Court File and Parties

Court File No.: Hamilton 15-1258

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Dreni Popaj

Before: Justice M. Agro

Heard on: October 6, 2015 and October 26, 2015

Reasons for Judgment released: Thursday, November 5, 2015

Counsel:

• Mr. Nicholas White, for the Crown
• Mr. Dean Paquette, for the accused Dreni Popaj

Reasons for Judgment

Introduction

[1] Dreni Popaj is charged with possession of cocaine for the purpose of trafficking, possession of cannabis marihuana under 3 kilograms for the purpose of trafficking and possession of proceeds of crime under $5000 contrary to sections 5(2) of the Controlled Drugs and Substances Act and section 355(b) of the Criminal Code of Canada.

[2] The Crown proceeded by indictment.

[3] The defence brought a Charter challenge seeking the exclusion of evidence obtained as a result of alleged breaches in violation of sections 8, 9 and 10(a) and (b) of the Canadian Charter of Rights and Freedoms.

[4] It was agreed the evidence on the voir dire for the Charter issues would apply as admissible evidence on the trial.

[5] Admissions by the defence included the identity of the accused, the substances found on his person and their continuity, and the quantity of currency at $870.

[6] At the conclusion of the voir dire, the Crown acknowledged that there was insufficient evidence for a conviction on the proceeds charge and that count was dismissed.

[7] The Crown also acknowledged that the evidence on count 2, if admitted, would only support a conviction for simple possession of the marihuana.

[8] The defence conceded that should the Charter application fail, the quantity of cocaine possessed was consistent with the purpose of trafficking as alleged.

[9] Hence the only matter that requires determination is the Charter application.

Background

[10] At 4:33pm on 27 January of this year, Hamilton Police Services Constable Pedicone received a dispatch call to attend at the area of John Street South and Young Street in this city regarding an altercation between a white male and a black male.

[11] On arrival he was met by a civilian who provided information that the white male had an injury to the bridge of his nose and the right side of his face and that the injured male had gone to the hospital.

[12] Constable Pedicone attended at the emergency department of St. Joseph's Hospital, located two blocks south of the scene. He inquired whether a male had come in with the described injuries and was directed to a man at one of the triage desks.

Testimony of Officer Pedicone

[13] Constable Pedicone spoke with the man telling him he was investigating an assault that had taken place at Young and John Streets. He suspected from his injuries that he had been in some kind of altercation.

[14] At the officer's request to provide identification, Dreni Popaj produced his health card.

[15] It was established in cross-examination that when Pedicone approached the accused, he was talking with the triage nurse who was asking how he had been injured and what had occurred.

[16] He described the accused as compliant and responsive with the nurse and not acting up in any way.

[17] Pedicone questioned the accused while the nurse was attending to him, but did not interrupt the process.

[18] Pedicone testified that when he asked the accused how he got to the hospital, he answered that he did not remember; nor did he remember being in any altercation or know the other male involved in the altercation.

[19] He concluded the accused was "confused and acting strangely." This observation was based on the answers the accused gave to his questions and the blank stare he had when responding.

[20] Once the triage nurse was finished with an initial assessment, the accused stood and told Pedicone he needed to use the washroom.

[21] As the accused moved toward the washroom, Pedicone stopped him and asked if he had any weapons. Pedicone recorded the response in his notes as "I don't know".

[22] Pedicone stopped Popaj and informed him that he was under investigative detention at 4:58pm.

[23] He gave these reasons for the detention:

• he was satisfied that Popaj was involved in the altercation he was called upon to investigate
• he had received little information from Popaj about the altercation or the other male
• he didn't know if he was the victim or the aggressor
• when asked about weapons, the accused answered "I don't know"
• and because of the "accused's level of confusion and the possibility of a brain injury."

[24] Pedicone then did a pat down search of the accused's outer clothing to ensure his own safety and that of the accused, hospital staff and members of the public.

[25] In the area of the left front pocket of the accused's jacket he felt an odd shaped piece of metal and then a hard object with a curved edge which came to a point.

[26] Pedicone believed that item might be an edged weapon, possibly a knife, and went into the pocket. He retrieved a key lanyard with a large key and metal Eiffel tower trinket and three individually wrapped pieces of what he believed to be cocaine. The largest piece was a half moon shape of 5 centimeters in length that tapered to a point at one end. That piece was weighed at 14.3 grams.

[27] Pedicone immediately arrested the accused for possession of cocaine for the purpose of trafficking. The search continued and Pedicone located a baggy of marihuana, which weighed 2.6 grams, a cell phone and Canadian currency.

[28] At 5:02pm the accused was read his rights to counsel and caution.

[29] Pedicone handcuffed Popaj and remained with him for 39 minutes in the triage area until he was transferred to room 35 to await a CT scan.

[30] Pedicone noted at 5:05pm that the accused seemed more clear headed.

[31] After the CT scan, the accused was taken back to room 35. Pedicone remained with him until 6:45pm when he was relieved by another officer.

Testimony of the Accused

[32] Popaj denied being in any altercation with anyone.

[33] He said that he drove to the hospital after slipping and falling while playing basketball outside with his brother. He had struck his head and scraped the right side of his face on a curb between the driveway and grassy area where the net was located and aside from a headache, he was feeling "pretty normal."

[34] Popaj testified that while the triage nurse was taking his blood pressure, Pedicone walked up to him and accused him of being involved in a fight down the street. He responded, telling Pedicone he didn't know what fight he was talking about and no, he wasn't involved in any altercation of any kind.

[35] Once the triage was complete, Popaj got permission from the nurse to use the washroom. As he started walking in that direction, Pedicone stopped the accused and asked if he had any weapons in his pockets. According to Popaj, he raised his hands and told Pedicone "I don't know what you're talking about, I wasn't part of any fight" and took a few steps to the washroom. Pedicone then grabbed him by the left shoulder and told him he was going to search him.

[36] Popaj was wearing what he described as a "puffy" Canada Goose jacket. In his pocket were his car keys on the lanyard with the Eiffel tower trinket, his cell phone, identification and the cocaine. He maintained Pedicone went straight into his right jacket pocket and pulled out the key lanyard with the Eiffel tower trinket and then removed the cocaine.

[37] Popaj testified that Pedicone did not conduct any preliminary pat down search but went directly into his pockets.

Applicable Law

1. Detention: Section 9 of the Charter

The governing principles that guide the scope of police powers on an investigative detention and search were first set out in R. v. Waterfield, [1964] 1 Q.B. 164 and adopted by the Supreme Court of Canada in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59.

The test for determining whether an investigative detention is justifiable under those authorities is "reasonable suspicion." An investigative detention must be viewed as reasonably necessary on an objective view of all the circumstances informing the officer's suspicion that there is a clear nexus between the prospective detainee and a recent or ongoing criminal offence: Mann, at para. 34.

In that analysis, a court assesses the overall reasonableness of the detention decision in all the circumstances, most notably:

i. the extent to which the interference with individual liberty is necessary to perform the officer's duty;

ii. the liberty that is the subject of the interference; and

iii. the nature and extent of the interference.

Mann, at para. 34.

According to Mann, the investigative detention must be executed in a reasonable manner to be found justifiable. It should be brief, and does not carry with it an obligation on the detained individual to answer questions posed by the police: Mann, at para. 45.

2. Right to be Informed of the Reason for Detention and Rights to Counsel: Section 10(a) & (b)

An investigative detention triggers Charter rights under sections 10(a) & (b) and are considered related.

A detainee must be informed of the reasons for the detention so he might make an informed decision whether to exercise the right to counsel and to obtain legal advice based on a proper understanding of the jeopardy he faces: R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 (S.C.C.), R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33 (S.C.C.).

The phrase "without delay" in s. 10(b) informs both subsections and means immediately: Suberu, at para. 40 & 41.

3. Warrantless Search: Section 8 of the Charter

Any search incidental to the limited police power of investigative detention is necessarily a warrantless search and presumed to be unreasonable unless justified, and found reasonable, pursuant to the test established in R. v. Collins, [1987] 1 S.C.R. 265.

Under Collins, warrantless searches are deemed reasonable if:

i. they are authorized by law

ii. the law itself is reasonable, and

iii. the manner in which the search was carried out was also reasonable (p. 278).

However, a search incidental to investigative detention does not exist as a matter of course: Mann, at para. 40.

[39] The Supreme Court of Canada held in Mann that safety searches incidental to investigative detentions can be justified when an officer believes on reasonable grounds that his or her own safety, or the safety of others, is at risk.

[40] However, the Mann standard of reasonable suspicion that safety is at risk seems to have been ratcheted up to reasonable belief that safety is at stake: R. v. MacDonald, 2014 SCC 3, 2014 S.C.C. 3.

[41] In writing for the majority, Lebel stated at para 37 of MacDonald:

To determine whether a safety search is reasonably necessary, and therefore justifiable, a number of factors must be weighed to balance the police duty against the liberty interest in question. These factors include:

1. the importance of the performance of the duty to the public good (Mann, at para. 39);

2. the necessity of the interference with individual liberty for the performance of the duty (Dedman, at p. 35; Clayton, at paras. 21, 26, and 31); and

3. the extent of the interference with individual liberty (Dedman, at p. 35).

If these three factors, weighed together, lead to the conclusion that the police action was reasonably necessary, then the action in question will not constitute an "unjustifiable use of ...police power[s]" (Dedman, at p. 36). If the requirements of both stages of the Waterfield test are satisfied, the court will then be able to conclude that the search in question was authorized by law.

[42] The majority went on to reset those factors with the refinement at paras 39 & 40 that reasonable necessity must be grounded in an officer's reasonable belief that the detainee is armed and dangerous and that the search is reasonably necessary to eliminate an imminent threat to his or her safety or that of the public.

[43] This apparent change in standard was the subject of comment by the minority in MacDonald who, although agreeing in the result, felt the majority's decision had changed the standard for safety search from reasonable suspicion to reasonable grounds: MacDonald: paras 66-71 & 77.

[44] As was characterized by the minority at para 91 of MacDonald:

We should be clear about the consequences of the majority's decision: officers are deprived of the ability to conduct protective searches except in circumstances where they already have grounds to arrest. As of today, officers are empowered to detain individuals they suspect are armed and dangerous for investigatory purposes, but they have no power to conduct pat-down searches to ensure their safety or the safety of the public as they conduct these investigations.

[45] The Ontario Court of Appeal in R. v. Peterkin, 2015 ONCA 8 declined to decide whether MacDonald changed the standard in Mann, without specifically overruling it, as that court found the evidence in their case satisfied even the MacDonald test.

[46] MacDonald is binding on me. That the facts are distinguishable, MacDonald being a freestanding search as opposed to an investigative detention, do not detract from the general principles set out as they relate to section 8 of the Charter. Certainly the minority were of the view that those principles were not case specific but applicable generally to protective searches.

Assessment and Analysis of the Evidence

[47] There are some troubling aspects to Officer Pedicone's testimony when viewed through the lens of the principles governing the interpretation and application of Charter rights.

[48] When cross examined about his reasons for detaining Popaj, Pedicone stated that he assumed from the injuries that Popaj was involved in the altercation he was sent to investigate and if not that one, "he was involved in some other altercation."

[49] However he had no other identifying information about the white male, no information that weapons were used in the altercation, and no information about how the white male got to hospital, and his questioning of Popaj did little to inform his assumption.

[50] Pedicone testified that he was able to overhear the nurse's questions to Popaj about how he had been injured and what had occurred, yet he did not take notes of those questions nor any note of the accused's answers as he did not consider them "relevant" to his investigation.

[51] I find that response to be disingenuous in the least and at worst evidence of a nonfeasance or negligent disregard for his then responsibilities.

[52] There was also an internal inconsistency in his observations of Popaj's behaviour. On the one hand he found Popaj to be compliant and responsive to the nurse's questions but his assessment that Popaj was confused and acting strangely factored into his decision to detain and search.

[53] Popaj's testimony about his condition and the fact that hospital staff took no steps to isolate him or perform any immediate intervention or treatment leads me to find that Popaj was indeed responsive, clear headed and concise throughout his dealings with both hospital staff and Officer Pedicone.

[54] Officer Pedicone's notes of the accused's responses to his questions were cryptic: a series of "I don't know." I accept the evidence of the accused that his answers and statements were more fulsome as he testified.

[55] The most troubling testimony from Pedicone came in the course of his cross examination and appears at page 27 of the transcript at lines 15 to 32 and at page 28, line 1:

Q. ...Can you characterize the way he spoke?

A. As I said he said I don't know and he appeared confused, so it seemed to me that either he did not know legitimately is what I felt that…[indiscernible]…'cause he said that he didn't know so I was under the assumption he did not know what happened regarding any altercation; did not know how he attended at the hospital; did not know if he had any weapons.

Q. Now you decided you were going to search him?

A. Yes I placed him under investigative detention.

Q. So you could search him, correct?

A. So I could do a pat down for public safety, yes that's correct.

Q. And at that stage you had no information to believe that he was in position [sic] of a weapon, just repeat that, okay.

A. No.

Q. So you patted him down?

A. Yes.

On this testimony I find that Pedicone's purpose in affecting the detention was to search Popaj for weapons.

[56] As for the search itself, I do not accept Pedicone's evidence that he felt a sharp edged object that he believed to be a weapon from a pat down search of the accused's jacket. It was January. The accused was wearing a goose down jacket, "puffy" as he described it. I doubt that the outline of either the Eiffel tower trinket or the half moon shape of the piece of cocaine could be readily discernible from a pat down over a goose down jacket.

Analysis of the Evidence and Findings

1. Has the Accused Established on a Balance of Probabilities that the Detention was Unlawful and Section 9 of the Charter Breached?

[57] It is clear that officer Pedicone was in the execution of his police duties when dispatched to investigate the altercation. He was duty bound to assist victims of crime and apprehend offenders who may lawfully be taken into custody: Police Services Act, R.S.O. 1990, c. P.15, s. 42(1).

[58] It was reasonable for Pedicone to attend at St. Joseph's Hospital to seek out a white male with head injuries as it was closest to the scene of the altercation.

[59] So too was it reasonable that he make some inquiries at the hospital and question Popaj.

[60] That questioning though did not advance his investigation of that or any other altercation. There were no objectively discernible facts that would ground a suspicion that a crime had been or was about to be committed by Popaj.

[61] I find that detaining Popaj while he was en route to the washroom was an unjustified and arbitrary breach of s. 9 rights.

[62] Pedicone was operating under a focused hunch that led to the discovery of the drugs.

2. Has the Defence Established on a Balance of Probabilities that the Accused's Rights Under Section 10(a) & (b) of the Charter Were Breached?

[63] There was no evidence presented that once detained, Popaj was ever advised of the reason for that detention or that he had the right to consult counsel respecting that detention.

[64] The authorities are clear that such rights arise immediately and must be afforded accurately and completely. It is insufficient that Popaj might have inferred the reason for the detention from the subject matter of Pedicone's questions.

[65] Although Popaj did not testify directly about a breach of s. 10 rights, his affidavit in support of the application, paragraphs 5, states:

5. The officer did not tell me why he was going to search me, although I was asking. He did not tell me I had a right to counsel. Nor did he provide me with an opportunity to consult counsel.

[66] He identified and swore to the truth of the contents of that affidavit in his examination in chief. He was not cross examined on that allegation and Crown counsel acknowledged in argument that there were no rights to counsel afforded on detention.

[67] Although Pedicone provided Popaj with rights to counsel and caution on arrest, he did not during his subsequent 39 minutes with the accused at the hospital, provide him with an opportunity to consult counsel in private even though Popaj had his own cell phone.

[68] Pedicone did not address s. 10 issues in his testimony either in chief or in cross examination.

[69] While the evidence is not fulsome I am satisfied there is some uncontradicted evidence of a breach of s. 10(a) & (b) rights on a balance of probabilities.

3. Has the Crown Established on a Balance of Probabilities that the Search Without Warrant was a Lawful Search Incident to Investigative Detention and Not a Breach of s. 8 of the Charter?

[70] Pedicone's statement that he searched Popaj for personal and public safety reasons rings hollow by either of the Mann standard of "reasonable risk" or that set out in MacDonald of reasonable belief that safety was "at stake".

[71] Popaj was not creating a disturbance or nuisance in the emergency room, nor did he demonstrate any non-compliant behaviour that would cause him to suspect or believe that he was carrying a weapon that he might use on him or any member of the public.

[72] Pedicone had no objectively discernible information that would support a suspicion or belief that a weapon was used in the altercation by either of the two participants.

[73] I am satisfied there was a clear breach of the accused's s. 8 Charter rights.

Do the Charter Breaches Warrant Exclusion Under s. 24(2) of the Charter?

[74] Clearly the drugs are real evidence that was obtained in a manner that infringed the accused's Charter rights.

[75] The core concern under s. 24(2) is whether the admission of that evidence, having regard to all the circumstances, would bring the administration of justice into disrepute.

[76] In following the Grant analysis, three lines of inquiry are required to be balanced to assess that measure:

1. The Seriousness of the Charter Infringing Conduct

[77] This inquiry addresses the need for a court to uphold the law and distance itself from Charter breaching conduct.

[78] Citizens have a reasonable expectation that police will respect the limits of their authority. And it is for those sworn officers to know those limits.

[79] Officers who fail to do so lose the respect and confidence of those whom they are sworn to serve and protect. Courts and the rule of law are also put at risk of loss of public confidence should they fail to dissociate from Charter breaching conduct.

[80] Pedicone's conduct led to three serious breaches of Charter rights, each unfolding as the result of the first.

[81] He was unable to articulate a reasonable belief or suspicion that would have supported a detention.

[82] He simply saw a white male with facial injuries and focussed on him on the assumption that he had been in an altercation.

[83] He failed to advise Popaj the reason for the detention or afford rights to counsel.

[84] As stated by Duncan, J. in R. v. Gayle, 2015 ONCJ 575:

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.

[85] His sole purpose in detaining Popaj was to allow a search of his person.

[86] Beyond stating that in his experience persons involved in assaults often have weapons, he was unable to articulate any grounds for suspicion that his safety or that of members of the public was "at risk", according to the Mann standard or "at stake", according to the MacDonald standard.

[87] He was quite blatantly operating on a focussed hunch.

[88] There was no urgency or other extenuating circumstances to excuse or justify Pedicone's conduct in this investigation.

[89] While I do not find any bad faith on Pedicone's part, neither can his conduct be equated with good faith. His misfeasance demonstrates a negligent disregard for limitations on police investigative powers and the Charter rights of those he is investigating.

[90] This was addressed in Grant at para 75:

Ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith: R. v. Genest, [1989] 1 S.C.R. 59 at p. 87, per Dickson, C.J.: R. v. Kosech, [1990] 3 S.C.R. 3, at pp. 32-33 per Sopinka, J.; R. v. Buha, 2003 SCC 30, [2003] 1 S.C.R. 631 at para. 59. Willful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge.

[91] An officer's lack of reasonable grounds to undertake an investigative step is a particular example of failure to adhere to the rule of law and was identified as a significant aggravating factor in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para 24.

[92] I find these breaches to be very serious.

2. The Impact of the Charter Breach on the Protected Interests of the Accused

[93] I find Pedicone's arbitrary detention and warrantless search to have impacted the accused's privacy and liberty interest.

[94] There is a high degree of privacy in one's person and unlawful search of one's person by going into one's pockets is a more serious intrusion, for example, than a warrantless search of one's motor vehicle.

[95] However the accused's injuries were incurred, he was at the hospital for attention to those injuries. Absent exigent circumstances, which do not exist here, he had a right to be free of state intrusion while doing so.

[96] Pedicone interfered with the accused's privacy in that setting and his liberty to use the washroom when required.

3. The Value of a Trial on the Merits

[97] This factor in the analysis speaks to society's interest in the adjudication of these charges on the merits.

[98] The principle factor is the reliability of the evidence sought to be excluded.

[99] The certificate of analysis filed verifies the high reliability of the evidence found by officer Pedicone. The Charter violations do not affect that reliability and favour admission.

[100] The evidence is also of significant importance to the Crown. Without it, the Crown's case is gutted.

[101] Of the charges this accused faces, possession of cocaine for the purpose of trafficking is the most serious.

[102] Drug use underlies much of the crime that takes place in this city and this community has a high level of interest in encouraging police detection and apprehension of those who would contribute to the problem.

[103] The seriousness of the offence though is not a determinative factor and has been held to cut both ways.

[104] In Grant, the majority wrote at para 84:

The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[105] And similarly in Harrison the court stated that the seriousness of the offence must not take on disproportionate significance: para 34.

[106] I find the seriousness of the offence in this instance to be neutral in this portion of the analysis.

4. Balancing

[107] Harrison characterizes the balancing mandated by s. 24(2) to be a qualitative rather than a quantitative exercise, with neither police misconduct nor truth seeking interests of the criminal justice system trumping the other.

[108] The aggravating factor here though is the number of serious breaches that speak to a level of negligence by this officer in having failed to ensure and articulate his reasonable grounds for the detention and search in the first instance. They are broad and they are significant.

[109] For these reasons I find that the admission of the fruits of these breaches into evidence would bring the administration of justice into disrepute.

[110] All charges against Mr. Popaj are dismissed.

Released: November 5, 2015

Signed: "Justice M. Agro"