Ontario Court of Justice
Old City Hall, Toronto Region
Between:
Her Majesty the Queen
— AND —
Kyle Thompson
Before: Justice M.A. Zuker
Heard: October 1, 2 and November 23, 2012
Reasons for Judgment Released: December 11, 2012
Counsel
Sam Siew ……………………………………………………………………………… for the Crown
John Fitzmaurice .............................................................................. for the accused Kyle Thompson
ZUKER J.:
THE FACTS
There are six charges before the Court. There is a three count drug information; possession of marijuana, possession for the purpose of marijuana, and possession of proceeds of crime. There is also a three count provincial information; charges of assaulting a peace officer and fail to comply with recognizance, two counts.
The Traffic Stop
P.C. Jason Crawford, a member of the Toronto Police Services, is a divisional traffic officer in 41 division and on September 25, 2011 at approximately 7:25 he was leaving the scene of an accident at Warden and Lawrence, heading eastbound towards Scarborough General Hospital at McCowan and Lawrence.
He was driving eastbound on Lawrence, at this point Lawrence Avenue East is three lanes in each direction. He was eastbound towards Scarborough General Hospital in lane two of three. His attention was brought to a purple Plymouth in lane one travelling eastbound. He was driving approximately 20 to 30 kilometers. The vehicle was in the lane left of him, a car length ahead. The vehicle travelled from lane one to lane two. He did not see a signal. That is what brought his attention to it. The vehicle then travelled from lane two to lane three, the curb lane and again. He did not see a right signal as it did so.
This vehicle then approached Brimley Road and it did signal at that point that it intended to turn right at Brimley Road. He was able in stopped traffic to pull up beside the vehicle. He observed the rear passenger on the passenger side to be leaning forward and not appeared to be wearing a seatbelt. He got beside the car, approximately a half length. He pulled beside the rear passenger and confirmed that the seatbelt was not being used properly.
He saw the rear passenger leaning forward.
He was the first car behind it to turn right. Immediately after the vehicle and he turned right, he initiated a vehicle stop by engaging his emergency equipment and lights and sirens for my vehicle.
Officer Crawford stated that this was a vehicle stop under the Highway Traffic Act of Ontario.
He initiated the vehicle stop. He voiced over the radio that he was on a vehicle stop. This allowed the dispatcher and the other members of his shift to know where he was and what he was doing.
He stated that he observed a lot of movement between the front passengers and the rear passengers.
He stated that of all vehicle stops he has done, closer to one or two percent result in criminal charges as well.
Officer Crawford gave evidence that he noted that occupants were reaching under the seats and they were not just looking for documents based on his experience.
The Officer's Approach
He got out of his vehicle. He walked up to the passenger side of the vehicle. He did that with his expectation that I would be talking to the rear passenger in regards to seatbelt and then ultimately identifying him. He stated he got approximately five to six feet from the rear passenger side of the vehicle and the rear door opened up. He saw the rear passenger pivot with his knees out and put his feet to the ground. He placed my hand on his left shoulder and said, "have a seat." At that time, the odour of unburned marijuana was so prominent when he opened the door, that, he has determined, with the passenger having his right hand into his jacket.
The right front pocket appeared to be bulky the opening of the pocket, wedged between what would be his sleeve, was a yellow plastic bag sticking out.
It was at that point that he I made the determination that he was in possession of marijuana. He stated he went to grab his arm to get him out to effect an arrest. At that point, he grabbed what he thought was his left arm, but was mostly the jacket and he went to rotate him to try to get him against the car to effect an arrest and at that point with his right hand he came around and swung at him. Officer Crawford stated that they wrestled towards the sidewalk.
He grabbed his arm, he began to say, "get out, you're". He was attempting to say you're under arrest. When they got to the ground after the initial swing, they rolled to the back and they were wrestling around. At one point, the officer stated he had the accused in a headlock with his left arm. He had the officer in a headlock.
Mr. Thompson ran westward behind a utility house situated right next to the sidewalk. He ran behind him. He ran behind this house and jumped over a fence. His pants got caught behind him, on top of the fence tearing them a bit. He was eventually arrested.
Evidence Seized
He secured the jacket. He located marijuana in the pockets, or what he believed to be marijuana in the pockets, in the front right pocket. The marijuana was wrapped in yellow plastic bags that had been torn. The plastic bags were wrapped in such a way that using additional plastic from the plastic bag that almost like a ziptie, or not a ziptie, but a twist tie. There were two pouches or baggies of marijuana.
The officer stated he took two sample weights, one from each of the bulks, one of them, 5.67 grams. The sample of 8.27 grams. There was also a remaining amount of 10.29 grams submitted in a property bag as evidence.
Officer Crawford stated that he had a swelling to his right lip and a mark, not a full cut, but a mark under his left eye, as well as a sore right knee. There was also a bit of swelling to his mouth and also a red mark.
The Scout Car Video
The scout car he was operating that day was equipped with a video camera. It turned on automatically when I engaged my emergency equipment. It has 30 seconds of previous footage.
He stated that he directed the passenger to have a seat. It was to identify him under the Highway Traffic Act for the infraction of not wearing a seatbelt as the rear passenger. He planned to identify him and possibly issue him a ticket for that offence. The gentleman in the backseat opened the door and started to get out of the vehicle and that's when he placed his hand on his shoulder and told him to have a seat.
Officer Crawford stated that it is customary to proceed to the driver's side in traffic stops.
"If I have no reason to speak to the passengers, it's easiest to interact with the driver face to face, as opposed to across people, um, from the back. Um, if my dealings are primarily going to be with the driver, it's just easier to do it that way."
He did not proceed to the driver, but instead proceed to the rear passenger side. He said he anticipated identifying the rear passenger for the, failing to wear the seatbelt. The amount of movement he was seeing in the vehicle, he wanted to be on the side with two passengers, be closer to them and be able to monitor their movements in the car. If he is going to be up there, as opposed to speaking to the driver and worry about two people on the opposite side.
He stated he originally told the male to have a seat and observed his hand to be into his jacket. Once he placed his hand on his shoulder and told him to have a seat, he realized that his hand was in his front jacket pocket and it appeared to be concealing something. As well, the odour of the marijuana was so strong coming out from there that he determined that what he was concealing was marijuana.
Officer's Grounds for Arrest
P.C. Crawford stated that based on these observation he had reasonable grounds to arrest the accused for possession of marijuana. The odour of marijuana, by itself, is insufficient grounds for an arrest. The reasoning behind this is that the odour of burnt marijuana lingers. Is whether the odour is of burnt or unburnt marijuana? Unburnt (or raw) marijuana, in contract, is evidence of present possession.
P.C. Crawford specified that he smelled unburned marijuana.
Mr. Thompson was arrestable for possession of marijuana. The Crown submits that P.C. Crawford was justified in removing him from the vehicle to effect the arrest. The very definition of an arrest involves the officer taking physical control of the accused. Constable Crawford attempted to inform Mr. Thompson of the reasons for the arrest, and had started to do so, before e was interrupted by the accused resisting arrest.
It was unburned, whether fresh or not, it was strong enough that as soon as he put his hand on his shoulder, he leaned towards the car as he sat down and it hit him and there was no mistaking the odour. His intention was to place him under arrest for the possession of the marijuana.
CROSS-EXAMINATION BY MR. FITZMAURICE
Q. All right. In any event, um, just to conclude, at the time of which you get out of your vehicle, you know that you have one black male and you think you have two other males in the front, but, um, race –- their race is unknown? Would that be fair?
A. Sure, that's correct.
Q. At 19:35, you're stopped and then there's a period of time when you're just sitting in your car?
A. That's correct.
Q. Correct? And during that time, if I'm not mistaken, you call in, ah, to determine who the registered owner of the vehicle is, or you check it on your computer?
A. That's, that's incorrect. That was done prior to the vehicle being stopped.
Q. And you determine that the registered owner of the vehicle is a lady, am I correct?
A. That's correct.
Q. All right, but you run the registered owner and you do a CPIC on the registered owner, am I right?
A. Correct.
Q. But a check of the vehicle and a check of the registered owner of the vehicle?
A. It's done, it's done all in unison essentially.
Q. And you have no grounds to arrest the passenger at that time, correct?
A. Not unless he fails to identify.
Q. Right. Yeah, under what circumstances can you arrest somebody, um, for failure to wear a seatbelt?
A. If they are failing to wear a seatbelt and then fail to identify as the passenger.
Q. And what legal obligation, if any, are you under, um, when you approach the passenger?
Q. If the passenger is not free to leave until he identifies himself, is he, to your way of thinking, legally detained?
A. He's detained until he identifies, yes.
Q. All right. So, when you're approaching the car, do your regard the rear passenger as being in a state of detention? Yes or no?
A. I don't know if he's going to identify himself yet. So, no, if he, if he leaves, then I will further investigate the matter.
Q. He's not free to leave, you told me, until he identifies himself?
A. Those are his obligations under the Highway Traffic Act, yes.
Q. All right. If he's not free to leave, he's detained, are we agreed?
A. If he, if he does not identify himself, then yes, he will be detained.
Q. In other words, as you're walking up to the vehicle, you know that the passenger is detained by you, in a state of detention that is until you can get his proper identification from him and he can be given a ticket if that's your wish, am I right?
A. Correct.
Q. You put your hand on him?
A. That's correct.
Q. But and told him to get in, correct?
A. I said, "Have a seat".
Q. And put your hand on him and directed him back into the car?
A. That's correct.
Q. In other words, with the force of your hand, you directed him back into the vehicle?
A. That's correct.
Q. And indeed, you told my friend, well -- he asked you questions, you said well, whether it's fresh or it's not fresh, I can't say, it's just the odour of marijuana, do you remember saying that?
A. Yes, I said it was the odour of unburned marijuana.
Q. Right. Maybe fresh, maybe not fresh?
A. Yes.
Q. And I take it you have no specialized, um, training relating to how long the odour of fresh marijuana will linger in a vehicle?
A. I'm not an expert.
Q. You were satisfied that the odour was there?
A. The odour was there, yes.
A. I was satisfied that it was coming from the passenger that I was dealing with.
Q. So you know that he's got something in his pocket, in addition to his hand?
A. I know he has something bulky in addition to his hand, yes.
Q. And by the time you pull him out of the car, um, you haven't seen any indicia of marijuana?
A. Aside from the plastic bag, his hand being in the, in the pocket and the bulky, um, item in the pocket and the smell.
Officer Crawford gave evidence that during the seatbelt investigation, he formed reasonable grounds to believe that Mr. Thompson was in possession of marijuana and he attempted to effect an arrest accordingly.
Defence Position
It is Mr. Thompson's position that:
that the officer never formed reasonable grounds to arrest him for a drug offence, instead, the officer wanted to know why Mr. Thompson had his hand in his pocket and pulled him out of the car to do a search on suspicion only;
that even if the officer had reasonable grounds to believe that Mr. Thompson was in possession of marijuana, he did not have (and did not claim to have) reasonable grounds to believe he was in possession of marijuana of such a quantity as to make Mr. Thompson arrestable;
that even if the officer was justified in arresting Mr. Thompson; he failed to tell him that he was under arrest and the reasons therefore. (See Criminal Code s. 29(2) respecting "Duty of Person Arresting"); This failure puts the officer outside the "execution of his duties";
that even if the officer was justified in arresting Mr. Thompson for possession of marijuana, the officer used excessive force in the arrest.
Q. Well, but at a certain juncture you're assisting him back out of the car, correct?
A. That's correct.
Q. And I take it, the point in time at which you stopped, um, trying to put him into the car and started pulling him out of the car would be, um, roughly, coincidental with the determination that you've made to place him under arrest for possession of marijuana, am I right?
A. That's, that's correct, in that brief window.
Q. All right. So, at the point in time at which you start to remove him from the car is the point in time at which you have in your own mind formed the grounds for his arrest, correct?
A. Correct.
Q. All right, but I suppose some - the front passenger might have been asked to open the glovebox?
A. I don't know what he was asked.
Q. I mean, you just have no idea at the time, all you're seeing is movement?
A. That's, that's correct.
Q. And similarly, you said something, and you can't see down below the level of the seats, can you? That is below the shoulder level of the people?
A. Correct.
Q. And you're agreeing with me that what you said before recess is that once you realized that he –- once you felt that you had grounds to arrest him for possession of marijuana, you then attempted to pull him out of the car, correct?
A. Yes, obviously the pulling out would proceed the forming of the grounds. The forming of the grounds develops even while my hand is on his shoulder.
A. Not at, at that exact moment, as he's getting out and I put my hand on my shoulder(sic), on his shoulder and say have a seat, prior to that, no, I don't have grounds. As I have my hand on his shoulder and I say that, it's, it's all happening at that exact moment that I'm processing his hand in his pocket, the smell and him leaving the vehicle.
Q. Right. And he may be just getting out of the car to produce his identification?
A. He may be.
Q. Yeah. And there's no impediment to you letting him get out of the vehicle?
A. No, there's, there's nothing standing between me and the door.
A. In terms of me processing it all, and telling him to have a seat and the immediate next step was to ask for his identification, that, that was the intent of what was to happen. Unfortunately, when I placed my hand on his shoulder and said that and it was all processed that he was in possession of marijuana.
Q. I'm sorry, you put your hand on his shoulder ...
A. Correct.
Q. ... before you formed the grounds to arrest him?
A. Correct.
Q. You put him back in the car?
A. Correct.
Q. 'Cause you wanted to investigate him for the seatbelt violation when he was in the car?
A. Correct.
Q. Right, but you're not obligated to identify me while I'm sitting in the vehicle.
A. No, but given the constraints of me standing there with three people in a car, the easiest way to do that was to have the person sit in the –- seated in the car. That was, that's the easiest way for me to do it and I would continue to do it because I have my eyes on three people as opposed to two sets of, or two people in the car and one outside the car.
Q. You didn't have to touch him at all, you could have just said get back in the car?
A. I could have.
Q. Why didn't you?
A. It just so happened that the, the tactile response or the action, it assists with the, the, um, words that I was using.
Q. Well, you don't know what his intention was. He didn't even, even have a chance to get out?
A. He had, as you pointed out, a minute in between me getting out of the car and me approaching the car to do that.
Q. Yes. Right.
A. This is something I had to consider in, in his attempts to get out of the vehicle and hand me identification. He had that minute, if that was his intention to do that. That's something I had to consider as I'm approaching the vehicle.
Q. But I want you to go to page 86 of your notes and just read verbatim, um, what you recorded as what Mr. Thompson, ah, did, ah, in terms of swinging.
A. Would you like that from the top of the page?
Q. Any place that you can find it.
A. "Takes right hand and swings around towards me."
Q. "Towards me"?
A. Yeah.
Q. It doesn't say anything about striking you in the face, does it?
A. Specifically, no.
Q. Did you swing at him at all?
A. I only employed distractionary strikes to his groin and leg area once we were on the ground.
Mr. Thompson was charged with assaulting P.C. Crawford.
Defence Submissions on Assault Charge
Mr. Thompson submits that:
(1) On a consideration of all the evidence, this was not a seatbelt stop but, rather, an illegal roadside shake-down of 3 young black males, in an older model car; and
(2) Even if it was a seatbelt stop, the Highway Traffic Act, only authorized the officer to ask Mr. Thompson for identification (see HTA s. 106(8.1)). It did not authorize him to place his hand on Mr. Thompson and push or guide him back in the car. It may be that an officer can in some circumstances arrest or otherwise apply force to a seatbelt violator who refuses to produce identification or attempts to flee; however, Mr. Thompson did neither of these prior to the aforesaid application of force.
Mr. Thompson further submits that where an excess of authority entails and authorized application of force to a citizen, it is an assault at law (see Criminal Code Section 34(1)). A citizen is entitled to use reasonable force to defend against an unlawful assault (see Criminal Code s. 37(1)), provided no excessive force is used.
Mr. Thompson argues that Officer Crawford committed an assault when he pushed or guided Mr. Thompson back into the car. Mr. Thompson was entitled to forcibly resist this application of force.
Because this was a vehicle shake-down as opposed to a legitimate HTA stop, Mr. Thompson's right to be free from an arbitrary detention under s. 9 of the Charter was violated.
Q. All right, and you eventually are successful in throwing him to the ground?
A. Ah, I grab him and I'm on top of him and eventually I do attempt to roll over. He has a hold of me, I have a hold of him and ultimately, he pulls out of the bottom of his jacket and runs.
Q. Um, and –- but before that happens, um, you employ what are euphemistically known as distractionary blows, which I take it means you punch him a bunch of times?
A. I did. At that point, I attempted to punch him in the legs?
Q. And elsewhere?
A. In the groin area, that's all that was available to me.
A. When he got out of the car and I, and I grabbed him or touched his shoulder and then grabbed him, at that point the odour was coming from him. Coming from that door where he was sitting, seated, and it was coming from him. There was no doubt that with, with him, um, having his hand in his pocket, it was strong enough from him as, as I put my hand on him, that it was coming from him.
Q. You open the door of a car and there's smoke in it, you can smell smoke, right?
A. That'd be correct, but the smoke was coming out of the car. As he came towards me, I could smell it on him.
Q. If there's a lingering smell in the car and you open the door, isn't it going to come out?
A. Eventually.
Q. Well, it's going to come out when the door opens and the air can escape, right?
A. Yes, the, the, the way that he came out and the smell coming from him, to me, I was satisfied that he had, um, –- continuing with what he was doing with his pockets.
Q. You were satisfied the odour was coming from what he had in his pocket?
A. I was satisfied that he was in possession of marijuana.
A. He pulled out of the jacket and ran.
Q. Leaving you with the, with the jacket in the headlock, if you like?
A. The jacket was still there when he fled.
A. He punched me once and then when we went to the ground, ah, he put me in a headlock and I simultaneously put him in one. But he did not punch me while we were on the ground.
Q. So he had you in a headlock on the ground, I don't think we heard that before.
A. I believe I stated that yesterday, that he had me in a headlock and I had him in a headlock.
RE-EXAMINATION BY MR. SIEW
Q. Officer Crawford, defence counsel specifically suggested to you that, in his cross-examination, that you had about eight seconds to, ah, to tell Mr. Thompson that he was under arrest, do you recall my friend's suggesting that to you?
A. Yes.
Q. So, I'm going to ask you, when did you make the decision to arrest in, in terms of the incident? Exactly when did you do that? And my follow up question, to bring it back to my friend's question is, and then how long after that did, did it take for you to start saying "Get out, you're under...."? So, –- sorry, "Get out, you're...."
A. As I placed my hand on his shoulder initially, and, um, he began to sit back in the vehicle, um, that's when I made my observations to where his hand placement were in relation to his jacket and, at that point, I had, um -- and the odour that was there, then I went to grab him with both hands at it was at that point that I was planning to take physical control of him outside the vehicle and place him under arrest. As he's getting out, that's when I did say, "Get out, you're...", and I was unable to, ah, finish that statement, ah, because, ah, as the video indicated, um, as he's coming out of the vehicle, it's, it's a continuous motion of me attempting to gain physical control and that transitioning into the physical altercation.
Q. So how many seconds between you thinking in your mind I'm going to arrest this person to where it's when you say "Get out, you're ..."?
A. I don't, I don't know how many seconds it is because it's, it's a seamless transition as it's happening. There's no, there's no stopwatch that I can see that I can say it's one second, two seconds. What it feels like as I'm processing this and, um, as I attempt to gain control and, um ....
THE LAW
Charter Rights and Search and Seizure
Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. Our courts have become fundamentally interested in how evidence is collected, and what the police may be thinking when gathered (see e.g. R. v. Caslake, [1998], 1 S.C.R. 51). A search incident to arrest must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. If the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested: R. v. Caslake, supra.
Crown's Position
The Crown submits:
that P.C. Crawford's arrest of Mr. Thompson was based on reasonable probable grounds, and therefore fully compliant with section 8 of the Charter;
that the recovery of the marijuana in Mr. Thompson's jacket was justified under the doctrine of search incident to arrest;
Mr. Thompson reacted to the arrest by punching Constable Crawford in the face, an application of force without consent against a police officer in the lawful execution of this duty.
Charter Remedies
The Charter has empowered our courts to remedy constitutional transgressions. Where search and seizure is concerned, the chief remedial mechanism is s. 24(2) of the Charter, which permits the exclusion of evidence where its admission would bring the administration of justice into disrepute.
Decisions from the Supreme Court have required the police to substantially modify their practices in order to adapt to new constitutional standards (see e.g. R. v. Feeney, [1997] 2 S.C.R. 13) dealing with the power to effect arrests in dwelling houses). The Charter continues to identify permissible boundaries of state action in a criminal context.
Definition of Search and Seizure
Section 8 of the Charter is triggered where it is established that a "search" or a "seizure" has taken place. A search or seizure occurs whenever the state has interfered with a citizens' reasonably held expectation of privacy. S. 8 is concerned with non-consensual invasions of citizens' privacy at the hands of the state.
If a search is reasonable under s. 8, it will invariably comport with the principles of fundamental justice under s. 7. The analysis of a constitutional problem involving a search or seizure "begins and ends with s.8". (See e.g. R. v. F.(S.) (2000), 5627 (ONCA); and R. v. Mills, [1999] 3 S.C.R. 668).
Reasonable Expectation of Privacy
An accused must establish that his or her personal right to privacy has been infringed. He or she cannot assert s. 8 in circumstances where no expectation of privacy may reasonably exist. A preliminary onus rests on the accused to establish, on the totality of the circumstances, that the conduct of the state impacted on their objectively reasonable privacy interests.
Section 8 of the Charter sets out a constitutional edict that state interference with citizens' privacy interests must be reasonable.
As Lamer J., as he then was, stated in R. v. Collins, [1987] 1 S.C.R. 265: "a search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which it was carried out is reasonable".
Warrantless Search
There is a warrantless search in this case. The case law states that a warrantless search is prima facie unreasonable, and the Crown bears the burden of proving that it was reasonable, on a balance of probabilities. The Crown's position is that the search was conducted pursuant to a valid search incident to arrest. Was the arrest lawful or not? Therefore, the burden now shifts to defence to prove, on a balance of probabilities that the arrest did not comply with section 9 of the Charter. The crown submits that the defence has not met its burden in proving that the arrest and detention was unlawful.
Absent a warrant, a police search or seizure is presumed to be unreasonable, subject to rebuttal by the prosecution. By way of contrast, where a search is carried out by state agents for regulatory or administrative purposes, a more flexible standard may apply. (See e.g. R. v. M. (M.R.), [1998] 3 S.C.R. 393).
Police Powers and Detention
The police are empowered, at common law, to search as an incident to a lawful arrest. Was the initial stop of the vehicle a valid detention under s. 9 of the Charter? The Crown submits that the accused was under investigation for a Highway Traffic Act violation for not wearing his seatbelt. See Section 106(3) of the Highway Traffic Act of Ontario. The Crown further submits that Mr. Thompson was detained pursuant to the Highway Traffic Act as he was bound to identify himself (Section 106(8.2)). The search must be conducted for a valid purpose and must be carried out in a reasonable and proportionate fashion. An officer need not have reasonable grounds to believe evidence will be found. However, there must be an articulable nexus between the nature of the search and the offence for which the detainee was arrested. (see R. v. Caslake, supra).
Investigative Detention
An investigative detention must be based on "reasonable suspicion" or "reasonable grounds to detain". The power to search incident to investigative detention is highly circumscribed. It is not triggered automatically upon detention. Moreover, it is restricted to searches that are designed to protect police officers for public safety, and will not extend to authorize pure evidence-seeking missions. (See e.g. R. v. Mann, 2004 SCC 52, 2004 S.C.C. 52).
Right to Refuse Identification
Generally, a person cannot then be convicted of obstructing a police officer in the execution of duty for simply refusing to say or establish who he or she is when asked to do so: Rice v. Connolly, [1966] 2 All E.R. 649 (Q.B.). The law in this respect is no different after Mann, supra. Iacobucci J. noted that "[a]bsent a law to the contrary, individuals are free to do as they please" ([paragraph] 15). He further stated that recognition of a police power to conduct investigative detentions "does not impose an obligation on the detained individual to answer questions posed by the police" ([paragraph] 45).
Mr. Thompson did not refuse to provide his identity to the police. The authorities recognize a distinction between the absence of a legal obligation to respond to police questioning and the existence of a legal obligation to refrain from providing the police with false information. As Parker C.J. explained in Rice v. Connolly, at 652:
It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is that right of the individual to refuse to answer questions put to him by persons in authority, and a refusal to accompany those in authority to any particular place, short, of course, of arrest.
Exigent Circumstances
In some cases, the police possess the requisite grounds to obtain a warrant. Due to circumstances of exigency, it may be impracticable for them to do so. The doctrine of exigent circumstances been judicially recognized at common law. (See e.g. R. v. Godoy; R. v. Golub and R. v. Nicholls)
Exigent circumstances tend to arise where prompt police action is necessary to protect human life or safety; and where prompt police action is necessary to prevent the imminent loss, removal, destruction or disappearance of evidence. The police have been afforded greater latitude where human life or safety is as stake, and are permitted to act on the basis of reasonable suspicion. By way of contrast, where the motivating concern is preservation of evidence, the higher standard of reasonable grounds to believe will usually apply.
Hunter v. Southam and Privacy Rights
The seminal judgment in Hunter v. Southam was instrumental in defining the parameters of the constitutional protections afforded by s.8. Dickson J., (as he then was), imported into Canadian law the American axiom that a constitutional document "protects people not places". The protection against unreasonable search or seizure was not linked to matters of property or trespass. It was to be construed as a broader, overarching right to privacy - "the right to be let alone by other people". The purpose of s.8 was to protect individuals from unjustified state intrusions upon their privacy. It was essential that the section be interpreted broadly in order to achieve that end.
Standing to Challenge Search
An accused may challenge the propriety of a police search or seizure if state conduct interfered with his or her privacy interests. The governing principles were set out by Cory J. in the 1996 case of R. v. Edwards, [1996] 1 S.C.R. 128:
A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed.
S. 8 is a personal right. It protects people and not places.
The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated.
As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably.
A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:
(i) presence at the time of the search;
(ii) possession or control of the property or the place searched;
(iii) ownership of the property or place;
(iv) historical use of the property or item;
(v) the ability to regulate access, including the right to admit or exclude others from the place;
(vi) the existence of a subjective expectation of privacy; and
(vii) the objective reasonableness of the expectation.
If an accused establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.
Search Incident to Arrest
Again, the power of search incident to arrest is well entrenched in the common law (see e.g. Cloutier v. Langois, [1990] 1 S.C.R. 158). Three conditions must be satisfied in order for a search to be validly undertaken incident to an arrest:
The arrest must be lawful;
There must be a logical nexus between the nature of the search and the offence for which the citizen was arrested; and
The search must be carried out in a reasonable manner.
The power to search can extend to the immediate surroundings of the arrestee. If a motorist is either in or near a vehicle at the time of arrest, that vehicle may fall within the geographical ambit of the search incident to arrest power (see e.g. R. v. Speid [1991] O.J. No. 1558 (Ont.C.A.); and R. v. Lim (No.2) (1990), 1 C.R.R. (2d) 136 (Ont.H.C.))
Importantly, there must be a logical nexus between the nature of the search and the arrest. As Chief Justice Lamer put it: "...there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested". Thus, an arrest on outstanding traffic fines will not justify a search of the trunk of the car Doherty J.A., writing for the Court below, in R. v. Belnavis, [1997] 3 S.C.R. 341. See also R. v. Greffe, [1990] 1 S.C.R. 755.
Subjective and Objective Components
In Caslake, supra the majority insisted that there is both a subjective and objective component to the nexus requirement. In order for the action to be justified as incident to arrest, the searching officer must subjectively advert to the justification for the search; and the justification must be objectively reasonable in all the circumstances. On the facts of Caslake, it was the subjective requirement that proved to be fatal under s. 8. On the officer's own evidence, he had searched the vehicle solely to inventory its contents, rather than to look for evidence. On this basis alone, the search fell outside of the scope of the common law power, notwithstanding that the officer could have conducted the search as an incident of the motorists' arrest.
Pretextual Stops and Subjective Intentions
It is clear that a stop or detention for traffic violations is constitutionally permissible according to the Supreme Court of the United States. In Whren v. United States 517 U.S. 806 (1996) at p. 813, the court noted their unwillingness to entertain Fourth Amendment challenges based on actual motivations of individual officers and held unanimously that "subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis". The court in Whren, at pp. 812-813, said, "a traffic violation arrest ... [will] not be rendered invalid by the fact that it was a mere pretext for a narcotics search." Thus, the ulterior motives of officers to stop a vehicle for a traffic violation are irrelevant so long as there is probable cause for the traffic stop. The standard to be applied is whether a police officer, acting reasonably, would have made the automobile stop for the reasons given. Whren does not allow suppression of evidence obtained by a search on the ground that the traffic violation stop was pretextual and made for the purpose of searching the vehicle for evidence of crime.
Analysis of the Stop
In the present case, in the time between the time of the actual vehicle stop and the "arrest" was the officer dealing with a traffic stop violation only and the investigation then converted into a drug investigation? Were there objective grounds to arrest? Was there ample evidence to conclude that the officer had a subjectively reasonable ground for the belief that the accused was in possession of drugs?
Subjective Belief as a Question of Fact
Again, in Cloutier v. Langlois, supra at 179-182, the Supreme Court held that a police officer has a common law right to search an arrested person incidental to that arrest. The officer does not require additional reasonable grounds, as the authority for the search is derived from the lawful arrest. This right to search includes a search of the surroundings and the seizure of anything found there.
Again, in R. v. Caslake, supra, [1998] 1 S.C.R. 51 the Supreme Court held this common law right also authorizes the warrantless search of a vehicle incident to a lawful arrest. The Court held:
… Automobiles are legitimately the objects of search incident to arrest, as they attract no heightened expectation of privacy that would justify an exemption from the usual common law principles ….
If the arrest was lawful, the search was lawfully incident to the arrest.
Should the Evidence be Excluded Under S. 24(2)?
In Grant, 2009 SCC 32, 2009 S.C.C. 32 the Supreme Court held that derivative evidence is, "physical evidence discovered as a result of an unlawfully obtained statement". If there is no Charter breach and even a cursory examination of s. 24(2) may be necessary. There is arguably, a lower expectation of privacy with respect to a vehicle than in a home since a driver knows that he may be stopped for reasons of highway safety (See R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 30).
Mr. Thompson, as we know, was a passenger. Does this make a difference to the dignity or personal integrity of the accused?
Society's Interest
In Grant the Court said:
[81] … exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.
[83] … The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.
[126] … in determining whether admission of the derivative evidence would bring the administration into disrepute relates to society's interest in having the case adjudicated on its merits. Since evidence in this category is real or physical, there is usually less concern as to the reliability of the evidence. Thus, the public interest in having a trial adjudicated on its merits will usually favour admission of the derivative evidence.
The drugs found are not derivative evidence. The evidence is real or physical. The reliability of the evidence is therefore unquestioned. Would the exclusion of the drugs in this case impact negatively on the repute of the administration of justice?
Purposes of Search Incident to Arrest
For a search to be truly incidental to arrest, the police must be attempting to achieve some valid purpose connected to the arrest. The three main purposes of search incident to arrest are ensuring the safety of the police and the public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence that can be used at the arrestee's trial: R. v. Caslake, [1998] 1 S.C.R. 51 at para. 9.
The power of search incidental to arrest extends to authorize the search of a motor vehicle driven by an arrested person. The right to search a car incidental to arrest and the scope of that search will depend [on] a number of factors, including the location of the motor vehicle in relation to the place of arrest. Further, delay and distance from the place of arrest do not preclude a search from being incidental to arrest: Caslake at paras. 23-25.
Summary of Caslake Principles
In R. v. Majedi, 2009 BCCA 276, Mr. Justice Chiasson provided a useful summary of the propositions set out in Caslake:
Officers undertaking a search incidental to arrest do not require reasonable and probable grounds; a lawful arrest provides that foundation and the right to search derives from it (paras. 13 and 17);
The right to search does not arise out of a reduced expectation of privacy of the arrested person, but flows out of the need for the authorities to gain control of the situation and the need to obtain information (para. 17);
A legally unauthorized search to make an inventory is not a valid search incidental to arrest (para. 30);
The three main purposes of a search incidental to arrest are: one, to ensure the safety of the police and the public; two, to protect evidence; three, to discover evidence (para. 19);
The categories of legitimate purposes are not closed: while the police have considerable leeway, a valid purpose is required that must be "truly incidental" to the arrest (paras. 10, 20 and 25);
If the justification for the search is to find evidence, there must be a reasonable prospect the evidence will relate to the offence for which the person has been arrested (para. 22);
The police undertaking a search incidental to arrest subjectively must have a valid purpose in mind, the reasonableness of which must be considered objectively (paras. 19, 25)
Burden of Proof
As articulated in R. v. Collins, [1987] 1 S.C.R. 265 at 278, when a search has been conducted without a warrant the Crown has the onus of establishing, on a balance of probabilities, that it was carried out in a lawful and reasonable manner. See further R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851 at para. 21.
The Caslake Facts
Mr. Caslake's vehicle was stopped on a highway outside of Gimli, Manitoba, by a natural resources officer who had reasonable grounds to believe that he had just left a garbage bag containing several pounds of marihuana in some tall grass off the roadway. Police officers were called, took custody of Mr. Caslake, and had his vehicle towed to a garage across from their detachment. Six hours later, an officer went to the garage and searched the vehicle, finding cash and a small quantity of cocaine. That officer testified that he searched the vehicle solely for the purpose of taking an inventory of its contents, as required by police policy.
Chief Justice Lamer held that the search of the vehicle did not fall within the common-law power of search incidental to arrest because the officer who conducted it did so for a purpose unrelated to Mr. Caslake's arrest. In commenting on the timing of the search, the Chief Justice stated:
I would note that the six-hour delay in searching the vehicle is not, in and of itself, problematic in the case at bar. There were only two police officers in Gimli, and the regular policing commitments of one of them and the investigating matters undertaken by the other demonstrate that there is a reasonable explanation for the delay in searching the car. However, the delay further reinforces Officer Boyle's testimony that he was not searching for evidence, but simply conducting an "inventory search".
Police Powers and Traffic Offences
Police officers are entitled to arrest traffic offenders when it is necessary to establish their identity. See R. v. Moore, [1979] 1 S.C.R. 195. The law is also clear that the police are entitled to search a vehicle for identifying documentation when it is not produced by a driver who is being investigated for an offence. See R. v. Belnavis, [1997] 3 S.C.R. 341, 118 C.C.C. (3d) 405 at para. 28. In the case presently before the Court the officer's chose not to investigate the driver.
There is no question that Constable Boyce properly stopped the vehicle for a speeding violation. Once the car had been pulled over and the driver said she did not have any ownership information, the officer had every right to look for documents pertaining to the ownership or registration of the vehicle. Similarly, he had the right to open the back door and look into the rear of the vehicle for safety reasons and to speak with the passenger in the back seat. See R. v. Mellenthin, [1992] 3 S.C.R. 615, at p. 623.
Charter Remedies and Burden of Proof
The Supreme Court recently noted a Charter claimant has a burden of proof and that there must be shown to be a link between the proposed remedy and the judicial process: see R. v. Nixon, 2011 SCC 34.
In R. v. Cornell, 2010 SCC 31, [2010] 2 SCR 142 a squad of police officers with Nomex masks, and all in "standard police blues, body armor, balaclava, and the helmet" invaded a private residence to search for drugs. They were not arresting a guilty person who had been fleeing and was physically resisting arrest. In Cornell, at paras. 23 and 24, Cromwell J said that the police action was not to be "viewed "through the 'lens of hindsight'". In Cornell, Cromwell J reminded that the onus rests upon a Charter claimant to prove the Charter breach (para. 17) and "the trial judge's assessment of the evidence and findings of fact must be accorded substantial deference on appellate review" (para. 23).
Section 24(1) Remedies
S. 24(1) of the Charter requires that the competent court may grant "such remedy as the court considers just and appropriate in the circumstances". In order to determine what is "just and appropriate", a court should consider, among other things, what is the objective of the remedy and whether or not the proposed disposition in a judicially logical manner remedies the damage done to the Charter guaranteed right or freedom. Charron J in Nixon pointed out the limitations even within the abuse of process doctrine:
Thus, in defining what constitutes a violation, it is important to recall what kind of harm the common law doctrine of abuse of process was intended to address and, in turn, why this degree of harm called for a stay of proceedings as the appropriate remedy. In other words, while s. 24(1) of the Charter allows for a wide range of remedies, this does not mean that abuse of process can be made out by demonstrating a lesser degree of harm, either to the accused's fair trial interests or to the integrity of the justice system. Achieving the appropriate balance between societal and individual concerns defines the essential character of abuse of process.
Definition of Search and Seizure
An inspection is a search, and a taking is a seizure, where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access (See R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 18; R. v. Evans, [1996] 1 S.C.R. 8, at para. 11; R. v. Borden, [1994] 3 S.C.R. 145, at p. 160).
Privacy is a matter of reasonable expectations. An expectation of privacy will attract Charter protection if reasonable and informed people in the position of the accused would expect privacy. (See R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at paras. 14-15).
If the claimant has a reasonable expectation of privacy, s. 8 is engaged, and the court must then determine whether the search or seizure was reasonable.
Whether Mr. Thompson had a reasonable expectation of privacy arguably depends on the "totality of the circumstances". (R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45)
Racial Disparities
The court does I do not have to find that race is the only or a major factor leading to the discriminatory conduct. It also did not need to find that there was an intention to discriminate, as racial stereotyping will often stem from unconscious biases or beliefs. In determining whether the inference of racial discrimination is more probable than the explanations offered by the officer, I must be mindful of the nature of racial discrimination as it is understood today and that it will often be the product of learned attitudes and biases and often operates on an unconscious level.
Courts in Canada have accepted that racial profiling by police occurs in Canada and have indicated their willingness to scrutinize seemingly "neutral" police behaviour to assess whether it falls within the phenomenon of racial profiling. In R. v. Brown (2003), 64 O.R. (3) 161 (Ont. CA) at para. 9, Morden J.A. stated that the Crown's concession that the phenomenon of racial profiling existed was "a responsible position to take because … this conclusion is supported by significant social science research". In Peart v. Peel Regional Police Service Board, [2006] O.J. No. 4456 (Ont. CA), Doherty J.A. stated the "racial profiling occurs and is a day-to-day reality in the lives of those minorities affected by it."
As was said in Peart v. Peel Regional Police Services Board, [2006] O.J. No. 4457 (C.A.) by Doherty J.A., at para. 95:
Racial profiling can seldom be proved by direct evidence. Rather, it must be inferred from the circumstances surrounding the police action that is said to be the product of racial profiling.
The surrounding circumstances are important to the analysis and clear findings. The conclusion that discrimination has occurred must be based on evidence on the facts of the individual case. Under our system of laws and procedure, the burden of proof remains on the person, who advances an allegation of discrimination, to establish it. As Doherty J.A. also said in Peart, at para. 139:
In civil proceedings, the burden of persuasion in respect of a fact in issue is generally on the party alleging that fact. The appellants claim that they were the victims of racial profiling at the hands of the police and demand compensation. Applying the normal rule, the appellants must bear the burden of proving racial profiling on the balance of probabilities: [citations omitted]
Suspicion about a person's motivations is an insufficient basis to reach such a conclusion.
There must be an evidentiary foundation for such a finding and the evidence that forms that foundation must be set out with clarity.
The risk that arises from reliance on generalizations or preconceptions of the type that are raised when reference is made to unconscious acts was discussed by the Supreme Court of Canada in R. v. R.D.S., [1997] 3 S.C.R. 484, a case that involved some comments that had been made by a judge, in her reasons for acquitting a young man, about racial attitudes of police and how they might have affected the evidence of police officers. In expressing concerns about the use of generalized comments in the course of reasons, Mr. Justice Cory said, at para. 133:
If there is no evidence linking the generalization to the particular witness, these situations might leave the judge open to allegations of bias on the basis that the credibility of the individual witness was prejudged according to stereotypical generalizations. This does not mean that the particular generalization – that police officers have historically discriminated against visible minorities or that women have historically been abused by men -- is not true, or is without foundation. The difficulty is that reasonable and informed people may perceive that the judge has used this information as a basis for assessing credibility instead of making a genuine evaluation of the evidence of the particular witness' credibility. As a general rule, judges should avoid placing themselves in this position.
In R. v. Brown (2003), 173 C.C.C. (3d) 23, Morden J.A. for the Ontario Court of Appeal said at page 28:
There is no dispute about what racial profiling means. In its factum, the appellant defined it compendiously: "Racial profiling involves the targeting of individual members of a particular racial group, on the basis of the supposed criminal propensity of the entire group" and then quoted a longer definition offered by the African Canadian Legal Clinic in an earlier case, R. v. Richards (1999), 26 C.R. (5th) 286 (Ont. C.A.), as set forth in the reasons of Rosenberg J.A. at p. 295:
Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general propensity of an entire racial group.
Racial profiling is an attitude that may be consciously or unconsciously held. As Morden J.A. says at paragraph 8 of Brown, supra, "…the police officer need not be an overt racist. His or her conduct may be based on subconscious stereotyping."
However, although Brown involves facts that may have amounted to racial profiling by the officer, that case is not essentially about what constitutes racial profiling. It is rather an analysis of whether the trial judge's conduct raised in the mind of an informed, objective observer, a reasonable apprehension of bias, as a result of the manner in which he dealt with the issue of racial profiling.
The officer stated that had articulable cause to stop the vehicle in question. He had observed an HTA infraction. His explanations for "running the plate", I must find were not reasonable. I find that his pulling up beside the vehicle before stopping it and his possible observation of the race of the occupants could be evidence of racial profiling.
Pretext Stops
A pretext stop is defined in Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1 (Ont. C.A.) by Doherty J.A. as the use by the police of legitimate powers to stop a vehicle (there a violation of s. 216(1) of the Highway Traffic Act) but in doing so they have an additional improper purpose. At paragraph 39 he says:
When I refer to improper police purposes I include purposes which are illegal, purposes which involve the infringement of a person's constitutional rights and purposes which have nothing to do with the execution of a police officer's public duty. Officers who stop persons intending to conduct unauthorized searches, or who select persons to be stopped based on their sex or colour, or who stop someone to vent their personal animosity toward that person, all act for an improper purpose.
The officer observed an HTA infraction. He stopped the car and did not speak first to the person he had observed committing the infraction, the logical and proper procedure to follow. A physical altercation followed which was preceded by the officer pushing the rear seat passenger back into the vehicle as he was attempting to exit it.
Marijuana Odour as Grounds for Arrest
The smell alone of marijuana emanating from the car may be sufficient grounds to arrest the occupants for possession of the drug. In R. v. Polashek (1999), 134 C.C.C. (3d) 187 (Ont. C.A.) the court found an arrest for possession of narcotics based solely on a police officer smelling an odour of marijuana coming from the appellant's vehicle was not reasonable and probable grounds for the arrest. At paragraph 13, Rosenberg J.A. says, "The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer." However, at paragraph 14 he acknowledges:
On the other hand, 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. The circumstances under which the olfactory observation was made will determine the matter. It may be that some officers through experience or training can convince the trial judge that they possess sufficient expertise that their opinion of present possession can be relied upon…
The danger Rosenberg J.A. sees in allowing the use of the sense of smell alone is the possibility of mistake or fabrication in circumstances where the officer's decision is unreviewable.
Counsel for the respondent argued that it was sufficient to withstand an allegation of racial discrimination or racial profiling if there was an "articulable reason" for the stop.
Justice O'Connor, in making a determination in a criminal case as to whether the accused's constitutional rights had been infringed, relied upon the decision of the Ontario Court of Appeal in Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1, in which a "pretext stop" is defined as "the use by the police of legitimate powers to stop a vehicle (. . .) but in doing so they have an additional improper purpose", which can include selecting persons to be stopped based on their colour. In other words, even if the police have an "articulable reason" to stop a person on the basis of the exercise of their legitimate powers, this will not preclude a finding of racial discrimination or racial profiling, for example, if the police select an individual from a particular racialized group to be stopped while not stopping others in similar circumstances or if the police have an ulterior motive in stopping the person premised upon assumptions made about that person because of the person's race or colour.
Use of Force by Police
Police officers are entitled to use force in the course of the execution of their duties where it is necessary to do so. Capturing a fleeing suspect, preventing the continuation of a crime and protecting the public from an imminent danger are examples of the type of situations where the use of force by a peace officer may become necessary.
However, the authority of a peace officer to use force in the course of his/her duties is limited by law. Any force used by a peace officer is justified only where the officer acts on reasonable grounds and uses only as much force as is necessary for the purpose (Section 25(1), Criminal Code of Canada).
While our society places trust in peace officers to act reasonably in any given situation, excessive use of force is not acceptable. In its decision in R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, the Supreme Court addressed the manner in which a sentencing judge is to assess the effect of excessive use of force by police officers on the determination of sentence for an offender who, although the victim of excessive use of force by the police, must still be sentenced for the offences before the Court.
Justice Lebel, in R. v. Nasogaluak, supra, summarizes the general principles relating to the assessment of the degree of force used by police officers. He concludes that "the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness". See Nasogaluak at paragraph 32.
After the fact assessments of the reasonableness of the amount of force used do not require the officers involved in what are often dynamic and fluid situations to measure the degree of force used with nicety. In para. 35 of R. v. Nasogaluak, supra, it is noted that:
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):
In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. (Nasogaluak at paragraph 35).
I must find that the officer's actions taken to remove Mr. Thompson from the vehicle were excessive. The force used was not in my opinion, necessary, reasonable and proportional.
Police as Officers of the Court
Police officers, as officials discharging public duties, occupy a special position of trust in the community. See inter alia R. v. LeBlanc (2003), 2003 NBCA 75, 180 C.C.C. (3d) 265 (N.B.C.A.) at para. 32; R. v. McClure (1957), 118 C.C.C. (3d) 192 (Man. C.A.) at 200; United States v. Rehal, 940 F. 2d 1, 5 (1st Cir. 1991). "[A] heavy trust and responsibility is placed in the hands of those holding public office or employ": R. v. Berntson (2000), 2000 SKCA 47, 145 C.C.C. (3d) 1 (Sask. C.A.) at para. 24 (aff'd 2001 SCC 9, [2001] 1 S.C.R. 365, at para. 2).
Individuals working in the justice system "owe a duty to the public to uphold the values of that system" (R. v. Feeney et al. (2008), 2008 ONCA 756, 238 C.C.C. (3d) 49 (Ont. C.A.) at para. 5) with the administration of justice "depend[ant] on the fidelity and honesty of the police": R. v. McClure, supra, at 200.
Undoubtedly, policing is a challenging line of work as observed by Murray CJ. in Shortt v. The Commissioner of an Garda Síochána & others, [2007] IESC 9 at p. 3:
Exceptional or spectacular successes in combating crime are usually well publicised but on a day to day basis the individual Garda member invariably works unpublicised within all sections of the community but particularly on the margins of society where they have to confront determined criminals willing to use every means at their disposal, including wanton violence, to further their ends. They are the first line of defence against hardened criminals who have not the slightest regard for the interests of the individual citizen be they young or old. On a daily basis, or rather on a nightly basis, they may have to confront, in a whole range of situations from street crime to domestic violence, individuals, drunk or otherwise, who are hostile or offensive towards them. Its members in these difficult situations traditionally exercise their powers with discipline and restraint.
There are also a myriad of situations in which the Garda member must undertake, as a matter of duty, difficult and personally painful tasks whether it be the recovery and handling of a decomposed body from a river or premises, removing a mutilated body of a person or child from a crashed motorcar or informing a parent or spouse of the death of a loved one. They also serve the community in what might be called a more positive role such as by way their programme of support for the victims of crime, the Garda Primary Schools Programme, the Youth Diversion Project which has as its aim the rehabilitation of young offenders, support for neighbourhood watch schemes, to name but some of the forces' direct community projects.
While the rule of law is a complex concept with many components, one significant feature is that agents of the state must themselves be subject to and obey the law: Hitzig v. Canada (2003), 177 C.C.C. (3d) 449 (Ont. C.A.) at para. 112.
Police Powers and Investigative Detention
There is no serious legal argument to be made regarding the existence of a power by police officers to interfere with members of the public, occasionally causing them delays. The purpose of it could be merely identification, even interview (see for example: R. v. Grant 2009 SCC 32 par. 26 to 28 and R. v. Mann 2004 CSC 52). The extent of it is another question.
Applicable case law accepts that odour alone, depending on the circumstances or with other pieces of evidence could be enough to justify such a brief investigative stop (see e.g. Simpson ONCA, R. v. Polashek ONCA, paragraphs 14 and 21, R. v. Bélanger QCCQ and Archambault v. R. 2009 QCCQ 4631).
Discretionary Power and Racial Disparities
To the extent there is a single cause of racial disparities in the criminal justice system, the culprit is likely discretionary power, who has it and how they use it to administer our laws. Most criminal justice officials have wide latitude to make discretionary decisions that affect everything from whether a person will be stopped, arrested, or searched to discretionary determinations about whether someone will be charged with a serious offence, offered a plea bargain, detained prior to trial, or placed in a diversion program.
The goal of achieving justice necessitates criminal justice officials having flexibility to take into account the special circumstances in a particular case. Thus, discretionary authority is not undesirable when the actors engage in fair, bias-free decision making, applying policies and practices that do not have a disparate impact on minority communities.
If a minority accused such as Mr. Thompson is stopped by the police for a minor traffic infraction and wants to allege that he or she is the victim of racial profiling because the police disproportionately stop and search minority motorists during routine traffic stops, even if true, they might not likely prevail in challenging the actions of the police.
In Whren v. United States, supra 517 U.S. 806 (1996), the defendant, an African-American motorist, claimed that the traffic stop by the police was pretextual, and that the police used their observation of a relatively minor traffic infraction as a basis to stop the accused's vehicle to investigate unrelated crimes. In rejecting the defendant's claim that the traffic stop was an unreasonable seizure in violation of the Fourth Amendment, the Supreme Court held that, as long as the officer has probable cause to believe there is a traffic violation, however minor, the individual officer's "subjective intentions play no role" in the Fourth Amendment analysis. In so doing, the Supreme Court effectively placed the pervasive problem of racial profiling beyond the reach of the Fourth Amendment. Post-Whren, as long as the police officer can point to some minor traffic infraction as the basis for the traffic stop, the actions of the police, at least in the United States, do not appear to violate the Fourth Amendment.
Automobile Stops and Seizure
Does the temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the meaning of s. 8 of the Charter? An automobile stop is subject to the constitutional imperative that it not be "unreasonable" under the circumstances. In general, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.
In the unique context of traffic regulations is probable cause enough. Since, the use of automobiles is so heavily and minutely regulated that total compliance with traffic and safety rules is nearly impossible, a police officer will almost invariably be able to catch any given motorist if not passenger in a technical violation. This may create the temptation to use traffic stops as a means of investigating other legal violations, as to which no probable cause or even articulable suspicion exists. Mr. Thompson who is black may contend that police officers might decide who to stop vehicles based on decidedly impermissible factors, such as the race of the car's occupants.
Reasonableness of Police Conduct
Would a police officer, acting reasonably, would have made the stop for the reason(s) given?
An inventory search" must not be a ruse for a general rummaging in order to discover incriminating evidence. Did the police officer following apparent standardized procedures, act in bad faith for the sole purpose of investigation? Is there evidence that the officer's presence to issue a traffic ticket a pretext to confirm any other previous suspicion about the occupants of the car.
Does an ulterior motive strip an officer of his or her legal justification?
The fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.
The Charter surely prohibits selective enforcement of the law based on considerations such as race. The balancing inherent in any inquiry requires us to weigh the governmental and individual interests implicated in a traffic stop. That balancing does not support investigation of minor traffic infractions as such investigation only minimally advances the government's interest in traffic safety, and may indeed negative it by producing motorist confusion and alarm. Even ordinary traffic stops entail a possibly unsettling show of authority. They at best may interfere with freedom of movement, are inconvenient, and consume time and at worst may create substantial anxiety.
In principle every case, since it turns upon a "reasonableness" determination, involves a balancing of all relevant factors. With rare exceptions the result of that balancing is not in doubt where the search or seizure is based upon probable cause.
Officer Safety and Reasonable Suspicion
Is the reasonableness of a law enforcement officer's belief that his safety or the safety of others is in danger, for the purpose of determining whether the officer, in a routine traffic stop, may order an occupant out of a motor vehicle, measured by whether the "State" is able to make a specific showing that the occupant in question is armed and dangerous? Is the officer able to point to some fact or facts in the totality of the circumstances that would create in his mind a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner than by ordering the occupant to alight from the vehicle?
Does the propriety of the search turned on whether the defendant's behavior, taken in its totality, equal furtive movements that would have given the officer reasonable suspicion to act in the manner he did?
I would articulate any basis for fear for safety by Officer Crawford as merely a hunch, which did not reach the constitutional threshold of reasonable suspicion. To the extent any of the accused movements may have served as a basis for any fear for his safety, the fear should have been allayed when he saw the accused attempting to exit the vehicle. At the time the officer "seized" the accused, he "lacked the requisite suspicion to justify his actions.
Estimating the reasonableness of Officer Crawford's belief is done objectively by asking "whether a reasonably prudent man in the policeman's position would be warranted" in the belief that he or the public was in danger. The officer needs point to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner then by shoving the passenger back into his vehicle and then pulling him out.
Crown's Submissions
The Crown submits that P.C. Crawford was acting in good faith. If the observations made by him were not sufficient for reasonable grounds, they did not fall far short of it. He had to make a decision in dynamic circumstances, without the luxury of the review that a Court can engage in. If his limited experience in drug policing is a factor in finding the lack of grounds, this cannot be held against him.
The amount of marijuana located was not large, but significant according to the Crown. The accused was on a recognizance. Exclusion of the marijuana undermines to a certain extent the Crown's case on the assault police officer charge. There is a significant public interest in the accused standing trial on these four offences according to the Crown.
Arrest Without Reasonable Grounds
Did Officer Crawford have probable cause to arrest and conduct a search incident to arrest even though the officer did not intend to arrest the accused for the offence for which probable cause exists?
Resisting an officer is the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest, lawful detention, or seizure of property or to serve any lawful process or court order when the offender knows or has reason to know that the person arresting, detaining, seizing property, or serving process is acting in his official capacity.
Traffic Stop Justification
For a traffic stop violation to be justified at its inception, an officer should have an objectively reasonable suspicion that some sort of illegal activity occurred or is about to occur, before stopping the vehicle. When an officer observes what he objectively believes is a traffic offence, the decision to stop the vehicle is on the surface reasonable, regardless of the officer's subjective motivation.
However, a pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which the officer does not have the reasonable suspicion necessary to support a stop. The classic example ... occurs when an officer stops a driver for a minor traffic violation in order to investigate a hunch that a driver is engaged in illegal drug activity.
Did the officer's during a traffic stop for a seat belt violation, cross the line?
Circumscribing the power of police to use a seat belt stop as an opportunity to inspect, search, or detain on other grounds, is not acceptable behaviour in this court's opinion. Do our laws permit investigatory behavior based solely on a seatbelt violation unless circumstances arise after the stop that independently provide the officer with reasonable suspicion of other crimes? Surely, probable cause is an objective standard requiring an analysis of the totality of the circumstances and the facts known to the officers at the time of the search. Law enforcement officers' subjective intentions may play no role in ordinary, analysis, and the officers' actual motives for conducting the search are not relevant as long as their actions were objectively reasonable.
Chronological Analysis
We typically analyze searches and seizures involving vehicles and their occupants by starting with the initial police-citizen encounter and progressing through the chronological sequence of events.
One event of possible constitutional significance is the officer's pushing the accused back into his car. This action exacerbated the seizure in progress. Having the passenger exit their vehicle was not in this case a justifiable safety measure, especially in view of the benign nature of the intrusion.
Regulatory Search Powers
A regulatory search power cannot be used to gather evidence for a criminal law investigation. See R. v. Colarusso, [1994] 1 S.C.R. 20. See further R. v. Nolet, 2010 SCC 24, which found no Charter violation in circumstances which mingled a regulatory traffic stop with a criminal investigation. The general proposition remains that the use of regulatory search powers must be kept confined within their own strict limits.
A reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy.
Having regard to the Grant (2009 SCC 32, [2009] 2 S.C.R. 353) test to determine whether the evidence should be excluded, the breach was serious. The accused had no reduced expectation of privacy.
It is again the totality of the circumstances that matters, and in particular that the absence of proof of a subjective expectation of privacy should not on its own be determinative (see for example R. v. Tessling, 2004 SCC 67, para. 42. The subjective expectation of privacy is important but its absence should not be used too quickly to undermine the protection afforded by s. 8 to the values of a free and democratic society.
I find that Officer Crawford violated the accused's section 8. I further find that the evidence should be excluded under section 24(2).
I repeat that whether Mr. Thompson had a reasonable expectation of privacy hinges on the totality of the circumstances. In particular, determination of that question requires: (1) an examination of the subject matter of the alleged search; (2) a determination as to whether the claimant had a direct interest in the subject matter; (3) an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and (4) an assessment as to whether this subjective expectation of privacy was objectively reasonable having regard to the totality of the circumstances.
The Crown seeks to justify the search of the Mr. Thompson as incidental to the decision to pull Mr. Thompson from the vehicle. Is whether securing Mr. Thompson in the car or attempting to do fundamentally altered the nature of ongoing detention, reasonably necessary in the totality of the circumstances?
Common Law Power to Detain
The existence of a general common law power to detain where it is reasonably necessary in the totality of the circumstances was settled in R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725. That case moved our jurisprudence from debating the existence of such a power to considering whether its exercise was reasonably necessary in the circumstances of a particular case. As Abella J., for the majority, observed:
The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk. [Emphasis added; para. 31.]
I do not accept the submission that the officer was concerned about Mr. Thompson walking away.
Without wishing to second-guess the actions of the police and recognizing, as I do, that the police are often required to make split-second decisions in fluid and potentially dangerous situations, I am nonetheless of the view that these actions by officer were not reasonably necessary.
Therefore, I find that the search was unreasonable within the meaning of s. 8 and constituted a breach of Mr. Thompson's Charter right against unreasonable search and seizure.
Section 24(2) Analysis
In light of the s. 8 breach, I turn must to s. 24(2) to determine whether the drugs, inter alia, found should be admitted into evidence.
I must find that the officer was not attempting to respect Mr. Thompson's rights throughout. The search was not performed for reasons of officer safety.
The law surrounding police powers in a detention context is still evolving. In cases where the police act in good faith and without deliberate disregard for or ignorance of Charter rights the seriousness of a breach may be attenuated. See R. v. Cole, 2012 SCC 53, at para. 86.
Waterfield Test
For the purpose of determining whether the police have a common law power to engage in particular conduct that interferes with an individual's liberty, our courts have adopted the two-stage test set out by the English Court of Appeal in R. v. Waterfield, [1963] 3 All E.R. 659, at pp. 660-61.
The Court must determine whether the conduct falls within the general scope of any duty imposed on the police by statute or at common law. Common law police duties include the preservation of the peace, the prevention of crime, and the protection of life and property (See Dedman v. The Queen, [1985] 2 S.C.R. 2). The Court must also consider whether the conduct, albeit within the general scope of a police duty, involved an unjustifiable use of powers associated with that duty. To be justified, "[t]he interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference" (Dedman, at p. 35).
The Waterfield test has been applied to determine the scope of common law police powers. See supra, in Cloutier v. Langlois, [1990] 1 S.C.R. 158, where the Supreme Court recognized a common law power to search incident to a lawful arrest. In Mann, supra the Court recognized a common law power of investigative detention and a power to search incident to that detention. In R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, the Supreme Court recognized a common law power to conduct sniffer-dog searches.
Investigative Detention
An investigative detention is one that occurs in the course of investigation of a crime. The test for investigative detention therefore relates to the nexus between the individual to be detained and a recent or ongoing criminal offence. The goal of the detention must be to ascertain whether the particular individual is implicated in the criminal activity under investigation.
Reasonableness is not the standard for recognizing a common law police power. The detention must be reasonably necessary. There were no reasonable grounds to support the officer's subjective fear that Mr. Thompson might walk away.
There was a much less intrusive alternative available to the officer.
Had there been reasonable grounds to believe that Mr. Thompson might flee, with the result that the detention could be said to be necessary, the overall reasonableness of the decision to detain would then need to be assessed in light of the totality of the circumstances, including the nature and extent of the interference with liberty and the importance of the public purpose served by that interference.
The seriousness of any alleged offence is a relevant consideration. (See R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 31). Where the public purpose served by the interference is the enforcement of a regulatory offence and the interference involves the police assuming complete control over an individual's movements, the balance does generally not favour recognizing a police power.
Warrantless Search Presumption
A search incident to a lawful detention is a warrantless search. Warrantless searches are presumed to be unreasonable unless the Crown can demonstrate on a balance of probabilities that the search was authorized by a reasonable law and carried out in a reasonable manner.
Warrantless searches are presumed to be unreasonable. The onus is on the Crown to lead evidence of the officer's subjective belief that his safety or the safety of others was at risk, and of the reasonable grounds for that belief. Such evidence is lacking from this case.
Section 24(2) Test
When evidence is obtained in a manner that infringes a Charter right, the Court must exclude that evidence if admitting it would bring the administration of justice into disrepute. To determine whether the evidence should be excluded, the 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; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits (Grant, at para. 71).
Seriousness of Charter-Infringing Conduct
The focus is on the gravity of the Charter-infringing state conduct. The more serious the conduct, "the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law" (Grant, at para. 72).
In my view, the conduct at issue in this case was not serious. Officer Crawford knew or ought to have known that he needed reasonable grounds to conduct the search he submits was justified. He acted in ignorance of, well-established Charter standards for police conduct. This favours exclusion (Grant, at paras. 74-75; see also R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494).
To admit the evidence would be to condone the facts of this case.
Truth-Seeking Function
The court "asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion" (Grant, at para. 79). There is no doubt that, in this case, truth-seeking would be better served by the exclusion of the evidence.
Racial Discrimination and Section 24(2)
The applicant argues that the police engaged in racial discrimination that breached the Charter of Rights and Freedoms. Such an argument is based on "racial profiling", similar to the conduct found in Brown, or on a wider formulation of racial discrimination based on the differential treatment of the applicant during the course of the police investigation. In either case, an essential component of such an argument is that the applicant apply under s. 24(2) of the Charter to exclude the evidence implicating the accused.
When making an application under s. 24(2), an accused does not dispute the factual circumstances that make out the elements of the offence, but argues that the evidence tendered to prove the offence should be excluded because it was obtained in breach of the Charter.
There were unusual circumstances that prompted the police officer's conduct in this case and I find that he did not act in good faith. He did not respect Mr. Thompson's rights. The search was not for reasons of officer safety.
Having considered all the circumstances, I find that admitting the evidence would bring the administration of justice into disrepute. It must be excluded. The application is therefore granted. This is primarily because of the seriousness of the Charter-infringing conduct.
CONCLUSION
In conclusion, I find and agree that Mr. Thompson was illegally detained and that his subsequent arrest and search were accordingly unlawful. Officer Crawford did not have sufficient grounds to arrest him and his arrest was accordingly unlawful. He failed to tell Mr. Thompson that he was under arrest and Officer Crawford used excessive and unreasonable force in the arrest and the arrest was therefore unlawful. I do not find Mr. Thompson resisted arrest beyond a reasonable doubt.
Finally, I wish to thank counsel for their thorough arguments.
Released: December 11, 2012
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Justice M.A. Zuker