Court Information

Court: Ontario Court of Justice

Date: June 17, 2016

Before: Justice H. Borenstein

Heard: April 4, 5, 6 and May 10, 2016

Reasons for Judgment Released: June 17, 2016

Parties

Between:

Her Majesty the Queen

— AND —

Christopher Charles

Counsel

For the Crown: Ms. J. McNabb

For the Defendant: Mr. G. Partington

Judgment

Justice H. Borenstein:

Overview of Charges

[1] Christopher Charles is charged with fraud, forgery and related offences all arising out of his attendance at a Future Shop where he tried to buy two cell phones using a forged Quebec driver's licence as identification. The licence had his photo on it but was in the name of Dario Duclos. The salesperson was suspicious. The police were called and attended the store. They questioned him. Searched his laptop bag. Removed his car keys and looked for this car in the parking lot to try to confirm his identity. He was arrested for fraud and obstruct police. He is alleged to have consented to the police searching his car to prove he was who he said he was. In his car were envelopes containing several different identification packages with different identities, some with photo identification of the accused. There were allegedly forged cheques in those packages made out to those persons.

[2] The accused alleges that the search of his car violated his Charter rights and the evidence should be excluded. He argues that he did not obstruct the police. He concedes the attempted fraud at the Future Shop.

Factual Background

[3] Turning to the evidence in a little more detail.

The Future Shop Incident

[4] Ms. Jessica Bourque was the sales clerk. The accused said he wanted to buy two cell phones. It was to be a "zero dollar" purchase meaning he would leave the store with the phones without having put any money down. He would be billed for the phone throughout the term of the contract.

[5] He said his name was Dario Duclos. He was from Quebec. He presented two pieces of identification in that name including the Quebec driver's licence complete with his photograph. The licence did not feel right to Ms Bourque. He could not provide further details which made Ms. Bourque even more suspicious. She spoke to her manager and the police were called. She stalled until the police arrived. When they did, they went over and handcuffed the accused fairly quickly. The cell phones never left the store.

Police Response and Initial Detention

[6] Constables Howard and Astopkovitch received a dispatch at 5:26 pm. They were told there was a fraud in progress at the cell phone department at Future Shop and the suspect was using fake identification to get a cell phone. When they arrived, a employee met them in the parking lot and told them the suspect was still in the store. The employee handed them the Quebec driver licence in the name of Dario Duclos. The officers ran checks on that licence in the police database but nothing came up. P.C. Howard thought the identification was fake.

[7] Howard and Astopkovitch entered the store. Astopkovitch faced the accused while Howard stood behind. Astopkovitch spoke with the accused for about two minutes and then told him he was being detained for fraud in relation to the cell phone purchase. He was read his right to counsel and caution. He said he wanted to speak to a lawyer.

Search of Laptop Bag and Seizure of Car Keys

[8] P.C. Howard saw the accused's laptop bag on the counter. He looked through it looking for documents that would prove the accused's identity. He testified that he needed to confirm the accused's identity before considering "release or anything else". He found no documents in the bag which raised his suspicion even further. The accused was asked how he got to the store and said he drove his mother's car. He said he was moving to Toronto but did not yet have an address so still had his Quebec driver's licence. Astopkovitch was going to run further checks in the cruiser. P.C. Howard told the accused he would be handcuffed for officer safety since it would just be he and the accused in the store. He conducted a pat down search on the accused and found the accused's BMW car keys. The accused was asked and confirmed that they were his car keys P.C. Howard handed the car keys to Astopkovitch to check the plate to see if the accused was telling the truth.

Escalation and Arrest

[9] Astopkovitch returned and said there was no Dario Duclos on any system. P.C. Howard cautioned the accused about obstructing police and told him that if he continued using a false name, he would be charged so he had better tell the officer his correct name. The accused then said his name was Samuel Charles. Due to the number of people looking on, Howard decided to take the accused to the cruiser for privacy. The accused was placed in the rear of the cruiser and Howard drove the cruiser next to the BMW in the parking lot. Officer Howard testified that he obviously wanted to take a look at the car to confirm the plate and "things like that". Howard cautioned the accused again telling him he needs to be truthful about his name. The accused then said his name was Christopher Charles. Given that this was the third name given, at 5:40 p.m., ten minutes after entering the store, Officer Astopkovitch arrested the accused for obstruct police and fraud.

Search of Vehicle

[10] P.C. Howard testified that the only way he would believe the accused was Christopher Charles was if he had concrete proof. He testified that, upon arrest, the accused said: "I have ID in the car that can prove my name. you are more than welcome to look". Astopkovitch replied: "do you consent to me searching your car?" The accused said: "Yes, go ahead".

[11] As we all now know, the car contained numerous pieces of false identification.

[12] The officers unlocked the car. Astopkovitch entered and returned with a plastic card as Howard was getting out of the cruiser. Howard then entered the cruiser to lock it up as he was responsible for its contents. He wanted to close the windows and sunroof. He also wanted a second set of eyes looking for identification. He entered and saw the centre console open. He saw two cell phones and a large quantity of plastic bank cards. He grabbed them to examine them in the cruiser. He saw a big pile of papers and an envelope with a cheque poking out of it on the side of the driver's door. He took that as well.

[13] One of the envelopes was in the name of Bennie Mckenzie. It contained a driver's licence in that name with a photo of the accused on the licence. There was a bill from Rogers in that name and four cheques made out to Bennie Mackenzie. In another package, there was a Rogers bill in the name of Dario Duclos together with a Mastercard in that name and four cheques payable to Mr. Duclos. There was a SIN card in that name as well. There was also a driver's licence in the accused's own name, Christopher Charles. In another package was a Rogers Bill in the name of Andre Charles.

Inventory Search Justification

[14] P.C. Howard then went into the Future Shop and told the employee that the suspect was in custody and his car was parked in the parking lot. He told the employee that, if he did not want the car parked there, he, meaning P.C. Howard, could arrange to have it towed. The employee did not want the car parked there. Since it was now going to be towed, Howard testified that it was now necessary to conduct an inventory of its contents. However, since he had already gone into the car and saw nothing else of value, he did not need to re-enter the car to conduct an inventory search

[15] P.C. Howard was asked what authority he had to enter and search the accused's car. He replied that he had the accused's consent, which the officers never even asked for. Further, he had the right to conduct an inventory search of the car since it was going to be towed.

Cross-Examination of Police Officers

[16] In cross examination, P.C. Howard agreed that he believed he was dealing with a false name when he entered the Future Shop. He agreed that he not have permission to look inside the laptop bag.

[17] He was cross examined about whether he stated or implied to the accused that he would not be charged if he gave his real name. The officer rejected that assertion indicating that the accused was committing fraud. He explained that he was just telling the accused that he was in jeopardy if he continued using a false name.

[18] The officer explained that he had to check two false names. It became clear that the first name, Dario Duclos, was first checked before they entered the store but, on Howard's evidence, his partner went out to check it a second time. He further explained that he thought the second false name, Samuel Charles, was probably checked by his partner.

[19] He denied the suggestion that he asked the accused whether there was any guns or drugs in his laptop bag. He also denied telling the accused that they were going to search his car so he better confess if there were any guns or drugs in the car.

[20] He denied that the accused gave his real name as they entered the police cruiser. It was not until they drove the 50 feet to the BMW before he gave his real name.

Constable Astopkovitch's Evidence

[21] P.C Astopkovitch testified. Upon entering the Future Shop, he told the accused he had grounds to believe he was using fake identification and was being detained. The accused insisted he was Dario Duclos. He read him his right to counsel and caution. The accused said he wanted to speak to a lawyer. They asked him a few questions and learned he had a BMW in the parking lot. They took his keys and found the car, probably by pressing the car alarm though he was not certain. His notes were vague but he probably ran the licence plate. He re-entered the store and informed P.C. Howard what he learned. Howard cautioned the accused and the accused said his name was Samuel Charles. They went out to the cruiser. In response to another caution, the accused said his name was Christopher Charles and he had identification in his car to prove it. This was said before he was arrested. He did not believe that was in response to anything the officers' said.

[22] Astopkovitch entered the BMW and, in the centre console, saw several identifications and 2 blackberries. He also saw a driver's licence in the name of Christopher Charles. P.C. Howard went back to the store while Astopkovitch and the accused remained in the car.

Booking and Legal Representation

[23] In an agreed statement of fact, the accused arrived at the station around 7 pm and told the booking officer that he wanted to speak to a lawyer. He spoke to a lawyer at 9 p.m.

Accused's Evidence on Charter Application

[24] The accused testified on the Charter motion.

[25] He works primarily as model. He had a criminal record from 2006 and had just received notice that he was to receive a pardon. He travelled to Toronto to arrange the pardon. He was using his mother's car.

[26] On the date in question, he was depressed. He went into the Future Shop. He wanted to purchase a phone but told the salesperson that he had bad credit. She said he would have to pay for the phone in full and needed two pieces of identification. He said all he had was "this" and produced the identification in the name of Dario Duclos. She took the identification and he waited for about fifteen minutes. The police then arrived.

[27] The accused was panicking. He had waited so long for the pardon and felt that he had much to lose. The officer said: "do you know why we are here". He replied: "I don't know what you are talking about. I know my rights. I want to talk to a lawyer". The officer told him to "cut the bullshit" and they knew he was not who he said he was. He said he knew his rights and wanted to speak to lawyer. He was ignored. The officers looked in his laptop bag, searched him and took his car keys and gave them to Astopkovitch who went outside.

[28] When Astopkovitch returned, he spoke to Officer Howard. Howard then told the accused that if he keeps lying about his name, he will be charged. The accused was stressed and blurted out his brother Samuel's name. The officer arrested him and began taking him out of the store. As they got to the cruiser, he gave the officers his correct name. Howard asked it if was his real name and the accused swore that it was his real name and said he needs a lawyer. His request for a lawyer was ignored.

[29] The officers then searched the accused's car for 10-15 minutes and returned to the cruiser. The accused never consented to the search of his car.

[30] Even though he was testifying only on the Charter motion, the accused gave evidence explaining how he intended to give all of those documents seized from his car back to a person in Quebec. Although not material to the Charter application, I can indicate that, as a result of the cross examination, I completely reject the accused' evidence in this regard and that impacts on my assessment of his credibility.

[31] Returning to his evidence material to the Charter application. He testified that when the officers returned to the cruiser with the documents seized from the car, he tried to explain that they were intended for garbage. He also told them they had no right to search his car and he wanted a lawyer but, again, his requests were ignored. He testified that he had to wait for hours to speak to a lawyer.

[32] He testified that the sunroof in the BMW was broken when they bought the car used. It has never opened. Further, there was no alarm on the BMW that could be activated by pressing the fob.

[33] That, essentially, was the evidence called.

Crown's Submissions

[34] The Crown submits it has proved its case on all counts.

[35] She seeks a conviction for attempted fraud at the Future Shop rather than fraud. Moreover, he was using a forged Quebec driver's licence as if it were genuine. The Crown further submits the accused obstructed both officers by giving a false name. Further, the documents seized and which are subject to the Charter application plainly establish his guilt on the remaining counts.

[36] The Crown submits that the search of the car that yielded the impugned evidence was a lawful search based on the accused's consent. It was also a lawful inventory search. The Crown initially submitted that the search was also lawful as incident to arrest. However, on reflection, the Crown disavowed that basis for the search on the basis that the police never subjectively believed they were searching incident to arrest. If the search was unlawful, the evidence should not be excluded as the officers were acting in good faith and the evidence is reliable and essential to the Crown's case on the relevant charges.

Defence Submissions

[37] The defence challenges everything in this case including continuity. Continuity has been established.

[38] The defence submits the search of the car was unlawful and the evidence seized should be excluded. He submits the attempt fraud has been made out but argues the obstruct charges were not as the conduct was, essentially , de minimis .

Court's Findings

[39] Turning to my findings in this case.

[40] Many of the facts are not in dispute other than what happened between the police and the accused in the store and in the cruiser.

Credibility Assessment

[41] I have significant concerns with the credibility of the accused in various respects. In cross-examination, he downplayed his criminal record to such an extent that it diminished his credibility. I will not recount the details. It is obvious to anyone hearing his evidence.

[42] Likewise, the way the accused answered the crown's simple question about whether he believed the police wanted to know his real name further damaged his credibility as a witness. Likewise, his continual resort to the fact that he has waited so long for a pardon when that was not the question being asked of him.

[43] I have concerns with respect to the officers' evidence regarding some of the events in the store and the conversation leading to the search of the car.

Charter Application

[44] I will begin with the Charter application

[45] The accused testified on the Charter motion.

[46] I do not accept his evidence in many respects but believe, based on aspects of his evidence and even based on the officers' evidence, that his rights were violated several times in several ways.

[47] First, by searching his laptop bag. Second, by removing the key from his pocket as part of a pat down search and then giving that key to Astopkovitch to find the car. Third, by continuing to ask the accused questions even though he wanted to speak to a lawyer, and finally, by searching his car without his consent. While I do not accept most of the accused's evidence, I do accept that he did not consent to the search of his car. Just as he did not consent to the search of his person or his laptop bag. I accept his evidence in relation to the search of the car for the following reasons. First, he knew he had illegal material in his car so it is extremely unlikely he would have offered the police the opportunity to search it. Second, the police were always very interested in the accused's car. This was apparent for three reasons; one from the time they removed his keys from his pocket and went looking for the car, two, the officer's evidence that they were obviously interested in the car, three; upon entering the cruiser, they drove immediately to the accused 's car. So their interest in the accused's car is the second reason I prefer the accused's evidence concerning the search. Thirdly, the police failed to respect the accused s.8 rights as it related to the searches of his laptop bag and the seizure and use of his car keys and his 10(b) rights by questioning the accused after he said he wanted to consult with counsel. They demonstrated a pattern of ignoring and violating his rights in their exchange with him that day. So while the accused was undoubtedly trying to perpetrate a fraud at Future Shop and had forged documents in his car for reasons that were fraudulent, and while I generally did not find him to be a particularly credible witness, I do accept that they searched his car without his consent. They searched his laptop bag contrary to section 8, likewise, the seizure of his car keys which were then used to look for his car violated section 8 as was the search of the car without his consent. I do not accept that the car was entered for the purpose of an inventory search. In fact, at the time of the search, the officer did not even know the car would be towed. The accused's right to counsel was also violated when they questioned him about how he got to the store and his car after said he wanted to speak to a lawyer.

Exclusion of Evidence

[48] Given the repeated deliberate violations of his Charter rights, the evidence seized from the car must be excluded pursuant to s. 24(2). The officers ignored the limits of search powers when they looked inside his laptop bag, when they found and removed the keys and then went looking for the car and by the entry and search of the car without consent or authority. The questioning following his assertion that he wanted to speak to counsel aggravates the seriousness of the breaches. The actions in question were not inadvertent. The officers questioned him and learned about his vehicle even though he told them he wished to consult with counsel. The violations were serious and deliberate.

[49] The impact upon the accused's right to be secure from unreasonable search and seizure was not insignificant. He had a privacy right, albeit a diminished one, in his car which was ignored when the officers entered and searched his car. That search then yielded the evidence the Crown now seeks to tender to support the charge.

[50] That evidence is certainly reliable and is necessary to support the charges which militates towards admission but given the seriousness of the violations in particular, my view is that the evidence must be excluded. The court must distance itself from the evidence obtained in this fashion.

[51] Accordingly, absent that evidence, charges four, seven and eight will be dismissed.

Obstruct Police Charges

[52] Turning to the final two counts – the two counts of obstruct police.

[53] The police entered the store around 5:30 p.m. They had already seen and run the driver's licence in the name of Dario Duclos before they entered the store. They believed they were dealing with a fake identification. That is what they were investigating. Astopkovitch spoke to the accused. He had a very vague recollection of the conversation but testified the accused insisted he was Dario Duclos. P.C. Howard either did not hear the conversation or had no recollection or notes of the initial conversation. Howard testified that his first conversation with the accused about identification occurred just after he cautioned him when Astopkovitch returned to the store having left with the accused'c car keys. Howard cautioned the accused who then said his name was Samuel Charles. They then walked to the cruiser. The accused said he told PC Howard his real name moments later as they got to the cruiser. P.C. Howard testified that the accused gave his real name when they drove 50 feet to the accused's car. Even on P.C. Howard's evidence, there was only a few minutes at most between the utterance to Howard of the name Samuel Charles and giving his real name when he was arrested at 5:40. Astopkovich's evidence that the accused insisted he was Dario Duclos was poorly supported by the overall unreliability of his recollection of the events and conversation in the store. He did not recount what words the accused spoke. He summarized that he insisted he was Duclos. There is no indication of what the accused said specifically or what questions were asked. In fact, the overall recounting of the exchange inside the store was vague and I would not comfortably rely upon it. Moreover, there are contractions between the two officers as to who was speaking to the accused and about what and how the keys came to be taken from the accused. I am not faulting their credibility on this point, just their reliability. To reiterate, the officers entered the store knowing the accused was going by the name Dario Duclos. They ran that name prior to entering the store. Howard did not conduct any further checks on any computer. It is likely Astopkovitch ran that name a second time but he was vague on that point. What is clear, and what I accept, is that ten minutes past between the time the officers entered the store believing the accused had given a false name to the clerk to his telling the police his real name. In that time, the evidence of the conversation in the store is vague and unreliable. I accept the accused told P.C. Howard his name was Samuel Charles and corrected that within minutes at most. Even when he gave the real name, the officers had to do some checking to confirm it. There is no evidence that anything more than, possibly, a further computer check was done but even that is vague on the evidence. So, while there were grounds to arrest for obstruct police, the question is whether I am satisfied beyond a reasonable doubt that the accused committed that offence.

Legal Test for Obstruct Police

[54] Section 129(1)(a) sets out the offence. It provides that:

Every one who

(a) resists or willfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer,

[55] There are three elements to the offence of obstructing a peace officer in the execution of his or her duties:

(1) the accused must obstruct the office;

(2) the obstruction must have affected the officer in the execution of a duty that he was then executing; and

(3) the person obstructing must have done so wilfully.

[56] See R v Tortolano, [1975] O.J. No 1055 (Ont. CA) at para 12 and R v. Khan, (2014) Ont. Sup Ct. No 6541 per Dawson, J. at para 32

De Minimis Principle

[57] Lying to the police is not itself a crime. The offence requires that the conduct in question, the obstruction, affect the officer in the execution of his duties. As noted by Dawson, J. in Khan, obstruct police is a result crime rather than a conduct crime. Did the lie in question obstruct the officers in the execution of their duties in any appreciable way. In Khan, Dawson J conducted an extensive review of the authorities and concluded that the de minimis principle ought to be available when assessing the factual question of whether an obstruction affected the officer in the execution of his or her duties. At paragraph 68, he held:

"One thing all of the cases in this line of authority have in common is that the lie told as to identity was perceived by the trier of fact to have affected the work of the police to a very limited extent, or in some cases not at all. A common feature of the competing line of cases, perhaps not surprisingly, is a lie told as to identity which occurred in circumstances that were perceived by the trier of fact to have been more serious or to have had a greater impact on the work of the police."

"A review of the competing line of authority made no allowance for the de minimis principle."

[58] In this case, I am not satisfied beyond a reasonable doubt that obstruction had any affect beyond de minimis to the work of the police. The effect on the officer was so minimal that it amounted to no obstruction. He will be found not guilty of the two counts of obstruct police.

Verdict on Fraud and Forgery Charges

[59] There is no doubt he was attempting to commit fraud at the Future Shop using a forged Quebec driver's licence which is also was property obtained by the commission of an offence crime. He will be found guilty of count one, two and three. Count three will be stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729. He will be found not guilty of all remaining counts.

Released: June 17, 2016

Signed: Justice H. Borenstein