire body. Officer Corbie explained in his testimony that there are many reasons why he asks people to step out of their cars, and one of them is officer safety. The other passenger, whose name was Doherty, had robbery charges pending, and it may have been that there were non-association conditions, with which he was required to comply, and this second passenger may be one of those people, and the second passenger seemed to be untruthful.
[8] After asking him to step out of the car, Officer Corbie continued to question him. He testified that he found it very strange that Mr. Smith didn't remember any information on his present address in Brooklyn or his mother's address, or past addresses, and he believed an honest person should be able to remember these things. The more he spoke to him, the more he believed that he was being untruthful about his name and his identification. The information provided just wasn't making sense. Finally, he advised him that he was being detained for "obstruct" and could call a lawyer, but he did not caution him that he could remain silent. He did not advise him that whatever he said would be used against him.
[9] Officer Corbie testified that they discovered the true identity of Tristan Smith by running a check on the car license plate and locating information which associated Mr. Smith with a birth date of June 27, 1991, to the car. They also confirmed his identity by using RICI pictures that are used when people are arrested. This was all confirmed in the testimony of Officer Sljivo, who checked the plates, and who also discovered that he was in breach of his undertaking. Officer Sljivo then arrested him for obstruct police officer and fail to comply with his undertaking at 4:00 p.m. Officer Corbie recalled that even though he had a cell phone, he did not exercise his right to counsel immediately. Officer Sljivo's evidence was that he wished to speak to duty counsel, but he did not do so until an hour and a half later at the police station.
[10] Once arrested, a search incidental to arrest was conducted, and marijuana was found in a clear plastic bag in his right shoe. Officer Corbie testified that he did more than a pat down search, and it was because he had smelled marijuana, he asked him to remove his shoe. Officer Sljivo testified that a pat down search was done, during which Mr. Smith advised that his driver's license was in his underwear, and there was marijuana in his right shoe. That is when he was asked to remove his shoe, and the marijuana was found. Then Mr. Smith was advised that there would be an additional marijuana charge. His underwear was searched later at the police station, and his driver's license found.
[11] The testimony of the two investigating officers is the only testimony that the court has heard in this case. It is unimpeached and uncontradicted. Both officers withstood expert and rigorous cross-examination and did not deviate from their original evidence. The evidence of the officers was on the whole internally and externally consistent. There were minor inconsistencies. For example, with respect to the search incident to arrest, Officer Sljivo testified that it started out as the usual kind of pat down search, but when Mr. Smith indicated that his license was hidden in his underwear and he had marijuana in his shoe, he was asked to remove his shoe, whereupon the marijuana was found, and Mr Smith was told about the additional marijuana charge. Officer Corbie's testimony was a bit different. According to him it was more than the usual pat down search due to the smell of marijuana that he detected at the outset. There also seems to be a disconnect with respect to what occurred when Mr. Smith was advised of his rights to counsel. Officer Corbie says that he was advised of his right and did not wish to exercise it. Officer Sljivo says that he wanted to consult duty counsel. For some reason it seems that Mr. Smith did not speak to duty counsel until one and a half hours later at the police station. Officer Sljivo also seems to have a vivid recollection of Mr. Smith's belligerence, when questioned by Officer Corbie about his identity. Officer Corbie's recollection is less detailed, perhaps because he was engaged in the dialogue and doing most of the talking. I also found it odd that Officer Sljivo was of the opinion that it was not his place to tell Mr. Smith that he could leave, when he became loud and impatient. But it is my view that if his opinion is wrong, that this reflects negatively on his knowledge and training rather than his credibility. He was just testifying truthfully about his inappropriate belief. I have considered the minor anomalies and inconsistencies in the testimony of the two officers, and I have concluded that they are really hallmarks of not having colluded in their testimony. Rather than detracting from their credibility, they enhance it.
WAS MR. SMITH ARBITRARILY DETAINED CONTRARY TO S. 9 OF THE CHARTER?
[12] Section 9 of the Charter states that, "Everyone has the right not to be arbitrarily detained or imprisoned." The word detention has been defined by the Supreme Court of Canada at paragraph 44 in the case of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, as "a suspension of the individual's liberty interest by a significant physical or psychological restraint." The test to be applied is elaborated as follows:
Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[13] Paragraph 32 of the Grant case explains "the subjective intentions of the police are not determinative," and the trial judge must engage in a "realistic appraisal of the entire transaction as it developed" in order to determine if the line has been crossed between police conduct that respects liberty and the individual's right to choose. This line is expressed in the companion case of R. v. Suberu 2009 SCC 33, [2009] 2 S.C.R. 460, as the line between general questioning and focussed interrogation. The facts in the Suberu case are instructive with respect to when this line is not crossed. In that case the court found that when the investigating officer said, "Wait a minute, I need to talk to you before you go anywhere," that this did not crystallize a detention, even though the officer said this after Mr. Suberu queried whether he was free to go. The court characterized the short verbal exchange between them that was followed by a brief licence plate check as a preliminary investigative detention, where Mr. Suberu was only momentarily delayed. The court decided the line had not been crossed during this "very brief dialogue" and "preliminary questioning to find out whether to proceed further." When the police are uncertain whether or not they are crossing this line, the Grant case has the following to suggest at paragraph 32: "In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual, it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go."
[14] I will now proceed step by step and appraise the whole transaction that terminated with the arrest of Mr. Smith in order to determine when the detention began. The chain of events began, when the attention of the investigating officers was drawn to the actions and body language of an individual they observed, while driving a marked police vehicle on routine patrol in the entertainment district, described in their evidence as a high crime area. A male person saw them, quickly turned around, and went into the inside portion of a parking lot. They decided this was suspicious and drove their police car into this part of the parking area. There was no evidence before the court as to whom the individual they initially saw was or what became of this person. Whether or not they were right to be suspicious of this man, these actions on their part consisted of merely observing him and then following him into a parking area. These actions did not restrain anyone physically or psychologically or suspend anyone's liberty. Once in the parking area, the officers spotted three individuals in front of a car and decide to talk to them. There is nothing impermissible about this. Short conversations and quick checks of identifying information occurred, and the officers were satisfied that the information they had received was correct. This is very much like the preliminary questioning and brief checks in the Suberu case to decide whether to proceed further.
[15] The officers then observed that the driver of the car had a nervous attitude and that he had red and puffy eyes, but they detected no smell of alcohol. They put these two things together and they believed he was under the influence of some sort of stimulant drug. Since he was connected with the car, they thought they should look inside to see if there were any drugs in plain view. So far, I see no problem. This was all legitimate police activity. The time that all this took can be accurately described as brief, and there was no physical or psychological restraint on anyone. Then they got closer to the car and they detected the faint smell of marijuana. They felt they should investigate this smell. They saw people in the car. They tapped on the window. Someone rolled down a window. The smell got stronger. They believed that it came from inside the car. They briefly questioned one passenger, who calmly answered their questions, and in spite of their information that he had a robbery charge pending, they were satisfied. So far each short detention of each individual fits within the parameters of the Suberu case. The conversations and police checks and verifications of information are all brief. No one has been physically or psychologically restrained.
[16] Then Officer Corbie talked to another passenger the officers eventually found out was Mr. Tristan Smith. He evaded a question about the marijuana smell. He spoke so softly, Officer Corbie had to move to the other side of the car to get close enough to hear. He slouched and was very nervous. When asked for indentifying information, his story did not add up. When the officers started talking to him, they did not say anything as strong as, "Wait a minute, I need to talk to you before you go anywhere." But I will not engage here in a "minute parsing of words and movements." I have to consider the whole context.
[17] When Mr. Smith's story about where he came from and where he lived did not add up, his encounter with the police could no longer be characterized as a general inquiry regarding the smell of marijuana or Mr. Smith's identity. Given that Mr. Doherty had pending robbery charges, it was entirely reasonable for the police to inquire as to the identities of all the individuals in his company, in order to determine if any of them were people with whom he was not permitted contact pursuant to his bail. But once the officers believed that Mr Smith was lying about his identity, the character of his encounter with the police changed. He was no longer being asked the same general questions as the others. He was singled out for a focussed investigation of suspected false information about his identity and address. He was asked to leave the vehicle for officer safety reasons among others, and while outside the vehicle, he was rigorously questioned. He became impatient, upset, and belligerent. He wanted to leave, and he was not told that he could leave. The very officers, who protested in court that right up until he was told that he was detained, he could have left, did not tell him he could leave. If he was really free to leave, they should have told him. His impatience, belligerence, and desire to leave should have signalled to the officers that their conduct may be having a coercive effect on him. If it were truly their view that he was free to leave, then according to paragraph 32 in Grant, they should have informed Mr. Smith in unambiguous terms that he was under no obligation to answer questions and was free to go. They failed to do this, and it should be obvious to any reasonable person that Mr. Smith felt he could not leave.
[18] The Crown made a long and repetitive submission that the only reason the conversation between the police and Mr. Smith took longer than the others, up to half an hour, was that it took longer to question him and to investigate the incorrect information he provided. So therefore it was still not anything more than the same general inquiry that had been made of the others. It just took longer because Mr. Smith was lying. This was still just preliminary questioning and checking information like in the Suberu case, and even less coercive than the "Wait a minute, I need to talk to you before you go anywhere" language in Suberu. I disagree. The investigative detention in Subaru was referred to throughout the judgment as brief, and this characterization was crucial to the court's ultimate finding. The length of time for which a suspect is questioned has always been an essential consideration with respect to the characterization of a detention. Iacobucci J. in R. v. Mann 2004 SCC 52, [2004] 3 S.C.R. 59 summarized at paragraph 45:
To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. (emphasis added)
[19] And the Supreme Court of Canada reiterated at paragraph 55 in R. v. Grant:
Earlier suggestions that an unlawful detention was not necessarily arbitrary (see R. v. Duguay (1985), 18 C.C.C. (3d) 289 (Ont. C.A.)) have been overtaken by Mann, in which this Court confirmed the existence of a common law police power of investigative detention. The concern in the earlier cases was that an arrest made on grounds falling just short of the "reasonable and probable grounds" required for arrest should not automatically be considered arbitrary in the sense of being baseless or capricious. Mann, in confirming that a brief investigative detention based on "reasonable suspicion" was lawful, implicitly held that a detention in the absence of at least reasonable suspicion is unlawful and therefore arbitrary within s. 9. (emphasis added)
[20] On the facts of this case, I am satisfied that when Mr. Smith was asked to step out of the car, he transformed into a person around whom suspicion started to focus from a person of interest like all the other individuals who were questioned by the officers. He was asked to step out at the point when Officer Corbie was convinced he was lying, and this is precisely what he testified had heightened his concern about officer safety. Mr. Smith's story simply did not add up. This was the moment, when the detention crystallized. It was the moment when the questioning started to become rigorous, he was singled out for focussed attention, and the character of this encounter with the police changed. It remains for me to consider whether or not it was an arbitrary detention. The officers had reasonable grounds to detain Mr. Smith at this point. I agree with the officers that his story did not make sense and it did not add up. There were grounds to detain him and investigate further into whether or not he was obstructing a peace officer by providing a false name. There were grounds to detain him, while they verified the information provided. Had the officers cautioned him and advised him of his right to counsel before questioning him further, it would have been a lawful detention. Because these things were not done, the detention violated s.9 of the Charter.
WAS MR. SMITH PROMPTLY INFORMED OF THE REASON FOR HIS DETENTION AS REQUIRED BY S. 10(A) OF THE CHARTER?
[21] Once detained, Mr. Smith knew that the officers were investigating the odour of marijuana. He also knew that he provided a false name to the police. He also had a reason for doing this, because he was in violation of his undertaking, and trying to avoid getting caught. He was getting upset and belligerent over the questioning about his identity and address, and it should have been obvious to him in all the circumstances that this was the reason why he was being detained. I find no violation of s. 10(a).
WERE MR. SMITH'S RIGHTS TO COUNSEL AS GUARANTEED BY S. 10(B) OF THE CHARTER VIOLATED?
[22] Section 10(b) of the Charter states that, "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right." R. v. Suberu sets forth that a police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention. The risks of compelled self-incrimination and interference with liberty are present as soon as a detention begins, and this is why the phrase "without delay" must be interpreted as immediately and applies equally to being informed of the right as it does to retaining and instructing counsel. I have found that Mr. Smith was detained once he was asked to step out of the vehicle in which he was a passenger, and the officers began rigorously questioning him. Mr. Smith was not informed of his right to counsel immediately upon detention, because the officers believed that he was not detained at that point. When he became impatient and wanted to leave, they did not tell him that in their opinion he was free to leave. Once they told him he was detained, he was informally told he could call a lawyer. He was read his rights to counsel, when he was subsequently arrested. Even though he had a cell phone with him, he did not exercise his right to counsel until one and a half hours later at the police station. His s. 10(b) rights were infringed. He should have been informed of his right to counsel as soon as he was detained. The officers should also have turned their mind to whether there was a reasonable opportunity to consult counsel.
WERE MR. SMITH'S S. 8 CHARTER RIGHTS TO BE SECURE AGAINST UNREASONABLE SEARCH AND SEIZURE BREACHED?
[23] Mr. Smith was not cautioned or advised of his rights to counsel prior to rigorous questioning that led to him to being detained for obstruct police, then charged and arrested for obstruct police and breaching his undertaking. I have found that he was detained when he was asked to step out of the car in which he was a passenger and rigorous questioning commenced. The police believed that he was not detained prior to the questioning, but only afterwards when Officer Corbie told him he was detained after being questioned. The evidence of Officer Sjlivo establishes that Mr. Smith wanted to leave during the questioning, but he was not told that he was free to leave. It should have been obvious to the officers that he did not feel he was free to leave, and that is why he was getting impatient and belligerent. He was advised informally that he could call a lawyer, once he was told he was detained. He was given his rights to counsel when he was arrested. Even though he had a cell phone with him, he did not exercise his right to counsel until one and a half hours later at the police station.
[24] He was searched incident to arrest, during which he revealed that he had his driver's licence in his underwear and a bag of marijuana in his shoe. The marijuana was seized from his shoe at the scene, and the licence seized from his underwear later on at the station. The officers found out the true identity of Mr. Smith primarily from the searches they conducted based upon the vehicle plate and RICI photos, and not from how Mr. Smith responded to questions after he was detained. Before the rigorous questioning, the officers had already concluded that he was lying. After he was arrested and advised of his right to counsel, Mr. Smith revealed the location of the marijuana and his licence. Mr. Smith was questioned, then arrested and searched subsequent to an illegal detention. Even though he was advised of his right to counsel prior to his statement to police that there was marijuana in his shoe, this admission was tainted by the previous illegal detention and questioning. Although it would usually be reasonable for officers to search a shoe upon being told marijuana was in there, this whole interaction was tainted by the prior unlawful detention and in my view, these circumstances affected the voluntariness of his choice to provide the information.
[25] The same reasoning applies to the driver's licence with one difference. The search at the station for the driver's licence was more intrusive than the one at the scene for the marijuana. The same expectation of privacy does not attach to searching a shoe and searching one's underwear. The officers showed some understanding of the difference in the degree of intrusiveness of the two searches, when they decided to wait until they reached the station before retrieving the licence from Mr. Smith's underwear. But I am mindful that this was not the kind of invasive search carried out as a matter of routine policy that the Supreme Court of Canada admonished against in R. v. Golden, (2001), 2001 SCC 83, 159 C.C.C. (3d) 449, para. 95. The compelling reason for the search was that they had good reason to believe there was a piece of evidence in there. Mr. Smith had told them his licence was in there. Furthermore, after finding drugs in Mr. Smith's shoe, they would be justified in doing a more intrusive search to locate further drugs on his person. See Golden, paras. 96-98. If there had been no illegal detention that preceded this seizure of the licence from Mr. Smith's underwear, then this search would have been justifiable. But this search was also tainted by the Charter breaches at the outset. For this reason, I find violations of Mr. Smith's s.8 rights.
SHOULD ALL THE STATEMENTS MADE TO THE POLICE AFTER MR. SMITH WAS DETAINED AND THE LICENCE AND MARIJUANA SEIZED BE EXCLUDED FROM THE EVIDENCE PURSUANT TO S. 24(2) OF THE CHARTER?
[26] The exclusion test that I must apply is found at paragraph 71 in R. v. Grant, which states:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.
[27] The Charter infringing conduct in this case is serious. Three separate rights were breached. Mr. Smith was rigorously questioned after he was unlawfully detained and before he was given his rights to counsel and cautioned against incriminatory statements. The officers seemed to really believe that Mr. Smith was not detained at this point and was free to leave. When it became apparent that Mr. Smith wanted to leave, they did not tell him that he could, as the Grant case explicitly provides. They also did not seem to realize that they already had grounds to detain Mr. Smith before the rigorous questioning. Because they did not believe him to be detained, they did not caution him or give him his rights to counsel. The officers appeared to be ignorant in some respects of Charter standards. Citing R. v. Buhay and other jurisprudence, the Supreme Court of Canada affirms at paragraph 75 of R. v. Grant that, "Ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith." I cannot say here, as the court did in Grant, that the officers were operating in an environment of uncertainly. The Grant case was decided almost three years ago, and the paragraph 32 option for police to explain if there is uncertainty that an individual can leave should be well known by now. It also adds to the seriousness of the infringing conduct that Mr. Smith had a cell phone when he was advised of his right to counsel, but did not exercise that right until one and a half hours later at the station. There is no evidence that the officers ever turned their minds to the issue of whether there was a reasonable opportunity to consult counsel via cell phone. The phone number is provided as part of rights to counsel. The seriousness of the Charter infringing conduct weighs in favour of excluding the evidence.
[28] The impact on Mr. Smith's Charter protected interests against self-incrimintation with respect to the marijuana possession is high with respect to the marijuana seized. Even though he was arrested, cautioned, and advised of his right to counsel before he confessed that there was marijuana in his shoe, there had been an illegal detention prior, which tainted his statement. This statement led to finding the marijuana in his shoe. It is not so high with respect to the other statements and the licence that was seized. The officers already had reasonable grounds that Mr. Smith had lied about his name before he was asked to step out of the car. His own words were not particularly additionally incriminating. Their own searches and use of RICI photos rather than anything he said revealed his identity. So with respect to the obstruct police charge and breach undertaking charges, his own words after the detention plus the licence did not incriminate him much further, so the Charter infringing conduct had less impact on his Charter protected interest against incrimination than the evidence on the marijuana charge. The Charter protected interest in freedom from interference with liberty was also affected by the length of time he was detained, and later on, in custody. His Charter protected interest in liberty was also impacted by the two searches of his person, and pat-down search that included the search of his shoe, and the other more invasive one conducted at the station.
[29] Society's interest in adjucation on its merits does not weigh in favour of inclusion of the evidence of marijuana seized after an illegal search following an illegal detention and breach of s.10(b). The evidence of marijuana here is real evidence and it is highly reliable, but the breaches of s.8, s.9, and s.10(b) are serious, they have a significant impact on Mr. Smith's Charter protected interest against incrimination and interference with his liberty, and as such, I am excluding the evidence of marijuana that was seized.
[30] The police cannot be said to have been acting in good faith. There was a significant lack of knowledge and appreciation by the police for the Charter rights of Mr. Smith. The impact on the Charter protected interests of Mr. Smith of the Charter breaches is lower in relation to the obstruct police and breach of undertaking charges, and society's interest in adjucation of these charges on their merits is high. The statements made by Mr. Smith while detained are less significant that the other evidence on the obstruct police and breach of undertaking charges. The balance tips in favour of excluding the evidence of Mr. Smith's statement that there was marijuana in his shoe and of marijuana seized. It tips in favour of including the other statements made to police after Mr. Smith was detained and before he was arrested and his driver's licence seized. It was conceded at trial that no voluntariness voir dire was necessary in relation to these statements. For all of these reasons, they are admissible.
CONCLUSION
[31] For all of the above reasons, Mr. Smith's s.8, 9, and 10(b) rights have been infringed. The statement that marijuana was in Mr. Smith's shoes plus the real evidence of marijuana will be excluded pursuant to s.24(2). The other statements in relation to the obstruct police and breach of undertaking charges are admissible. The statements of Mr. Smith after his detention and before arrest included far more than simply the actus reus of misidentifying himself. They included all the contradictory information regarding his address and where he went to school. This would all have required a voir dire on voluntariness in order for the statements to be admissible, had it not been for the clarification at trial that it was only the Charter aspect of the statements that was being litigated.
[32] Given that Mr. Smith's statement that there was marijuana in his shoe and the real evidence of marijuana seized has been excluded, and there is no other evidence in this case that Mr. Smith was in possession of marijuana other than the circumstantial evidence of a smell of marijuana that is consistent with any one of a number of explanations most of which would not implicate him, the possession of the marijuana charge is dismissed. Given that I have not excluded any evidence on the breach of undertaking and obstruct police charges, I am satisfied that the Crown has proved these two offences beyond a reasonable doubt, and there will be findings of guilt. It was conceded at trial that the evidence made out the offences, so I need not provide reasons for why I agree that the elements of these two offences have been proved beyond a reasonable doubt.
[33] I invite sentencing submissions on the breach of undertaking and obstruct police charges.
Justice Sheila Ray