Court File and Parties

Court File No.: Central East - Newmarket 4911-998-13-00262-00

Date: 2013-05-08

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Rohan Nugent

Before: Justice K.P. Wright

Heard on: April 30, 2013

Ruling on Charter Motion released on: May 8, 2013

Counsel:

Mr. K. Dickson — for the Federal Crown

Ms. M. Martin — for the accused Rohan Nugent

WRIGHT, J.:

Introduction

[1] Rohan Nugent comes before this court charged with one count of possession for the purpose of trafficking cocaine and one count of possession for the purpose of trafficking oxycodone on January 10, 2013.

[2] The Crown proceeded by way of indictment and Mr. Nugent elected to have his trial in the Ontario Court of Justice. The trial took one day to complete, with two police witnesses being called by the Crown; defence elected to call no evidence.

[3] Mr. Nugent also brought a Charter application seeking exclusion of evidence obtained as a result of alleged breaches of his rights under Sections 7, 8, 9, 10(b) and 24(2) of the Charter.

[4] The Charter application was, on consent of both parties, heard by way of a blended voir dire in the trial. Both parties invite the Court to convict or acquit Mr. Nugent depending on whether evidence seized is admitted or excluded at the end of the Charter motion.

[5] This is my ruling on the Charter application.

Overview of the Evidence

[6] I will now give a brief overview of the evidence. I will further develop the evidence when necessary in my analysis.

[7] On January 10, 2013, Constable Gorham and Detective Constable De Benedictis were both on duty and attached to the York Regional Police Drug Team.

[8] During the course of their shift and as a result of a crime stoppers tip and confidential human source information they decided to drive by a residence located in a complex at 50 Silver Linden Drive.

[9] At approximately midnight they drove by Unit 67 at 50 Silver Linden Drive. They observed a blue BMW parked directly in the front of this residence running with its headlights on. The interior light of the vehicle was also on, which allowed the officers to see three occupants inside the vehicle; a male driver, a female in the front passenger seat and a male in the rear passenger seat.

[10] The officers drove past the vehicle and parked their unmarked police car in a parking lot approximately 40-50 meters away and began surveillance of the BMW and the occupants.

[11] As they drove by the BMW, both officers recognized the male situated in the rear passenger seat to be Rohan Nugent. Constable Gorham testified that he knew Rohan Nugent to be a cocaine dealer and had dealt with him in February 2010. He also said he believed him to be armed and dangerous. Detective Constable De Benedictis testified that Rohan Nugent is well known to police as a drug dealer. He said he has a history of "drugs and breaches".

[12] Detective Constable De Benedictis testified that he was familiar with and knew the occupant at Unit 67 to be a drug user. He had attended the residence a few weeks prior to arrest the occupant on a warrant and at that time made personal observations of drug paraphernalia consistent with a person using drugs, specifically crack cocaine.

[13] At approximately 12:05 a.m. the officers observed Rohan Nugent exit the BMW and walk towards the entrance of unit 67. At approximately 12:08, Rohan Nugent walked back to the BMW and got into the back seat again, at which point the BMW and occupants drove out of the complex.

[14] From where the officers were situated they could not see the front door of unit 67. They candidly admitted that they could not see if Mr. Nugent entered the unit, nor did they know if anyone was home at the residence. Moreover, because the front doors for units 67 and 66 are side by side, the officers were unable to say precisely which front door Rohan Nugent approached. But they believed him to approach the front door of unit 67.

[15] The officers pulled the BMW over a short distance away. Detective Constable De Benedictis testified that immediately upon approaching the vehicle he announced to all three occupants that they were under investigative detention for a drug investigation. At this point both he and Constable Gorham noticed the smell of marijuana emanating from the vehicle.

[16] Both officers observed Mr. Nugent in the back seat of the vehicle holding on to a makeshift bat and shuffling about. They described him as appearing nervous and his right hand going into the left pocket of his jacket. Detective Constable De Benedictis asked him to put the bat down and he did so.

[17] All occupants were asked to identify themselves. At this point Rohan Nugent verbally identified himself as Lloyd.

[18] The two male occupants were asked to step out of the vehicle, at which point Constable Gorham took control of Rohan Nugent.

[19] When Mr. Nugent stepped out the vehicle Constable Gorham instructed him to keep his hands in sight, at which point Mr. Nugent's pants fell to his knees. After they were pulled back up, Constable Gorham instructed him to keep his hands on the hood of the BMW. It was then that Mr. Nugent reached into the left front pocket of his jacket, which prompted Constable Gorham to call out to his partner fearing that Mr. Nugent had a weapon on him.

[20] Mr. Nugent was handcuffed and Constable Gorham then conducted a cursory pat down search for weapons. He said that he felt a hard object with a sharp pointed end in Mr. Nugent's left front jacket pocket. He believed it to possibly be a knife and reached in and found a pair of scissors, 6 inches in length, and a clear zip lock baggie containing cocaine and oxycodone individually wrapped.

[21] It is admitted that police seized the following from Rohan Nugent as a result of the search:

• 13.7 grams of bulk cocaine
• 0.5 grams of powder cocaine
• 4.5 grams of powder cocaine
• 6.5 pills of oxycodone
• $100.00 of Canadian Currency

[22] At 12:15 a.m. Rohan Nugent was placed under arrest for possession for the purposes of trafficking.

[23] At 12:18 a.m. he was read his rights to counsel.

[24] At 12:19 a.m. he was cautioned.

[25] I should say that both these officers testified in a professional, fair and straightforward manner. I find them both to be highly credible and reliable witnesses.

Analysis

Section 9: Was the Detention Arbitrary?

[26] In this case there is no dispute; the officers stopped the BMW to investigatively detain the occupants for further investigation. This was not a traffic stop. Detective Constable De Benedictis candidly testified that immediately upon approaching the vehicle he announced to all occupants that they were being investigatively detained for a drug investigation.

[27] The question is, did the officers have a sufficient basis to do so?

[28] In this case defence argues that there was no basis beyond a hunch or speculation for the officers to stop the BMW and investigatively detain Rohan Nugent and as such breached his Section 9 rights.

[29] I don't think there can be any dispute that the officers held a subjective belief; the real issue is whether that subjective belief is objectively reasonable.

[30] In R v. Mann, 2004 SCC 52, the Supreme Court of Canada established at paragraph 45 that:

...police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary.

[31] At paragraph 34 of Mann the court added:

The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

[32] In this case the police officers believed they had sufficient grounds to investigatively detain Rohan Nugent. In forming those grounds they relied on the following combination of circumstances:

• The time of night that the incident happened;
• That the occupant of unit 67 was a known drug user and that this was verified by the personal observations of Detective Constable De Benedictis only a few weeks prior to this incident;
• The BMW was parked directly outside of unit 67 – running with the headlights on and three occupants;
• That the interior lights of the vehicle were on, which allowed officers to recognize that the person sitting in the back seat was Rohan Nugent;
• That Rohan Nugent was well known to police as a drug trafficker and had a history of drugs and breaches;
• That both officers were familiar with and had direct dealing with Rohan Nugent in the past;
• That Rohan Nugent was observed to exit the BMW and approach unit 67 and then within 3 minutes returned to the BMW – Detective De Benedictis explained that in his experience this is referred to as an "in and out" or a "sale and sell" situation, which is "consistent and conducive" with drug trafficking; and
• The combined experience of the officers both in and outside of the drug unit.

[33] Reasonable people can disagree as to when a set of accumulated circumstances rise to the level of reasonable suspicion in the context of an investigative detention. It is always an exercise in judgement. In accordance with the test set out in R. v. Mann (supra), I am satisfied that on the grounds articulated by the officers and as set out above they meet that standard on both a subjective and objective basis.

Section 8: Unreasonable Search and Seizure

[34] Legal authority for the search of Mr. Nugent exists if the officers in the course of their investigative detention also had reasonable grounds to believe that their or another's safety was at risk.

[35] The limits on a officer's grounds to search in the context of an investigative detention were established by the Supreme Court of Canada in R v. Mann at para 45:

In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police.

[36] Both officers testified that they understood their power to search an individual was restricted to safety concerns in the context of an investigative detention. Constable Gorham testified that he did have safety concerns and those concerns were based on the following combined circumstances:

• That he and his partner both saw Mr. Nugent handling a makeshift bat while seated in the back seat of the vehicle;
• That Mr. Nugent appeared nervous and was making shuffling movements with his right hand into his left jacket pocket;
• That this was a drug investigation and in his experience it is common for people who deal in drugs to carry weapons to protect themselves, and;
• That on his initial cursory search outside and on top of clothing he felt a hard sharp object that he believed to be a weapon, likely a knife.

[37] I also take into consideration that the officers were outnumbered; there were three people in the car and only two of them. When Mr. Nugent created a distraction by dropping his pants this added to a heightened sense of uncertainty and danger for the officers.

[38] In my view, these circumstances considered in combination provided an ample basis for Constable Gorham to search Mr. Nugent.

[39] I find that the search and seizure of Mr. Nugent by Constable Gorham was a reasonable one.

Section 7

[40] Crown counsel concedes that Mr. Nugent's Section 7 rights were breached when Constable De Benedictis asked him to identify himself and he provided the false name of Lloyd, to which immediately Constable De Benedictis corrected him.

[41] In terms of the Section 7 breach, Crown counsel argues that nothing flows from it and as such no remedy is necessary or applicable. I agree. All three occupants of the BMW were asked to give their name. Mr. Nugent gave the name Lloyd, which the officers knew to be untrue and Detective Constable De Benedictis immediately corrected him. No further questions were asked by the police. There was no attempt by the officers to extract any further information from Mr. Nugent. The question was not designed to undermine his right to silence and nor did it have that effect.

Section 10(b)

[42] Upon detention an accused person is to be immediately advised of his rights to counsel; see R v. Suberu, 2009 SCC 33.

[43] The Supreme Court of Canada in Suberu (supra) writes the following at paragraph 2:

The specific issue raised in this case is whether the police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention - a question left open in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 22. It is our view that this question must be answered in the affirmative. The concerns regarding compelled self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. Therefore, from the moment an individual is detained, s. 10(b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel "without delay". The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.

[44] In this case, Crown counsel concedes that this did not happen and Mr. Nugent's Section 10(b) rights were violated.

Section 24(2) of the Charter

[45] Applying the Grant test, I must first consider the seriousness of the Charter infringing conduct.

Seriousness of the Charter Infringing Conduct

[46] Both officers candidly admit that Mr. Nugent was not given his 10(b) rights until after he was placed under arrest at 12:18 a.m. Detective Constable De Benedictis explained that their primary concern was for officer safety and it was his belief that providing Mr. Nugent with his rights to counsel during the search for weapons would have compromised their personal safety.

[47] I accept the officers' explanation and find that in no way were they attempting to disregard Mr. Nugent's Charter rights. They were in a situation that was fluid and uncertain. Although aware of their obligation to provide Mr. Nugent with his 10(b) rights they were not prepared to do so until the scene was secure and safety was no longer an issue. It would be unreasonable to suggest that these officers should have done anything else given the circumstances. Moreover, the total time from traffic stop to arrest of Mr. Nugent was approximately 7 minutes, and Mr. Nugent's rights to counsel were given to him within a few minutes of being arrested. During this transitory time period there was no attempt to undermine Mr. Nugent's right against self-incrimination, all of which only serves to minimize any adverse impact the violation had on Mr. Nugent. I find that the officers were mindful of Mr. Nugent's Charter rights and acting in good faith at all times.

[48] Moreover, the investigative detention and search were lawful and there was no attempt by the officers to question or extract information from Mr. Nugent prior to him being given his rights to counsel.

[49] In my view, the officers' decision to delay giving Mr. Nugent his rights to counsel until such time as they could deem the scene safe was reasonable and militates in favour of inclusion of the evidence.

The Impact of the Breaches on the Charter Protected Interests of the Accused

[50] I find that the physical search, in which the evidence was discovered, was carried out in an efficient and non-intrusive manner. I appreciate that Mr. Nugent was handcuffed prior to being searched. However, given the safety concerns of the officers, I find that this was entirely reasonable. I also take into account that Mr. Nugent was at all times aware of the reason he was being detained. These factors weigh towards the inclusion of the evidence.

Society's Interest in Adjudication on the Merits

[51] The third line of inquiry requires a consideration of society's interest in a trial on the merits.

[52] The evidence in this case is real and reliable. It is central to the Crown's case and Mr. Nugent cannot be convicted without it.

[53] The charges against Mr. Nugent are serious and the Crown has proceeded by way of indictment.

Balancing

[54] The focus of the 24(2) analysis is deciding whether the admission of evidence obtained would bring the administration of justice into disrepute. The analysis is done with a special focus on the long term repute on the administration of justice.

[55] After weighing all the factors as I must, and despite the finding that Mr. Nugent's 10(b) rights were breached, I find that no remedy flows from it. There is no basis upon which to exclude the evidence and in my view to do so would bring the administration of justice into disrepute.

Conclusion

[56] For the aforementioned reasons the Charter application is dismissed and the evidence will be admitted.

Released: May 8, 2013

Signed: "Justice K.P. Wright"