Court Information
Court File No.: Not provided
Date: December 11, 2013
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— AND —
Collin Taylor
Judicial Officer and Counsel
Before: Justice J. M. Grossman
Heard on: August 21, September 24 and October 29, 2013
Judgment released on: December 11, 2013
Counsel:
- V. Beylin — Counsel for the Crown
- L. Rados — Counsel for the Accused
Judgment
Grossman, J.:
Charges
[1] Collin Conrad Taylor is charged with Obstructing a peace officer, to wit: Officer Lindsay Glena Griffin on June 23, 2012 in the City of Toronto, in the Toronto Region by identifying himself as Jason Taylor, to avoid prosecution on Collin Conrad Taylor.
[2] He is further charged on or about June 23, 2012, in the City of Toronto, in the Toronto Region with four counts of failing to comply with his recognizance, contrary to the Criminal Code by allegedly breaching conditions of his recognizance which required that he not be in Toronto at any time except for attending court or attending counsel; that he reside at 42 Atkins Circle, Brampton with his mother and sister; that he remain in his residence at all times at 42 Atkins Circle unless in the company of one of his sureties; and that he abstain absolutely from the purchase, possession or consumption of non-medically prescribed drugs prohibited by the Controlled Drugs and Substances Act.
[3] He is further charged that on or about November 18, 2011, in the City of Toronto, in the Toronto Region, he failed to attend Court at Ontario Court of Justice, Courtroom 304, 1000 Finch Avenue West, Toronto as required by the said Court contrary to the Criminal Code.
[4] Furthermore, he is charged on or about June 23, 2012, in the City of Toronto, in the Toronto Region, did unlawfully possess a controlled substance to wit: Cannabis (marijuana), in an amount not exceeding 30 grams contrary to Section 4(5) of the Controlled Drugs and Substances Act.
[5] Finally, Mr. Taylor is charged with having liquor in an open container contrary to Section 31(2) of the Liquor Licence Act.
Dismissals and Concessions
[6] On September 24, 2012, Crown counsel invited me to dismiss Count 3 relating to the alleged failure to comply with his recognizance which required Mr. Taylor to reside at 42 Atkins Circle, Brampton with his mother and sister. Accordingly, that charge was dismissed. Additionally, the count of having liquor in an open container contrary to the Liquor Licence Act is also dismissed.
[7] Mr. Taylor made certain concessions through his counsel in relation to date, time, jurisdiction and identification. He further conceded he was arrested and released on a recognizance, a certified copy of which was filed as an Exhibit along with Notice pursuant to the Canada Evidence Act and certified copies of Information No. 10009076 sworn August 22, 2010 and Information No. 10-10009077 also sworn August 22, 2010.
[8] Further documents were filed as Exhibits 2a, 2b and 2c, respectively, namely Notice of Intention to tender in evidence Certificate of Clerk, Certificate of Clerk and Notice pursuant to the Canada Evidence Act.
[9] Furthermore, filed as Exhibit 3 were Notice of Intention and Certificate of Analysis along with the fax cover sheet.
Charter Application
[10] Mr. Taylor brought a Charter Application seeking to exclude all evidence seized and all utterances made by him pursuant to Section 24(2) in consequence of an alleged breach of Sections 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms. Mr. Taylor submits he was illegally searched, illegally detained, not advised of the reasons for his detention and not informed that he could consult with counsel. It was agreed the Charter Application would be blended with the trial proper.
Facts
[11] Officers Keown and Griffin were on duty on June 23, 2013 travelling southbound on Jane Street in the City of Toronto at about 12:31 a.m. when they had occasion to observe a grey 4-door Chrysler motor vehicle bearing Ontario marker BLNB 602. The vehicle was not contravening any rules of the road or the subject of any investigation. The officers ran a check on the licence plate to ascertain licence status and determine if the vehicle was stolen. There was no basis for any suspicion that the vehicle was stolen.
[12] In consequence of learning the vehicle was a rented car, Officer Keown testified he initiated a vehicle stop. He testified "I commonly pull over rental vehicles." He also stated he does "50 to 75 checks a shift". Officer Griffin also agreed in her testimony that the reason for conducting a vehicle stop was because the car was a rental vehicle.
[13] Upon the Chrysler stopping, Officer Keown approached and spoke with the driver. Officer Griffin approached and spoke with the passenger. There were no other persons in the vehicle. Officer Keown referred to the driver as being cooperative. Officer Griffin referred to the passenger as being: "for the most part, he was fairly cooperative."
[14] Each officer observed the smell of freshly cut marijuana. Officer Keown also smelled alcohol coming from within the vehicle.
[15] Officer Keown advised the driver he would be arrested for possession of marijuana and located marijuana in the driver's front pocket. The passenger, Mr. Taylor, was also arrested for possession of marijuana which was found concealed in the waist of his pants. Although the marijuana was seized and ultimately weighed by Officer Keown, the Officer did not have a note of the weight in his memo book. The Drug Report filed as Exhibit 4 which was eventually prepared, disclosed the weight to be 2.83 grams.
[16] A certain dissatisfaction resulted from the officer's conversation with Mr. Taylor in relation to his identity. While Officer Griffin described Mr. Taylor as being fairly cooperative, she was not satisfied with his verbal self-identity when he stated his name to be Jason Taylor born November 23, 1987. He claimed he lost his wallet and no one could confirm his identity. Later, he identified himself as Rohan Robinson, born January 29, 1977.
[17] The driver was released and the vehicle was released to Sabrina Keene who was the person that rented the vehicle. Mr. Taylor was not released and was also arrested for obstructing a peace officer by mis-identifying himself as Jason Taylor. Once fingerprints were obtained, his true identity as Collin Conrad Taylor born November 21, 1977 was ascertained.
[18] Officers Gill and McIntosh arrived later at the scene after the Chrysler vehicle had already been stopped by Officers Keown and Griffin. Officer Gill testified he did not know why the Chrysler vehicle was pulled over in the first place.
[19] Mr. Taylor testified in relation to the allegation of failing to attend Court on November 18, 2011 stating he was aware of the court date and did not attend because he was sick with stomach flu. He stated he sent one of his sureties but although she was apparently given a reminder notice for a further Court date, he did not have it.
Charter Analysis
[20] Mr. Taylor argues his Charter rights under Sections 8, 9, 10a and 10b of the Charter had been violated and invites me to exclude all utterances and real evidence pursuant to Section 24(2) of the Charter because of the said Charter breaches.
The Basis for the Vehicle Stop
[21] The paramount question arising from the evidence urges me to consider the reason for the officers stopping the vehicle in the first place. This was not a R.I.D.E. program. There was no report of a stolen vehicle. There was no driving conduct which triggered any concerns relating to the consumption of alcohol. There was no excessive speed, erratic driving or any other infractions under the Highway Traffic Act. It appears the vehicle was following the rules of the road. The evidence relates the only reason for stopping the vehicle was because it was a rental vehicle and the officers routinely stop rental vehicles at random. Crown counsel argues that drivers of rental cars can expect to be pulled over. In my view, that statement is unsettling. Crown argues the routine stopping of rental vehicles was the evidence of the officers and states: "It's up to your Honour to decide what you make of it."
[22] In deciding what I make of it, I look to the case law. It should be remembered that Mr. Taylor was a passenger in the vehicle and not the driver.
Applicable Case Law
[23] In R. v. Pinto, [2003] O.J. No. 5172, Hill J., in the Ontario Superior Court of Justice determined the accused be acquitted on a charge of assaulting a peace officer in the execution of his duty and of three crimes relating to a prohibited weapon. The accused was a passenger in a vehicle stopped for a noise violation arising from an excessively loud stereo. The officer requested identification from the accused and learned from dispatch that Mr. Pinto was on recognizances. Further efforts were made by the officer to ascertain if Mr. Pinto was in breach of his recognizances. Mr. Pinto was questioned and then searched during which a physical confrontation ensued and a flick knife was discovered in the pants of the accused in a search incident to arrest.
[24] Justice Hill, in acquitting the accused, stated as follows at paragraph 36 of his Judgment:
[36] A traffic stop is a lawful and justifiable exercise of police authority in furtherance of highway legislation enforcement and public safety: s.216(1) Highway Traffic Act. A traffic stop detention may not, however, be a ruse or gimmick for general criminal investigatory work: Mellenthin v. The Queen, (1992), 76 C.C.C. (3d) 481 (S.C.C.) at 486-8. Society, and in turn the law, is concerned that the traffic stop can mask abusive or excessive use of police authority as the real motive for the motorist's detention: Ladouceur v. The Queen, (1990), 56 C.C.C. (3d) 22 (S.C.C.) at 44 per Cory J. and at 29 per Sopinka J. (in dissent in the result).
[25] Hill J. goes on to acknowledge that "occupants of a motor vehicle stopped for a highway traffic violation are detained from a constitutional perspective." (paragraph 45). I am unable to find any highway traffic violation having considered the totality of the evidence.
[26] At paragraph 51, Hill J. continues:
Subject to the issue of consent, which I will presently address, a request for information or identification documentation from a vehicle passenger amounts to a search or seizure within the meaning of s.8 of the Charter. In Mellenthin v. The Queen, supra, at 491, Cory J. stated that an otherwise lawful traffic stop "does not and cannot constitute a general search warrant for searching every vehicle, driver, and passenger that is pulled over" (emphasis added). Similarly, in Brown et al. v. Regional Municipality of Durham Police Service Board, (1998), 131 C.C.C. (3d) 1 (Ont. C.A.) at 19, Doherty J.A. did not disagree with the trial judge's finding that the police exceeded the limits of a s.216(1) Highway Traffic Act traffic stop in asking passengers for "identification".
[27] At paragraph 55, Hill J. continues:
55 Mathew Pinto was entitled to sit in the front passenger seat of the Honda and be left alone while the car's driver was processed in some fashion for the alleged s.75(4) Highway Traffic Act violation. In a lawful traffic stop, as a general rule, a vehicle passenger cannot be subjected to non-consensual dragnet or general investigative questioning or identification production. Constable Smith was not engaged in the lawful execution of duty in proceeding as he did to request Pinto's identification.
[28] In R. v. Harris, 2007 ONCA 574, [2007] 87 O.R. (3d) 214, (Ont. C.A.), the accused was a passenger in a motor vehicle stopped by police for a Highway Traffic Act infraction. It was also observed, before the stop, that the accused was not wearing his seatbelt. Further investigation revealed the accused was in violation of a curfew condition of his bail order. Upon being arrested, he was searched and crack cocaine was found on his person. Doherty J.A. stated at paragraph 17:
A person is detained when physically restrained by the police. Psychological restraint will also constitute detention. A person who complies with a police direction or command reasonably believing that he or she has no choice is detained for the purposes of ss. 9 and 10 of the Charter: R. v. Therens, [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30, 18 C.C.C. (3d) 481, at p. 643 S.C.R., p. 505 C.C.C.; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 185 C.C.C. (3d) 308, at p. 71 S.C.R., p. 319 C.C.C.
[29] In R. v. Frank, 2012 ONSC 6274, [2012] O.J. No. 5242, Code J. in the Ontario Superior Court of Justice held that "merely asking a suspect for identification does not give rise to a detention" (see paragraph 47). In Harris, (supra), Doherty J.A. acknowledged that the determination of whether a person is detained demands a fact-specific inquiry. A person is not necessarily detained merely by the fact that he or she is stopped by police. However, in a circumstance where a person reasonably believes he or she has no choice, a detention will generally be found. (See R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 at 319)
[30] I return to the paramount question. What basis was there for stopping the vehicle driven by Mr. Gallimore? What basis was there for questioning the passenger Mr. Taylor? It would appear with the approach of two officers to each side of the vehicle, it is conceivable that Mr. Taylor reasonably perceived he was not free to leave the vehicle and was under psychological constraint. In actual fact, he remained in detention for the rest of his encounter with the officer. In Harris, (supra), there was justification for stopping and questioning the driver and the passenger as each had been observed to commit a Highway Traffic Act infraction. I am unable to find any similar justification in the case at bar.
[31] I draw further from the remarks of Doherty J.A. in Harris (supra) where he states at paragraph 38, 40 and 41 as follows:
[38] … Harris was under police detention. Lipkus was not asking Harris to identify himself out of some sense of curiosity or so he could greet Harris by name should they meet again. Lipkus had a very specific purpose in mind when he asked for identification. He intended to use that identification to access a wealth of personal information about Harris before allowing Harris to proceed on his way.
[40] A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police: R. v. Hebert, [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, 57 C.C.C. (3d) 1. In the circumstances, Harris's identification in response to the officer's question constitutes a seizure and attracts s. 8 protection. [See Note 2 below]
[41] The seizure was unreasonable. As in Mellenthin, Lipkus had no reason to suspect Harris of anything when he questioned him and requested his identification. The purpose for the stop and the consequential detention of Harris and the other occupants of the vehicle had nothing to do with the request for Harris's identification. The purpose of the stop did not justify an at large inquiry into Harris's background or his status in the criminal justice system. That was the effect of the request for identification. Just as in Mellenthin, Lipkus expanded a Highway Traffic Act stop into a broader and unrelated inquiry. Harris's identification of himself provided the entrée into that broader and unrelated inquiry.
[32] In R. v. Whyte, [2009] O.J. No. 3557, Pringle J. of this Court allowed the Charter Application alleging breaches of sections 8, 9 and 10, excluded the evidence obtained and acquitted the accused on a charge of obstructing a peace officer in the execution of his duty.
[33] The facts relate that Mr. Whyte was a passenger in a vehicle that was stopped in relation to a rolling stop and an expired validation sticker. Once the vehicle was stopped, the officers smelled marijuana. Upon searching the vehicle, a digital weigh scale with marijuana residue was found. The accused was handcuffed, searched and when asked for his name, he initially lied. He then gave his real name and admitted he was under house arrest.
[34] Justice Pringle found the evidence must be excluded balancing all of the factors under s. 24(2) of the Charter, particularly mindful of the series of Charter breaches leading to the self-incrimination of Mr. Whyte. At paragraph 39, she states:
39 Balancing all of the factors under s.24(2), I find the evidence must be excluded. The state conduct was serious: handcuffing Mr. Whyte for the purpose of investigating the smell of marihuana in the car was a gross over-reaction to the situation here. This kind of treatment of passengers during a motor vehicle stop cannot be condoned. The police conduct was further exacerbated by a series of breaches leading to the ultimate self-incrimination of Mr. Whyte. The impact to Mr. Whyte's liberty interest was significant, as was the impact of his uninformed decision to mislead the police about his identity. While Mr. Whyte was clearly lying in this case, the long term repute of the administration of justice would suffer if this kind of police conduct during a motor vehicle stop was condoned.
[35] Officer Keown testified he did not remove the handcuffs on Mr. Taylor when he was becoming increasingly agitated. He then went on to say he assumed Mr. Taylor was placed in handcuffs but not by him. Crown counsel acknowledged Mr. Taylor was in handcuffs after his arrest for possession of marijuana. Justice Pringle refers to handcuffing in such circumstances as being "a gross over-reaction" (see supra).
[36] The smell of marijuana observed by the officers came from the vehicle. I am mindful of the decision of the Supreme Court of Canada in R. v. Mann, [2004] 3. S.C.R. 59 (S.C.C.) at para. 30, where the Court held that a hunch is not a sufficient basis for an investigative detention. Moreover, even when there is a sufficient basis for an investigative detention, the search power incident to investigative detention is merely a protective one based on officer safety, and does not extent to a search for evidence generally. See Mann at para. 43.
[37] In R. v. Polashek, [1999] O.J. No. 968 (C.A.), Rosenberg J. A. referred to a decision of the Court of Appeal of Wisconsin in State v. Secrist, 582 N.W. 2d 37 at 39-40 (Wis. App. 1998) stating:
While we recognize that police officers should not be unduly restrained in their duty to investigate crime and apprehend criminals, the mere odor [sic] of marijuana coming from a car with a sole occupant is not enough to establish probable cause to arrest. Here, the officer had only the suspicion that it was Secrist who had been smoking marijuana. This mere suspicion is not sufficient for probable cause to arrest. Because the evidence relied upon for conviction was the fruit of a search subsequent to an unlawful arrest, we reverse Secrist's conviction. [Emphasis added.]
[38] Justice Rosenberg went on to refer to this judgment and continued with his own observations in paras. 12 and 13 as follows:
12 In short, the appellant argues that the presence in a vehicle of the odour of marijuana alone shows only that at some time someone smoked marijuana in that vehicle. It does not provide reasonable grounds to believe that the present occupant of the vehicle was in present possession of marijuana. Thus, it is argued, there are no grounds for an arrest or a search based solely on the officer's perception of marijuana odour.
13 I agree, in part, with the appellant's position. Had Constable Ross based his arrest of the appellant solely on the presence of the odour I would have held that there were not reasonable and probable grounds to make the arrest. … 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.
[39] R. v. A.K., [2009] O.J. No. 5162 was a decision of J.S. Nadel J. in the Ontario Court of Justice. A.K., a young person was the middle rear-seat passenger in a car pulled over for rolling through a stop sign. The police officer asked all the males in the rear to identify themselves so he would know who he was dealing with. A.K. misidentified himself and was charged with obstructing a peace officer and failing to comply with a curfew condition of his recognizance.
[40] Nadel J. found, having balanced all of the factors in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, that the compelled utterances made by A.K. to the officer must be excluded and the charges were dismissed. At paragraph 17, he stated:
17 Like Justice Caldwell in the trial judgment in Harris, I find that while initially lawful, the character of K.'s detention changed, once Poffley moved beyond detaining K. for the purpose of investigating issues relating to driving offences. Poffley had no lawful authority to question K. K. was a passenger in the vehicle. He had no control over the driving under investigation. There was no evidence he was committing any offence. Although his detention may have been a necessary consequence of the traffic stop, he was entitled to be left alone during the investigation of the driver. (See R. v. Pinto [2003] O.J. No. 5172 (S.C.O.) ")
Application to the Facts
[41] To be successful in the Charter application, Mr. Taylor must establish, on a balance of probabilities, that his constitutional rights were violated and that the admission of the evidence obtained through the breach of his Charter rights would bring the administration of justice into disrepute. Accordingly, I have considered the case law as it applies to the particular facts of this case. In many of the referenced cases, there was a Highway Traffic Act offence which formed the basis for a stop of the vehicle. Even so, in many of the cited cases, the evidence was still excluded because of Charter violation. In my review of the evidence at trial, I find no basis for stopping the motor vehicle in which Mr. Taylor was a passenger. There was no evidence of wrongdoing. There was no evidence the vehicle was stolen. In fact, it was properly rented and the rental period had not expired. I cannot find justification for search or seizure. This has been declared to be a serious Charter breach.
[42] In Mellenthin v. The Queen (supra) at para. 26, Cory J. stated:
To search a person who is stopped at a check stop, without any reasonable or probable cause, goes far beyond the purpose and aim of those stops and constitutes a very serious Charter breach.
[43] In considering whether the evidence seized and utterances made by Mr. Taylor should be excluded, I must consider whether the admission of this evidence would bring the administration of justice into disrepute. In doing so, I consider the three factors set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, namely, the seriousness of the Charter-infringing state conduct; the impact of the breach on the Charter-protected interests of the accused; and society's interest in the adjudication of the case on its merits.
[44] The trial fairness factor is based on the notion, as Justice Brewer stated in R. v. Alato, [2008] O.J. No. 5141 (Ontario Court of Justice) at para. 28 "that an accused person should not be conscripted to participate in the creation or discovery of incriminating evidence. … The results of the checks conducted on the police databases were also conscriptive evidence, as they were derived from statements made by the defendant."
[45] The police behaviour shows a stopping of a vehicle simply because it was rented and rented properly. There is a smell of marijuana from the vehicle. I have already referred to caselaw in this regard. There is reference to handcuffs being placed on Mr. Taylor who was the passenger. I am satisfied he had reason to believe he was either physically or psychologically detained and could not leave and felt compelled to respond to police questioning. Officer Griffin conceded she didn't have her notebook with her to read him his right to counsel. Yet she related she gave him his right to counsel and informed him of duty counsel. It is often the case that officers refer to the back of their notebook to relate to the court the detailed right to counsel and duty counsel information. I am invited to consider that Officer Griffin did so without her notebook. The law regarding police obligation in relation to section 10(a) and 10(b) of the Charter is long established and should not be treated with casual attitude.
[46] I refer again to Brewer J. in R. v. Alato (supra) at para. 30 where she states:
… it seems to be that it would bring the administration of justice into further disrepute to admit evidence that was gathered through an on-going disregard for individual rights and which could undermine the fairness of these proceedings.
[47] I cannot overlook the absence of a reasonable basis for stopping the car along with a series of breaches which led to an arbitrary detention, arrest by handcuffs, a right to counsel apparently not read from the prescribed text usually found in a police notebook and Mr. Taylor's uninformed decision to give untrue answers about his identity to the officer.
[48] It must be observed that Mr. Taylor, who was on a recognizance and in breach, was asked to incriminate himself while in police detention by identifying himself without being informed of his right to refuse to answer or remain silent. I am troubled by the investigation of a passenger in a vehicle that had done nothing wrong.
[49] In R. v. Harris, (supra), Doherty J.A. states at para. 63 as follows:
[63] The third factor to be considered is the nature of the breach viewed from the perspective of those whose rights are infringed. I cannot accept the Crown's characterization of this breach as "minimally intrusive". The use of the broad powers associated with Highway Traffic Act stops to routinely investigate passengers who have nothing to do with the concerns justifying those stops must have a significant cumulative, long-term, negative impact on the personal freedom enjoyed by those who find themselves subject to this kind of police conduct. While for persons in some segments of the community, these stops may be infrequent, this record suggests that for others the stops are an all too familiar part of their day-to-day routine. Viewed from the perspective of those who are most likely to find themselves stopped and questioned by police, I think this form of interrogation is anything but trivial. It seems to me at some point it must become provocative.
[50] I conclude Mr. Taylor was detained from a constitutional perspective. I further conclude Mr. Taylor was subject to a seizure when he gave the officer his identification. The seizure was without reasonable cause and warrantless. I am not persuaded he waived any rights under Section 8 of the Charter. I am uncertain as to exactly what was said to him about his right to counsel. This was not a Highway Traffic Act stop and investigation as there was no wrongdoing under the Act. There was no articulable cause for stopping the vehicle. See R. v. McGlashen, [2004] O.J. No. 468, Ont. S.C.J. at para. 23. It would seem the Charter breaches undermine the interests protected by the rights which were breached. My earlier reference to Justice Pringle's remarks in R. v. Whyte (supra) at para. 39 are emphasized.
[51] Balancing all of the factors under s. 24(2), I find the evidence and utterances must be excluded. Even if the evidence was not excluded under s. 24(2), the cumulative impact of the Charter breaches invite the conclusion that the officers were not acting in the lawful execution of their duties when they detained Mr. Taylor and asked him for his identification particularly mindful there was no reasonable cause to stop the vehicle in the first place.
Disposition
[52] Accordingly, the charges are dismissed.
Date: December 11, 2013
Signed: "Justice Jack M. Grossman"