Court Information

Court: Ontario Court of Justice Region: Central West Region, Brampton, Ontario

Between:

Her Majesty the Queen

-and-

Kevon Gayle

Reasons for Judgment

Judge: Duncan J.

Facts

[1] The defendant is charged with possession of marijuana and possession of cocaine, offence date May 23, 2014. The substances were found in his pockets during a pat down search following his being stopped for certain HTA offences committed while operating a scooter or bicycle.

[2] The case has been defended solely on Charter grounds. It is alleged that the brief (5 minute) encounter between the defendant and the police discloses infringement of the defendant's rights under sections 8, 9, 10(a) and 10(b). The trial proceeded on a blended basis. Two police officers testified for the Crown. The defence called no evidence on the Charter application or trial.

Factual Background

[3] At around 7 pm on May 23, 2014, police officers Perrault and Wallbank were together on pay duty engaged in STEP – Strategic Targeted Enforcement Policing – within the street crime unit of the Peel Regional Police. Their specific tasks included to "target complaint areas" and "do compliance checks on people with conditions". This was described as a policing initiative dating from 2007 that replicates the TAVIS program in Toronto.

[4] The two officers were together in an unmarked police car. They drove to the rear of St. Augustine high school located at the intersection of Lockwood and Drinkwater, a residential neighbourhood. After seeing nothing happening at the rear of the school they drove to the front to exit from the parking lot. At that point they saw the defendant on an electric scooter or bicycle[1] drive through a stop sign at the intersection. He was not wearing a helmet. After crossing the intersection he drove onto the opposite side of the street, close to the curb, for a short distance.

[5] PC Perrault recognized the defendant. He had dealt with him on one occasion about 5 years earlier while working as a school officer at St. Augustine[2]. He was also aware that the defendant had recently been charged with a gunpoint robbery and was on bail. He mentioned that to Wallbank and activated lights and siren, stopping the defendant.

[6] Perrault approached the defendant on foot and started talking to him about his driving. The defendant was not making eye contact and was giving brief one word answers – which to Perrault raised the concern that the defendant's mind was elsewhere, possibly thinking of fleeing or fighting or that he was going to be arrested because he knew he was doing something illegal. He started to question the defendant about bail conditions that he was on. Wallbank asked the defendant for his full name and birthdate so he could run a check on him for bail conditions.

[7] Perrault said that while this encounter was going on, the defendant put his hands in the pockets of his pants and hoodie and repeatedly did so contrary to the officer's cautions. He said at this point he told the defendant that he was under investigative detention (but see para 9 below), though he did not say what for. Having regard to the defendant's actions and his history, Perrault decided to do a safety pat down search. He added that he also smelled fresh marijuana on first approaching the defendant though that played no part in his actions or thinking. (Wallbank did not mention having noticed any smell). Perrault patted the defendant's waist area and felt what he believed was a plastic baggie partly full of air. He believed that it was drugs as in his experience that is a common place for people to conceal marijuana. He considered that he had reasonable and probable grounds and arrested the defendant for possession of narcotics, lifted his shirt and pulled out the bag - which turned out to contain about an ounce of marijuana. A further search incident to arrest revealed several small baggies of cocaine in his jeans key pocket.

[8] The defendant was arrested and taken into custody. He was later issued traffic tickets at the police station. He was held for a bail hearing.

[9] One final point should be noted re the above summary: Perrault's notes suggest that the defendant was told that he was under investigative detention very near the beginning of their interaction. He explained that he had omitted that from his notes when he first made them and added it on seeing the omission. He testified that he inserted it near the beginning because there was a space in which to do so, even though the event came later in the chronology. However it was pointed out that there was also a space in what would have been the right chronological place for the note. For this reason I find his explanation difficult to accept. I find that the notes more accurately reflect when the investigative detention was announced – at the beginning of the encounter.

Analysis

[10] The Supreme Court has said that these encounters require the courts to proceed step by step through the interaction from the initial stop onwards to determine whether the police stayed within their authority:[3] Close and careful analysis is important because:[4]

The vibrancy of a democracy is apparent by how wisely [the court] navigates through those critical junctures where state action intersects with, and threatens to impinge upon, individual liberties.

Step #1 – The Stop

[11] There is no doubt that the defendant apparently committed one or more HTA infractions witnessed by the officers and they were entitled to stop him: s 216 HTA (mv) or s. 218 (bike). It is also apparent that the police had another purpose in stopping him – to see if he was complying with bail conditions. There is no statutory provision or common law rule allowing the police to stop and detain a person – driver or pedestrian – to carry out such an investigation.

[12] In these situations, the law is quite clear – such dual purpose stops are legal. Where a stop is made pursuant to legal authority, the existence of a secondary investigative purpose does not affect the legality of the stop and detention, provided that purpose is not improper: Brown v Durham Police Force (1998), 131 CCC 3d 1 (Ont CA). This principle was affirmed by the Supreme Court of Canada in R v Nolet 2010 SCC 24, [2010] 1 SCR 851 with the Court adding that it was not appropriate or helpful to attempt to measure and identify which purpose was dominant and which was subordinate.

[13] But there is a caveat: the use of the legal stopping authority (usually HTA) cannot be a mere pretext or ruse employed in order to further the other investigative purpose. In Brown supra, Doherty JA said:

The appellants argued at trial and on appeal that highway safety concerns were a ruse used by the police to justify the stopping of the appellants, their friends and associates. Had this argument been accepted, s. 216(1) of the H.T.A. could provide no lawful authority for the stops and detentions: R. v. Dedman, [1985] 2 S.C.R. 2 at p. 31, 20 C.C.C. (3d) 97; R. v. Zammit (1993), 13 O.R. (3d) 76, 15 C.R.R. (2d) 17 (C.A.). (Underlining added)

[14] In R v Humphrey 2011 ONSC 3024, [2011] OJ 2412 (Ont Sup Crt) Code J cited the above passage and went on to observe that since it did not matter which purpose was dominant and which was subordinate (Nolet) it would follow that a stop could be considered a pretext only if it could be shown that the sole purpose of the stop was to further the other criminal investigation and that there was no intention at all to investigate or pursue the HTA offence. (para 98). It must be said that if this is a correct statement of the law, (and it certainly seems to follow logically from Nolet) then there is very little protection against mis-use by police of HTA stopping authority – something the Supreme Court of Canada has repeatedly cautioned against.

[15] Many cases demonstrate the wide tolerance afforded the police in these situations. In addition to Brown and Humphrey see for example: R v Johnson [2013] OJ 1380 (CA); R v Morris [2011] OJ 3994 (Sup Crt).

[16] A pre-text is not something that is false - at least not necessarily so. It is an "ostensible or alleged reason or intention" (Concise Oxford Dictionary) or "a reason that you give to hide your real reason for doing something" (Merriam-Webster Dictionary). Being an exploration into secret motivation or intention, the determination of the question of pretext is difficult – so much so that the Americans have decided that "the catch is not worth the trouble of the hunt"[5] and have abandoned the attempt altogether. The Supreme Court has declared that police motivation and pretext in relation to stopping is irrelevant. Instead they now focus exclusively on what the officer did after the stopping in relation to their Fourth Amendment right against unreasonable search and seizure.[6]

[17] But the question of pretext is part of Canadian law, as per above, and must be considered. The pretext issue is present both in cases of random (groundless) stops, such as Brown and Nolet and reactive stops where the witnessing of a minor offence is stated to be the reason for the stop, as in Humphrey supra; see also R v Calderon, [2004] OJ 3474 (CA).

[18] Insight into the question of pretext can be gained by examination of what occurs after the stop. Did the HTA concerns continue to manifest themselves throughout the detention concurrently with the other investigation, as in Brown and Nolet or was the HTA investigation non-existent or almost immediately abandoned? If the latter, was the change in focus due to information acquired or observations made after the stop, as in Humphrey or was it an investigative interest from the outset pursued without ever acquiring grounds that would have authorized it?

[19] In this case, on stopping the defendant, the focus and questioning immediately or almost immediately turned to the outstanding charge and bail. A police computer check was run in regard to bail conditions only. There was no evidence that any check was made re HTA matters. An HTA investigation did not run concurrently with the investigation re compliance with bail conditions – at best it reappeared much later at the station when tickets were issued. Nothing new had arisen that would have triggered and justified a change in focus away from HTA to another investigative interest.

[20] In addition, I am sceptical of the officers' sudden interest in traffic enforcement when their assigned duties were quite different and specifically included "compliance checks for bail". While no doubt a serious traffic infraction would merit their attention, that was not the case here – a young man on a bike or scooter not stopping at an all-way stop sign in a residential neighbourhood with no other traffic around. Please.

[21] Having regard to these circumstances, I am satisfied on a balance of probabilities that the minor traffic violation witnessed was a mere pretext to investigate the defendant for possible non-compliance with bail conditions and possibly other speculatively suspected wrongdoing. The stop therefore amounted to arbitrary detention.

Step #2: The Detention

[22] If I am wrong in the above conclusion, I will go on to analyze the ensuing aspects of the encounter on the assumption that the stop itself was lawful.

[23] Unlike cases of pedestrian encounters such as Grant, where the question of "detention" can be nuanced and difficult, there is no question that the stopping of the defendant's vehicle amounted to a detention within the meaning of sections 9 and 10: R v Orbanski 2005 SCC 37, [2005] 2 SCR 3.

[24] After lawfully stopping a vehicle for highway traffic purposes, the police may detain the individual for a reasonable length of time to carry out their investigation. But that investigation must be related to the purpose for the lawful stop, that is, traffic safety purposes: R v Ladouceur, [1990] 1 SCR 1257; R v Mellinthin, [1992] 3 SCR 615. This limitation applies to both random (groundless) stops and reactive stops in response to an offence: R v Rutten (2006) 2006 SKCA 17, 205 CCC 3d 504 (Sask CA); R v Acciavatti [1993] OJ No 604 (CA).

[25] I think PC Perrault recognized this limitation and immediately or almost immediately told the defendant that he was under investigative detention. He did not say what for (a violation of 10a) but I think it is apparent - and I find - that it was to check for compliance with bail conditions. However, this did not provide a proper basis for a lawful investigative detention which must be predicated on a reasonably based suspicion that the detainee is implicated in or connected to a recent or ongoing crime: R v Mann 2004 SCC 52, [2004] 3 SCR 59; see also R v Moulton (2015) 2015 ONSC 1047, 19 CR 7th 112 (Ont Sup Crt Fairburn J) where, in another case involving Peel STEP policing, the accused were stopped in a motel hallway, detained and run on CPIC to see if they were bound by any conditions they might be breaching. The Court found (para 84) that there was no valid investigative detention because "There was no crime reported and none being investigated". Similarly in this case I find that Cst. Perrault had no legal basis to put the defendant in investigative detention for a speculative bail compliance check.

[26] Was the detention nevertheless permissible as flowing from the lawful HTA stop? I think it might have been if there was any indication that the police were continuing pursuit of an HTA purpose in their inquiries. But, as per paragraph 19 above, they were not. In most cases where CPIC and local police checks are made on drivers, the inquiry includes check of licence status and other HTA matters and information re outstanding warrants, cautions and bail conditions are part of the information that is retrieved. Here the check was solely as to bail conditions. There was no concurrent or continuing[7] pursuit of the lawful HTA purpose. The fact that they came back to the HTA when they issued tickets at the station does not validate what in my view was or had become the single-purpose unauthorized detention. It was an unauthorized detention and investigation bookended by, but not connected to, an HTA stop and ticketing.

[27] In summary, even if the stop itself was lawful, in my view the defendant was soon thereafter unlawfully and hence arbitrarily detained.

10(a) Reason for Detention

[28] As noted above, Cst Perrault told the defendant that he was under investigative detention but did not give a reason. Crown counsel argues that the omission was a minor matter that made no difference to the defendant who was soon arrested for a different reason.

[29] I cannot agree. The reason for detention is important. It makes the officer think about and articulate the reason for his actions. It assists the court in determining the basis upon which police actions were taken and avoids fluidity in justification. Most importantly, it assists the detainee in appreciating his legal position for the purpose of exercising his right to counsel and, possibly, in taking appropriate action himself. In theory, if the defendant was fully conversant with the law[8] and was told that he was being detained for a bail compliance check, he could have responded that there was no authority to do so - and be on his way.

[30] The breach of 10(a) was not insignificant.

10(b): Right to Counsel

[31] The defendant's right to counsel and right to be so informed arose immediately upon his being subjected to investigative detention: R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.) and R. v. Suberu (2009), 2009 SCC 33, 245 C.C.C. (3d) 112 (S.C.C.). While acknowledging this statement of the law, I have difficulty understanding how this can work as a practical matter. For example, suppose Grant had been read his 10b rights and wanted to exercise them. Would he be given a cell phone and allowed to go behind the bushes to call and speak to counsel? Would he be taken to the police station to make the call and be patted down before transport (at which time the gun would be discovered)? What about duty counsel and interpreter situations? What is supposed to happen while waiting for call-back?

Nevertheless, the Court specifically declined to recognize a general section 1 reasonable limitation on 10b in the investigative detention context. Accordingly, non-compliance with 10b in these situations constitutes an infringement: see R v Moulton supra.

[32] There is however an exception for detentions made for traffic purposes – recognized by the Supreme Court of Canada in the breath testing context and by the Court of Appeal in relation to roadside detentions for lawful traffic investigations in general: see summary of the law in R v Humphrey supra pars 105 – 111 where this exception was applied in a dual purpose stop situation. Whether this exception applies here depends on whether it was a lawful traffic stop and detention. I have found that it was not and therefore there was a 10b violation. But if I am wrong in that then the exception would apply.

[33] In summary, on the basis of the finding that the stop and detention were unlawful, there was also a violation of section 10(b).

Step #3: The Search

[34] If the detention was unlawful, the search conducted as an adjunct to that detention would also be unlawful: R v Moulton supra. However, again, if I am wrong in my conclusion about the detention, the search must still be assessed.

[35] A lawful investigative detention does not necessarily provide authority to search. However a pat down search for officer safety may be performed if there are reasonable grounds to believe that public or officer safety is at risk and that a search is reasonably necessary in the circumstances: R v MacDonald 2014 SCC 3, [2014] 1 S.C.R. 37; R v Mann supra.

[36] In this case I think the circumstances provided the necessary reasonable grounds – the defendant's history of weapon possession plus his repeated failure to keep his hands out of his pockets – to justify a safety concern. I have some question as to whether it was necessary given the fact that there were two officers present. However, the second officer was some distance away and was not completely attentive to what was going on between Perrault and the defendant. I am satisfied that the conditions for a pat down safety search were met, if the detention was lawful.

[37] But I am not satisfied that the search was in fact a pat down search for weapons. Rather than immediately pat down and search the defendant's pockets – where suspicion that weapons may be secreted was focused – Perrault's evidence was that he directed his search at the defendant's belt line and into the front of his pants where he felt the soft, partially inflated zip lock bag which, in his experience, meant drugs. Perrault had said that he had smelled marijuana when first in the defendant's company but maintained that that played no role in his detention and search. However the way the search was carried out suggests to me that it was a search to confirm the suspected possession of marijuana and not a safety search.[9] It therefore was not authorized as a proper search adjunct to an investigative detention. It is unnecessary to determine whether the circumstances would have permitted a search for marijuana since the officer did not purport to search on that basis.

[38] My conclusion is that, even if the investigative detention was lawful and the conditions for a pat down search were satisfied, I am not satisfied that the search was carried out for that purpose and accordingly it remained a warrantless search, not authorized by law and therefore unreasonable, contrary to section 8.

24(2): Exclusion of Evidence

[39] The Grant framework for analysis of 24(2) is well known and need not be repeated here. It should be emphasized that it is the long term interests of the administration of justice that is the focus.

[40] As mentioned at the outset of this judgment, the Supreme Court has attempted to strike a balance between the interests of law enforcement and civil liberties and has emphasized that the maintenance of that balance in these encounters is crucial to a vibrant democracy. It has ceded wide powers to the police but has cautioned against their mis-use for other purposes. Viewed in this light, the police conduct is serious and its impact on the Charter protected rights of citizens is significant.

[41] Society's interest in adjudication on the merits almost always favours inclusion. However in this case we are dealing with two non-violent summary conviction offences so it cannot be said that the societal interest is particularly high.

[42] I am satisfied that the balance in this case requires exclusion of the evidence.

[43] The charges are dismissed.

Disposition

October 9, 2015

B Duncan J

M Park for the Crown

B Goldman for the defendant

Footnotes

[1] From the limited description given it seems it was probably a "motor assisted bicycle" which is a motor vehicle for most purposes under the Act: Sec 1 HTA. A helmet is required: s 104. However Wallbank for the most part referred to it as a "bicycle" and said a helmet was not required for a rider over 18, such as the defendant.

[2] A teacher had called police and alleged that the defendant, a student, had marijuana in his possession. Perrault attended and dealt with the complaint. He found a knife in the defendant's knapsack. No charges were laid.

[3] R v Nolet 2010 SCC 24, [2010] 1 SCR 851 at para 4

[4] R v Mann 2004 SCC 52, [2004] 3 SCR 59 at para 15

[5] Lafave, infra FN 6 below, Ch 1 p 124

[6] After sixty years of litigation about pretext stops and arrests, the U.S.S.C. settled the matter in 1996 in Whren v United States 517 U.S. 806. The Court held that police motive and pretext are irrelevant. The only question is whether the officer had legal authority to stop. The witnessing of a minor traffic infraction would suffice. It should be noted however that Whren was a case where drugs were seen in plain view on the passenger's lap following a traffic stop for a minor offence. The case in no way provides authority for police to interrogate or search for evidence of other criminal activity pursuant to a traffic stop. Lafave: Search and Seizure: A treatise on the 4th Amendment 3rd edition 1(4)(e), 7(5)(d) and see comment on Whren in Illinois Bar Review – 85 ILL.B.J. 488 (Google "Whren" and "pretext").

[7] See R v Nolet paras 41, 43

[8] We are obliged to presume that every defendant knows the law and reject any defence based on ignorance of it. It seems only fair to make the same presumption when to do so might work in his favour.

[9] It was similar to the search in R v Mann, found not to have been within the scope of an investigative safety search.