Court File and Parties

Court File No.: Newmarket Date: January 22, 2014 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Philip Defoe

Heard: January 22, 2014 Reasons: January 22, 2014

Counsel: Crown Counsel

KENKEL J.:

Mr. Defoe is charged with driving while prohibited from doing so contrary to s. 259(4) of the Criminal Code.
Constable Wyatt noticed a vehicle idling in the driveway of a residence. The residence and the vehicle were on a list related to prohibited and suspended drivers. In this case the vehicle was linked to a particular prohibited driver – Philip Defoe. Constable Wyatt stopped nearby the only exit from that street.
Constable Wyatt then saw the same vehicle being driven by a male. He recognized the driver as being Philip Defoe from a photo that had been generated by his system in relation to that vehicle. He stopped the SUV and the driver identified himself as Philip Defoe using an expired driver's license and an expired insurance card. In court, Constable Wyatt identified Mr. Defoe as the person driving the SUV that day.
Mr. Defoe was served with notice under the Canada Evidence Act on September 4th. The notice is marked as Exhibit #1. He was also provided copies of the certified documents filed as Exhibit 2. Exhibit 2 shows that on October 13, 2010 Mr. Defoe was sentenced in relation to two offences and was prohibited from operating a motor vehicle for 3 years pursuant to s. 259 of the Criminal Code.

Mr. Defoe brought an application for a stay of proceedings s. 11(b). In reasons given earlier I explained that despite the adjournment of the first trial date, the overall institutional delay of 6 months and 5 days did not breach s. 11(b).

Mr. Defoe alleges his s. 9 right to be free from arbitrary detention was breached by the police stop in this case. The evidence shows that the officer had ample grounds to stop the SUV. I don't accept Ms. Defoe's evidence that the officer was hiding and could not have seen her husband driving directly by as there's no reason for the officer to do that and it's contrary to his credible evidence. I'm unable to accept her recollection as to the officer's statement as to the reason for the stop as the officer had specific grounds and had no reason to refer to a random check. Even if Ms. Defoe is correct, the observation of a car leaving a listed residence with a prohibited male driver with the subsequent observation from behind of a male driver as the officer followed the vehicle would provide sufficient cause to check the identity of that driver. There's no evidence of a section 9 breach.

Mr. Defoe submits that the check made by the officer as he drove past and observed a vehicle running in the driveway of a residence is surveillance that breaches his right to privacy under s. 8 of the Charter. Driving is a regulated activity. There's no reasonable expectation in relation to a vehicle license plate generally and the officer's observations were made in a drive past in a public area. There's no evidence of a section 8 breach.

I agree with Mr. Defoe that section 10(a) contemplates that a person be advised of a right to speak to counsel immediately upon arrest or detention. The right to counsel advice in this case came minutes after the accused was advised he was under arrest after he'd been placed in the police car. I do not find that delay to breach section 10(a) but if that's not correct then I note that there's no evidence obtained as a result of that breach. The investigation was complete by that point. A stay of proceedings would be inappropriate given that such a breach would be very minor and technical and given that Mr. Defoe was not subsequently detained. In fact he was driven directly home by the police and released on an appearance notice. He was free then to call anyone he wished.

Considering the evidence as a whole, I can find no credible evidence that reasonably could leave a doubt. I find that the Crown has proved the charge alleged beyond a reasonable doubt and there will be a finding of guilt.

Released January 22, 2014

Signed: Justice Joseph F. Kenkel