Court File and Parties

Court File No.: 3975 01 and 3979 01

Date: July 5, 2012

Ontario Court of Justice (Toronto Region)

Between:

Her Majesty the Queen Respondent

— And —

Daniel Kang and Daniel Nagy Applicant

Before: Justice G. Sparrow

Ruling on Charter Application

Counsel:

• Joshua Cramer, Counsel for the Crown
• Misha Feldmann, Counsel for the Applicant
• Christian Angelini, Counsel for the Applicant

Sparrow J.:

Overview

[1] The applicants are charged with possession of 470.56 grams of marijuana for the purpose of trafficking. Kang is also charged with breaching a recognizance by being in possession of non-prescription drugs. They apply for exclusion of the evidence of their possession on the basis that police breached their rights pursuant to section 8, 9 and 10(b) of the Charter.

The Facts

[2] It is not contested that Detectives Burke and Sullivan of the Toronto Police Service were patrolling a suburb an area of Toronto on May 17, 2011, in response to a series of recent robberies and break and enters. Burke, who had 24 years of experience at the time, was in charge of 42 division's crime management unit, charged with identifying crime trends and developing plans to address them.

[3] Detective Burke testified that they were driving westbound on a street called Beverly Glen Boulevard at about 1:40 pm; Sullivan was driving, he was the passenger. He noted Nagy walking eastbound on the south side of the street towards a nearby mall, appearing somewhat suspicious because he was looking around in all directions. He also noticed that Nagy was carrying a gym bag which appeared to be weighted at one end.

[4] Burke testified that they lost sight of Nagy when turning the car around. They therefore drove around the mall and entered it briefly in search of him. At about 2 pm, while driving westbound on Beverly Glen, they saw Nagy walking westbound on the north side of the street with Kang, who had the gym bag on his shoulder.

[5] Burke testified that they decided to stop the applicants just to talk to them, and to find out if they were residents of the area, as part of their "community policy" duties. These duties involve getting to know local residents as well as "transients". In cross-examination he acknowledged that he would probably not have stopped them if their conduct had not been somewhat suspicious. He wanted to "see what he (Nagy) was up to".

[6] He further testified that he told Sullivan to pull over; Sullivan pulled into a driveway on the north side of the street, blocking the sidewalk. Both officers, who were in plainclothes, stepped out; the applicants were about 10 to 15 feet east of the unmarked car. In cross-examination he stated that he did not know why Sullivan didn't simply pull over to the curb to talk to them, rather than block the driveway. He immediately showed his badge to them, and asked them what they were up to. Both asked if they were under arrest, prompting Burke to ask if he should be arresting them.

[7] Burke testified that at that point Kang stopped at arm's length in front of him; Nagy "veered off" towards the rear of the car, where Sullivan was standing. He immediately noted the smell of marijuana emanating from Kang, and asked both if they had been smoking it. Kang said no; Nagy said "I don't smoke dope". Burke bent over towards the bag, and noted the smell of marijuana coming from it. He arrested Kang for possession of marijuana and advised him of his right to counsel including the right to legal aid. Kang did not respond. He then took the bag from Kang's shoulder, put it on the hood of the car and opened it, finding a white plastic bag containing a zip lock bag which contained two vacuum sealed packages of marijuana. He then arrested Kang for possession for the purpose of trafficking and directed Sullivan to arrest Nagy for the same offence. The weight, referred to about, is uncontested.

[8] Burke testified that the smell of fresh, unburned marijuana was strong, especially when he bent over towards the bag. He testified as to his considerable experience in smelling marijuana, including during marijuana seizures throughout his 12 years with the drug squad, and during investigations of grow operations. He also testified that he has seized numerous vacuum sealed packages of marijuana which clearly exhibited a smell.

[9] Burke testified that he searched Kang pursuant to the arrest, and found $1600 in his pocket. He placed him on the rear of his car, where he again advised him of his right to counsel and told him to "shut up". He called for a scout to transfer the applicants to the station.

[10] Burke testified that his initial conversation with the accused lasted less than a minute, and that the search of the bag took 15 to 30 seconds.

[11] Detective Sullivan's testimony largely corroborated that of Detective Burke. He agreed that they stopped the applicants to conduct "community policing," and because of Nagy's suspicious behavior. He agreed that they did not initially have grounds for detention. He said he went to the back of the car in order to ensure "officer safety". He agreed that Burke arrested Kang after smelling the marijuana, and told him to arrest Nagy after searching the bag. He agreed that the arrests took place within one and a half minutes of the initial conversation.

[12] Sullivan did not explain why he parked on the driveway rather than at the curb. In cross-examination he explained that he stood at the back of the car so that he could clearly see what was going on between Burke and Kang. He said that Nagy was about five feet from him when he arrested him. He did not think he had detained him before arrest. He then placed his hands on the back of the car and conducted a pat down search. His only reason for the arrest was the direction provided by Burke.

[13] He also said that he thinks that he provided Nagy with his rights to counsel and that he asked the asked officers who arrived in the scout car to do so as he did not have his notebook containing the complete and proper wording with him. Sullivan also stated that he noted a pungent smell of marihuana emanating from the bag when it was placed in his car for transport.

[14] Nagy commenced his testimony by acknowledging that he has a criminal record for robbery and attempt theft under, for which he received a minimal sentence. He was 20 at the time of his testimony.

[15] He testified that he went to the mall that afternoon to buy a pair of shoes, and to meet up with Kang. They were walking to a fitness club when the officer's car pulled into a driveway, blocking their path. The officers jumped out, flashed their badges, approached the applicants and separated them. Sullivan asked him what he was doing; he said going to the gym. At this point he was at the back of the car, about five feet from Kang.

[16] Nagy asked both officers if they were under arrest; they asked "do you want to be" to which Nagy responded "no".

[17] Nagy testified that he did not think he could leave, and that he had to answer the officers' questions. He described Sullivan as large and muscular, and said that in order to get around him and the car he would have had to walk into traffic. He said that he then said "if I'm not under arrest I would like to leave". As he stepped away Burke yelled "Sully grab him" and that both men were arrested for trafficking. Sullivan then grabbed the back of his neck and placed his hands and the bag with the new shoes on the trunk. He estimated that seven to ten minutes passed between the time he was stopped and the time he was grabbed by the neck.

[18] He also said that the gym bag which he was carrying earlier did not smell of marijuana.

[19] In cross-examination by counsel for Kang, Nagy said that they were about two to three meters from the officers when they got out of the car. Sullivan then stood behind the car, blocking Nagy. They engaged in about five minutes of small talk, during which he did not think that he could leave, and thought he would be arrested if he did. He agreed that the marijuana was sealed in vacuum bags and a zip lock bag, inside a white bag in the gym bag. He also had gym shoes and shorts in the gym bag.

[20] In cross-examination by the Crown, Nagy stated that he had purchased the marijuana several weeks before in the area of Wellesley and Yonge. He said that he approached a male there and asked if he was selling marijuana; the male said yes. Nagy returned two hours later and made the purchase for $2500. He carried the marijuana around with him in the bag most of the time when he was out of the house, so that his father, with whom he resided, would not find it. He said that it did not smell. He testified that he never used or sold any of the marihuana, and did not know what he was going to do with it, although it was "possible" he would make a profit on it. Nagy testified that he passed the gym bad to Kang at the mall, in order to show him his new shoes; Kang continued to carry it for two minutes, until they were stopped.

[21] He also said that he told Sullivan that he was going to leave if he was not under arrest; at that point Burke said "grab him". Sullivan grabbed him as he tried to walk away.

[22] He stated that after he was arrested everything was a blur, and that he did not remember officers advising him of anything except to shut up.

Kang

[23] Kang testified that Nagy's version of the story was correct, and that Nagy had passed him the gym bag in order to show him his new shoes. He said that Burke asked him what he was doing; he said they were going to the gym. Burke asked him what was in the bag, to which he responded "I don't know". Kang asked if he was under arrest. Burke told Kang that he just wanted to talk, then grabbed his arm; Kang asked him if that was legal.

[24] Kang testified that Burke then asked him to open the bag, to which he responded that he did not consent to the search. Burke took the bag off his shoulder, put Kang's hands on the front of the car, told Sullivan to hold on to Nagy, searched the bag, found the marijuana, and then arrested him, patted him down and cuffed him. He was then sent to the station in a second car. He described Burke's manner as hostile, and said that he felt detained from the beginning of the encounter.

[25] Counsel for Kang concedes that the right to counsel might have been read after the arrest.

[26] In cross-examination, Kang said he felt that he had to answer all the officer's questions and comply with directions. Burke never asked him if he smoked marihuana. He acknowledged that he used marijuana occasionally in university.

[27] Kang also stated that the entire incident occurred in a two minute period.

Issues

[28] Counsel for Nagy argues that the officers detained the applicants arbitrarily when they pulled the car in front of them, and began questioning them. He emphasized the fact that both said they did not think they could leave. He submitted that police had targeted Nagy when they first saw him, then drove around for twenty minutes looking for him. Burke attempted to cover up the targeting with the term "community policing".

[29] Counsel also argues that the subsequent search was illegal because 1) it was tainted by the arbitrary detention and 2) even if Burke smelled marijuana the smell is not a sufficient basis for the search: see R. v. Polashek. He argues that the evidence should be excluded under s.24(2) as the breaches of section 8 and 9 were serious and because section 10 was also breached by the failure to read the right to counsel upon detention. He argues that the series of breaches are very similar to those which resulted in exclusion in R. v. Grant, 2009 2 SCCR 353.

[30] Counsel for Kang makes the same arguments. He adds that Burke is not credible in stating that he believed he had the right to arrest Kang based on the smell, given that he did not order that Nagy be arrested until after he found the marijuana. He describes the officers' conduct as a flagrantly impacting on the important right to liberty. With respect to s.24(2), he adds that although society has an interest in the prosecution of these offences, they are not as serious as offences such as those involving guns.

Argument

Credibility

[31] With respect to the facts, Crown counsel submits that Nagy's version of many of the events - buying a large quantity of marijuana from a stranger out of the blue, not thinking about what he was going to do with it, carrying it with him wherever he went - is incredible. He also argues that the story as to why Nagy gave the bag to Kang - to show him a new pair of shoes - then not taking the bag back is at best odd. Furthermore he points out that Nagy said the interaction with police lasted several minutes, while other witnesses said it was fast.

[32] With respect to Kang, he points to a discrepancy in his testimony as to the time it took for an exchange with Burke in his cross examination as compared to his evidence in chief. He also points to certain discrepancies between the testimony of Burke and Kang - particularly Kang's contention that the bag was grabbed off his shoulder.

[33] I agree that Nagy's story as to how he came to buy the marijuana, carrying it around and not knowing what he would do with it strains credulity. His inconsistent testimony and his overestimate of the time taken for the exchange are not particularly significant. Both witnesses' testimony that Kang was carrying the gym bag so that Nagy could show him his shoes, and that Kang continued to carry it for no reason is odd at best. I also note that Kang never explained why he had $1600 in his pocket.

[34] In my view the officers were credible and straightforward. Burke acknowledged candidly that Sullivan could have just pulled over to the curb. I accept their version of the events, including Burke's testimony that he smelled marijuana on Kang, and emanating from the bag before he took it and looked into it. His experience with the smell of marijuana is extensive, as described above; he was obviously sensitive to the smell. He was unshaken in his version of the sequence of events; Sullivan's testimony was confirmatory. The fact that he did not order the arrest of Nagy until after he opened the bag is irrelevant.

Section 9

[35] However, even on the evidence of the officers, in my view the applicants were detained when the officers pulled in front of them, got out and flashed their badges. The detention was complete when Sullivan moved to the rear of the car.

[36] The test for detention was clearly established in R. v. Grant 2009 SCC 32, 2009 2 S.C.R. 353. The majority concludes at paragraph 44 that detention "refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint". Psychological detention occurs either when an individual must comply with a restriction, request or demand, or a reasonable person would conclude by reason of state conduct that he must comply. Relevant factors include singling out an individual for focussed investigation, and the nature of police conduct, including language used, physical contact, the place and presence of others, and the duration of the encounter.

[37] In R. v. Suberu 2009 SCC 33, 2009 2 SCR 460, the Supreme Court of Canada confirmed that the right to counsel must be read immediately upon detention.

[38] Crown counsel relies heavily on R. v. Nesbeth 2008 ONCA 579, 2008 O.J. No. 3086 (OCA), a case in which officers encountered the accused in an apartment building, smelling of marihuana; when asked what he was doing Nesbeth ran, threw a shopping cart in the path of police and tossed his back pack away. He was ultimately tackled by police who had been yelling at him to stop. The Court held that he was not detained before he was tackled; a demand to stop was issued, but not complied with. The ultimate detention was found to be valid given the entirety of Nesbeth's behaviour including tossing the back pack.

[39] In my view, Nesbeth is distinguishable from this case; the applicants did not fail to comply with a specific demand, run or toss any object. The initial confrontation of the applicants involved much more serious police conduct than simply asking "what are you doing?" in an apartment building.

[40] In my view, although there was no specific direction to the applicants, a detention occurred. The police blocked their passage on the sidewalk, at close range, with a car, and stepped out. Burke acknowledged that Sullivan could have simply pulled over to the curb to ask a few questions, and that he did not know why he blocked the sidewalk. They flashed their badges; Burke asked them if they had been smoking marijuana. Sullivan went to the rear of the car, hampering passage behind the car. All of this occurred in broad daylight in a residential area, where the right to walk along a sidewalk freely is expected.

[41] In addition, both witnesses were credible in stating that they felt detained. Although Nagy veered toward the rear of the car, he stated that he could not get around it easily and that he was blocked by Sullivan. Defence counsel have succeeded in demonstrating that their clients were arbitrarily detained.

Section 8

[42] As stated above, I accept Burke's evidence that he smelled marijuana emanating from Kang and the bag. Counsel for Kang argues strenuously that Polashek, supra, prohibits a finding that reasonable and probable grounds for a search exist based solely on the smell of marijuana; however I agree with the Crown that paragraph 14 makes it clear that a finding can be made that the smell of marijuana provides the requisite grounds for arrest: "I would not go so far as was urged by the appellant that the presence of the smell of marijuana can never provide the requisite reasonable and probable grounds for an arrest".

[43] Burke has extensive experience, and clearly identified the smell. In addition, he relied on certain suspicious activity - Nagy looking around, the switching of the bag. In my view he had reasonable and probably grounds to arrest Kang, then search the bag and along with Sullivan arrest both for possession for the purpose.

[44] However, I agree with defence counsel that the breach of section 9 became the basis for the search, and therefore tainted it. As stated in R. v. N.N. 2009 O.J. No. 4574 (O.C.J.), at paragraph 50, "While the search and arrest have the appearance of legality divorced from prior Charter breaches, in fact they are both the product of section 9 and 10(b) violations, and should be analyzed as such (R. v. Goldhart) SCC. At paragraph 38 of Goldhart, the court states that a Charter breach can be an integral part of a single transaction.

[45] Kang had little, if any expectation of privacy in the bag; any breach of his section 8 rights is therefore minor. Given the temporal link between the detention and the search, in my view Nagy's rights under section 8 were breached.

Section 10

[46] In my view, on all of the evidence it is clear that the applicants were given their Charter rights upon arrest; however they were not informed of their right to counsel immediately upon detention. Section 10(b) was therefore technically breached, although the breach was minor given that the arrest and reading of the rights followed detention so quickly.

[47] With respect to section 10(a), given that Burke asked immediately if they had been smoking marijuana, I do not find evidence of a breach.

Section 24(2)

[48] With respect to the three steps of analysis required by Grant, in my view the police conduct was wrong, but not extremely serious or flagrant. It is clear that the officers had the right to ask a few questions; however, as stated above they should have pulled over to the curb to do so. Instead they blocked a public sidewalk and Sullivan went to the back of the car, creating a detention.

[49] The detention, however was brief and did not involve any touching of either applicant until Burke smelled the marijuana. Although the officers acted jointly, Burke did not pull into the driveway and did not know why his partner did so. His initial questions were not particularly intrusive or offensive.

[50] Finally, it should again be noted that the conduct in relation to Kang was less serious because of his very minimal expectation of privacy.

[51] With respect to the rights impacted, the right to liberty is important and was clearly breached. However, the s. 9 breach was very quick; Burke smelled marijuana right away, and the arrest was based on reasonable grounds. The impact of the breach was therefore limited. His actions were not as serious as those described in the recent case of R. v. Brown O.J. No. 1599 (OCA), in which an officer made an invalid arrest on a sidewalk without sufficient investigation, creating a serious violation of s. 9.

[52] Finally, the evidence is reliable and essential to the Crown's case, although marijuana is not the most serious of illegal substances. A balancing of these three factors favours admission of the evidence under the framework in Grant.

[53] The evidence of the marijuana will be admitted.

Released: July 5, 2012

Justice Geraldine Sparrow