Court File and Parties

Court File No.: 12-0462-90

County of Renfrew

Date: December 19, 2012

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Matthew Moore

Before: Justice R.G. Selkirk

Heard on: November 14, 2012

Reasons for Judgment released on: December 19, 2012

Counsel:

Timothy S. McCann, for the Crown

Natasha Pappin, for the accused Matthew Moore

Judgment

SELKIRK, J.:

The Charge and Issue

[1] The Crown chose to proceed with only one count alleging possession of Oxycodone arising out of an incident on April 14, 2012. The only issue raised is whether the accused's Charter rights under sections 8, 9 and 10(b) were violated and if so whether the evidence of the pills should be excluded.

Facts

[2] Detective Constable Chartrand was on duty the evening of April 14, 2012. He was in uniform and driving a marked cruiser. He said that mere happenstance brought him to drive past 617 Roy Street. This house was known to him as he had previously investigated, some four or five years ago, three drug related deaths which had occurred there. He knew the owner of the house and had heard, a number of months prior, of rumours that there was on-going drug activity at the house. He also knew the owner did not have a vehicle but saw two vehicles in the driveway. As he drove past he recorded the license plate number of a black Ford vehicle. He radioed the number in to the communication centre and received information back that the vehicle was registered to a Belinda Cook. He was told that Belinda Cook's name was flagged for being Absent Without Leave (AWOL) from the military.

[3] At the intersection of Roy and Bruham Streets he found a spot where he could park, out of sight, but still able to keep an eye on the vehicles at the house. His intention was to wait there for a few minutes and then drive by again to record the plate number off the second vehicle. However, before he could do that the black vehicle backed out onto the street. It paused there for approximately twenty seconds and then drove towards where the Officer was parked. It did so, he thought, slowly, at approximately thirty kilometres an hour. When the vehicle reached the intersection, which was only four doors down from 617 Roy Street, Detective Constable Chartrand made eye contact with the driver and motioned for him to pull over. The accused, who was the driver and alone in the vehicle, pulled around the corner and immediately stopped in the parking lot of a store. The Officer pulled his cruiser in behind the accused's, thereby blocking him in. As the Officer was exiting from his cruiser, he saw the accused exit his vehicle and walk towards the store. The Officer called him back by yelling out to him, "What are you doing" or "Where are you going"? In either case it was intended to direct the accused back to the Officer which it did. The Officer approached and he began questioning the accused. The Officer told the accused that he needed to see his driver's licence, ownership and insurance. As he got closer he realized he knew the driver as a person he had had dealings with a month or so prior. He knew his name and that he had outstanding drug matters. He said he asked to see the accused's identification documents simply to confirm his identity.

[4] He said he did this pursuant to his authority under the Highway Traffic Act which requires drivers to identify themselves upon request by a police officer.

[5] The accused responded that the vehicle was his girlfriend's and that he did not have a driver's licence.

[6] The Officer noted that the accused spoke slowly and deliberately and seemed somewhat disoriented.

[7] The Officer asked him what his girlfriend's name was and the accused responded, "Belinda Cook", which was consistent with the Officer's information as to whom the owner was.

[8] The Officer then asked him for any other identification. The accused reached into his back pocket and pulled out a piece of military identification. When the Officer looked at the identification in the accused's hand he also saw part of a green pill. He believes it is part of an 80 mg. Oxycontin pill. He believes this based on spending eight years in the Ottawa Drug Squad where he conducted numerous investigations into illegal use of Oxycodone.

[9] The Officer immediately arrested the accused for possession of narcotic. He took the accused to the back of the cruiser and told him to empty his pockets on the trunk. The accused did so.

[10] After doing a pat down search, the accused is cuffed and placed in the rear of the cruiser. He is then read his right to counsel at 8:04 p.m. He says he does wish to speak to a lawyer. The Officer tells him that can be done at the station.

[11] The Officer then took the accused's wallet, searched it and found two more Oxycontin pills.

[12] He then looked inside the vehicle and found a piece of a green pill in the cup holder which he seizes.

[13] They leave the scene at 8:25 and arrive at the station at 8:35.

[14] The accused is then strip searched because the Officer "wanted to".

[15] The Officer called duty counsel at 8:50 and the accused spoke to duty counsel at 9:20.

[16] The accused was held for bail court.

Cross-Examination

[17] In cross-examination, the Officer said he checked the plates on the vehicle at 617 Roy Street because he is "paid to do this".

[18] He said he wanted to identify the driver of the vehicle because it was at 617 Roy Street, a possible drug house; the vehicle was being driven by someone other than the registered owner; the vehicle paused after backing out and proceeded slowly to the intersection. He agreed that there could be any number of reasons for the twenty second pause after backing out such as putting a seat belt on or adjusting the radio. He also agreed that going 30 kilometres an hour from 617 Roy Street to the corner, a distance of four houses was perhaps not unusual.

[19] He denied stopping the vehicle because it had been at a possible drug house.

[20] He said he stopped the vehicle and called the driver back because he wanted to talk to him. He did not tell the accused why he had stopped him.

[21] He did not, at any time, ask the accused if he had a prescription for Oxycontin.

[22] He said he blocked his vehicle at no later than 7:55 and that he did not address s.10(a) or 10(b) until 8:04. He then did not provide an opportunity for the accused to speak to counsel until sometime after 8:50 which was 55 minutes after detaining the accused.

[23] He agreed the accused caused no safety concerns and was co-operative with the Officer.

Accused's Arguments

[24] On the above evidence, the accused argues that he was detained and searched without legal justification, that s.10(b) was violated by the delay in providing an opportunity to consult counsel to the accused and that the Officer did not have reasonable and probable grounds to arrest without doing some further investigation.

Analysis

Reasonable and Probable Grounds

[25] I find I can deal quickly with the reasonable and probable grounds argument. I find that based on the Officer's experience as a drug investigator that it is reasonable for him to rely on his ability to recognize Oxycontin when he sees it. He also knew he was dealing with a person who had outstanding drug charges. It would also be unusual for a person to carry a properly prescribed Oxycontin pill in pieces in his back pocket. The accused also demonstrated possible drug use through his slow and deliberate speech and movement. Adding all of the circumstances up, I find that reasonable and probable grounds were established.

Section 10(b) Violation

[26] I would also dismiss the s.10(b) argument. While the Officer was cavalier and less than diligent in providing the accused an opportunity to speak to counsel, he did hold off from questioning the accused or attempting to obtain further evidence except for the permissible search incidental to arrest. These circumstances do not establish a violation and even if it did there is no connection to any evidence tendered.

Section 9 Violation – Arbitrary Detention

[27] With respect to the allegation that s.9 was violated, the first issue raised by the Crown is when did the detention take place? The Crown argues it was not until the accused was arrested. I do not accept this argument. The detention occurred when the Officer made eye-contact and waived the accused over. A reasonable person would consider themselves detained at that point. The accused is obeying a direct command by a police officer. It is a command that one is not free to ignore. I appreciate the accused appeared to attempt to walk away by going towards the store but he is then told, in no uncertain terms, to come back which he did. There can be no argument that the accused, if not detained by signalling him to pull over, is detained when called back by the Officer. The only reasonable conclusion is that one is not free to leave, indeed when the accused tried, the officer stopped him.

[28] These circumstances are consistent with the definition of detention as supplied by Suberu, and Grant from the S.C.C.

[29] The next issue is the nature of the detention. If as the officer testified it was pursuant to the Highway Traffic Act to determine the identity of the driver then it is permitted and constitutional. The arbitrary stops allowed under the Highway Traffic Act, however, are strictly limited to stops for Highway Traffic Act purposes.

[30] Despite the officer's protestations to the contrary, I do not accept that this stop had anything to do with Highway Traffic Act purposes. This was a drug investigation and not related to the Highway Traffic Act. The Officer drove by and recorded the license plates of a vehicle not for Highway Traffic Act purposes but because the vehicle was at a residence that had been associated with drugs. The Officer knew the vehicle did not belong to the home owner so he wanted to know who was there associating with a possible member of the drug underworld. This is why he parked, four doors down, out of sight, hidden so that he could keep surveillance on the house to see who was coming and going from there.

[31] I agree with him that he wanted to know who was driving the vehicle seen leaving there but it was not for Highway Traffic Act reasons. It was to collect police intelligence on the coming and goings of possible illegal drug users.

[32] I find this case is similar to R. v. Simpson, 1993 O.J. 308 in that the accused was detained without either common law or statute based authority. In both cases the accused were detained in order for the officer to obtain police intelligence. In Simpson, the officer said it was for investigative purposes. I find that the stop in this case, was also for a drug investigative purpose. In both cases, it could not be said that either officer had articulable cause that any offence had been committed.

[33] As part of his discussion, Doherty J. cites Cory J. in Ladouceur (1990), 56 C.C.C. (3d) 22 and Mellenthin (1992), 76 C.C.C. (3d) 481. At paragraph 29 of Simpson, the following passage is cited, from Mellenthin:

"Check-stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search.

As noted earlier, check stops infringe the Charter rights against arbitrary detention. They are permitted as means designed to meet the pressing need to prevent the needless death and injury resulting from the dangerous operation of motor vehicles. The rights granted to police to conduct check-stop programs or random stops of motorists should not be extended."

[34] At paragraphs 30 and 31, Justice Doherty writes:

"In my opinion, the "check-stop" cases decide only that stops made for the purposes of enforcing driving related laws and promoting the safe use of motor vehicles are authorized by s. 216(1) of the Highway Traffic Act, even where those stops are random. These cases do not declare that all stops which assist the police in the performance of any of their duties are authorized by s. 216(1) of the Highway Traffic Act.

Once, as in this case, road safety concerns are removed as a basis for the stop, then powers associated with and predicated upon those particular concerns cannot be relied on to legitimize the stop. Where the stop and the detention are unrelated to the operation of the vehicle or other road safety matters, the fact that the target of the detention is in an automobile cannot enhance the police power to detain that individual."

[35] Having found that the Highway Traffic Act does not assist the police in those circumstances the Court goes on to consider the authority contained within the common law and general police duties. At paragraph 58, he writes:

"In my opinion, where an individual is detained by the police in the course of efforts to determine whether that individual is involved in criminal activity being investigated by the police, that detention can only be justified if the detaining officer has some "articulable cause" for the detention."

[36] Neither Detective Constable Chartrand nor the Crown suggested that the officer had articulable cause to detain the accused. It follows that "....the common law police power did not authorize his conduct. It was unlawful." (para. 70).

[37] Without either statutory or common law authority the officer had no lawful basis to detain the accused. It was arbitrary and a violation of s. 9 has been established.

Section 8 Violation – Unreasonable Search

[38] The questioning of the arbitrarily detained person is a search without reasonable grounds. This is consistent with the holdings in Mellenthin, Pinto, Harris as well as Simpson. The demand for identification is an unreasonable search and a violation of s. 8.

Exclusion of Evidence

[39] Whether the evidence is to be excluded is to be determined pursuant to the three step Grant analysis. In this case, I can be brief as the Crown conceded that if the Court found that the detention and search was not justified and that sections 8 and 9 were violated that the evidence should be excluded. I agree. The comments by Doherty J. in Simpson at paragraphs 79 to 81 are appropriate. They read:

"The circumstances presented here are exacerbated by the unconstitutionality of the initial detention. If, as Cory J. indicated, the fruits of an unreasonable search conducted following a lawful stop "should not be admitted", the case for the exclusion of such evidence where the stop is unconstitutional becomes even stronger. There can be no doubt that Constable Wilkin would not have discovered the narcotics in the possession of the appellant but for the double-barrelled infringement of the appellant's constitutional rights.

The seriousness of these constitutional violations is also clear. Constable Wilkin obviously considered that any and all individuals who attended at a residence that the police had any reason to believe might be the site of ongoing criminal activity were subject to detention and questioning by the police. This dangerous and erroneous perception of the reach of police powers must be emphatically rejected. Judicial acquiescence in such conduct by the reception of evidence obtained through that conduct would bring the administration of justice into disrepute.

The evidence should have been excluded."

[40] The Grant analysis would lead to the same result especially with its focus on the long term effect on the administration of justice if the evidence was not excluded. The Courts cannot associate itself with police conduct that has been denounced as unlawful for years by the highest courts.

[41] The fact that the evidence is real, reliable and necessary does not outweigh the seriousness of the violation or the impact the police conduct had on Charter values. The evidence will be excluded. The accused will be found not guilty.

Released: December 19, 2012

The Honourable Mr. Justice R. G. Selkirk