Court Information

Court: Ontario Court of Justice Date: September 8, 2016 Region: Toronto Region – College Park

Between: Her Majesty the Queen — AND — Tyrone Hines

Before: Justice M. Wong

Heard: August 29, 2016

Reasons for Judgment Released: September 8, 2016

Counsel

A. Leggett — counsel for the Crown

V. Paskarou — counsel for the defendant Tyrone Hines

Judgment

Wong, J.:

Facts

[1] Tyrone Hines pleaded not guilty to failing to comply with his recognizance that ordered him not possess any drug paraphernalia. The crown elected to proceed summarily and called two police officers. Crown counsel concedes Mr. Hines' section 10(a) and 10(b) Charter rights were violated when police failed to advise him of his rights to counsel after stopping him for riding his bicycle on the sidewalk and not having proper lights contrary to the city bylaw and Highway Traffic Act.

[2] Crown counsel however submits Mr. Hines' utterance that he had scales and the recovery of the scales should not be excluded under section 24(2) of the Charter.

[3] For the following reasons, I reject that position.

[4] On December 2, 2015, at approximately 12:18 AM, Police Constables Amber Smith and Matthew Scarlino were in full uniform operating a marked police cruiser. Both officers testified they saw a male riding a bicycle on the sidewalk through a parking lot and then back onto another sidewalk. It was night time and bicycle had no lights. Constable Scarlino activated the cruiser's siren which in turn activated the in car video camera. All of the interaction between Mr. Hines and the officers was audio and video recorded.

[5] At approximately 12:18:11, the video shows PC Scarlino exiting the cruiser and approaching Mr. Hines, who had complied with the officer's demand, stopped and climbed off his bike. The officer asked him about not having a light. Both officers agreed and the video shows Mr. Hines was polite and responsive. Officer Scarlino asked Mr. Hines for his identification and the defendant gave his Ontario Health Card with photo ID. The officer was satisfied Mr. Hines properly identified himself.

[6] Instead of giving Mr. Hines the traffic tickets, Constable Scarlino gave Mr. Hines' health card to his partner, who was still seated in the passenger seat of the cruiser. P.C. Smith said she ran Mr. Hines' information through the various police computer checks.

[7] Meantime at 12:20:12, PC Scarlino asked Mr. Hines why he is hanging out at "Sam's". In cross-examination, the officer agreed that Sam's Food Grocery Store is known to police where there is a lot drug activity and where people loiter. At 12:20:48 the officer asked Mr. Hines if he was "on any charges". Mr. Hines said he was not on any charges, but he was on bail. The officer agreed with defence counsel this series of questions had nothing to do with the initial reason for the stop.

[8] It turns out Mr. Hines was on a recognizance from September 22, 2015 for theft under and assault. His form of release was a $500 recognizance with surety, with the condition that he "not possess any drug paraphernalia including scales".

[9] By 12:21:46, Mr. Hines continued making small talk with P.C. Scarlino.

[10] At 12:22:01, Constable Scarlino asked Mr. Hines why he hung out in that location. At 12:22:19, Mr. Hines explained his philosophy that not everyone in the area is a drug addict and it's not about where you hang out, but it is the image you portray.

[11] The audio portion captured some passerby's asking why Mr. Hines was being stopped by police and P.C. Scarlino told them basically to move on or risk being arrested.

[12] By 12:24:45, the second officer P.C. Smith had some results from the computer checks that indicated Mr. Hines was on a recognizance with conditions. Constable Smith asked Mr. Hines directly, "You don't have any scales or drug paraphernalia, do you?"

[13] By now, 6 minutes had passed since police activated their sirens and Constable Scarlino told Mr. Hines to pull over. Both officers agreed Mr. Hines was obligated to stop and he would not have been free to leave. PC Smith testified she knew that a detainee's right to counsel was triggered by his/her arrest or investigative detention although she incorrectly stated the right was "as soon as practicable" as opposed to "immediate".

[14] Upon being asked by P.C. Smith if he had any scales or drug paraphernalia, Mr. Hines at first was a little vague and answered that occasionally he weighs his drugs. Smith then repeated the question, "You don't have any scales on you? I am asking?" This time, Mr. Hines answers in the affirmative and P.C. Smith chastised him for disrespecting court orders.

[15] At 12:26:54, P.C. Scarlino told Mr. Hines, "You know what happens now"; Mr. Hines said he was going to be arrested. P.C. Scarlino read to Mr. Hines his right to counsel and caution.

[16] By 12:30:41, the video shows Mr. Hines handcuffed to the rear, seated in the back of the police cruiser and en route to the police station.

[17] At 12:31:46 P.C. Scarlino advised Mr. Hines again that he was under arrest for fail to comply with recognizance, repeated his right to counsel and caution and asked him if he understood. Mr. Hines replied that he would like to speak to his lawyer and gave her name to the officer. P.C. Scarlino then read the secondary caution.

[18] Mr. Hines was taken to the police station, spoke to counsel, and he was processed.

The Law

[19] When faced with an application for exclusion under section 24(2), the court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a section 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. (R. v. Grant, 2009 SCC 32, at para. 71).

(a) Seriousness of the Charter-Infringing State Conduct

[20] The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to disassociate themselves from that conduct by excluding evidence linked to that conduct in order to preserve public confidence in and ensure state adherence to the rule of law. "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct (see Grant at para. 72-75). Ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith (See Grant at para. 75 referring to R. v. Genest, [1980] 1 S.C.R. 59, at p.87).

[21] Neither Constables Scarlino nor Smith appeared to have a good grasp of the authority which allowed them to stop Mr. Hines in the first place. P.C. Smith, a police veteran with 10 years on the force, was particularly vague but managed to refer to the Highway Traffic Act. P.C. Scarlino fared a little better noting the HTA infraction of riding a bike without lights and a "municipal code offence" of riding on the sidewalk. Although riding a bike without lights on a sidewalk in other circumstances might not attract police attention, on this particular night and in this particular community it did. This was not a pretext stop: the officers were acting lawfully in stopping Mr. Hines, but they quickly escalated their investigation (as defence counsel said "a fishing expedition") while ignoring Mr. Hines' Charter protected values and interests. Hence, I do not find there was a breach of the defendant's section 9 Charter rights.

[22] In some instances the point at which an encounter with police becomes a detention is often unclear and the officer's mistake in not knowing when the detention crystallizes is understandable. However, in this case P.C. Scarlino, who has been a police officer since 2014, but with the police force since 2006, agreed with counsel that as soon as he yelled to Mr. Hines to pull over and the police siren activated, the defendant was detained. P.C. Smith, a 10 year veteran, also agreed that Mr. Hines was detained from the outset and he was legally obligated to stay. Officers also continued to detain Mr. Hines for what was not an insignificant period of time.

[23] What began as a routine HTA investigation, quickly morphed into a criminal investigation regarding whether or not Mr. Hines was complying with his bail conditions. Nothing Mr. Hines did or said escalated the situation where officer safety became an issue any more than what is always a reasonable and justifiable concern.

[24] As well, some of the officers' answers I found were disingenuous. For example, P.C. Scarlino responded in cross examination when he asked Mr. Hines what he was doing hanging out at Sam's that he was just making conversation. There were ample other topics of discussion, but the officer kept focusing on why Mr. Hines was hanging out in a known drug area.

[25] Furthermore, Mr. Hines' response and production of the scales were in response to direct questions put to him by the officer.

[26] Lastly, both officers said they were aware of the Charter standards, so it cannot be said they were acting in good faith. For these reasons, I find the seriousness of the Charter-infringing conduct was high.

(b) Impact of the Breach on the Accused's Charter-Protected Interests

[27] The second inquiry involves measuring the impact of the breach on the particular accused by evaluating the extent of the intrusion into protected interests, such as privacy, the right to protection against self-incrimination including the right to silence and the right to choose whether to speak to authorities. The more serious the impact, the greater the risk admission of evidence would send the message that the courts do not take Charter rights seriously.

[28] I do not find the breach of Mr. Hines' Charter rights fleeting or merely technical. Firstly, Mr. Hines was detained for over six minutes before he was asked and answered the question regarding his possession of scales. During those six minutes, Mr. Hines was not free to leave and he was not given his right to counsel.

[29] Secondly, if the officers inadvertently breached Mr. Hines' Charter rights initially when they stopped him then they ignored, too, a second opportunity several minutes later when P.C. Smith began to ask him direct questions.

[30] Thirdly, I accept defence counsel's argument that Mr. Hines' section 8 Charter rights were also infringed by these questions, which were elements of a search (See R. v. Mellenthin, [1992] 3 S.C.R. 615). The crown attempts to argue that Mr. Hines voluntarily handed over the scales to the officers; hence, the court should not find a s. 8 violation. Officers clearly have the right to ask questions as part of investigative detention so long as the detention is brief and the person is advised immediately upon detention of their s.10(b) rights. In this case, Mr. Hines was not advised of his s. 10(b) rights, the detention was not brief, and the scales were handed over as result of the direct police questioning.

[31] Fourthly, the officers' conduct clearly undermined Mr. Hines' right to silence, which he later exercised once he was advised of his Charter rights (Enroute to the station, P.C. Scarlino asked Mr. Hines for his wife's phone number so she would know where to pick up his bike. Mr. Hines told the officer he was exercising his right to remain silent, which was against his interest regarding the safe keeping of his bike, but which clearly showed that when advised of his right to counsel/right to remain silent, Mr. Hines exercised the rights). It is reasonable to infer that had Mr. Hines been properly advised of his s. 10(b) rights he would have exercised the right. He also provided a name of a lawyer, whose office was contacted in the middle of the night and he spoke to counsel.

[32] Lastly, the evidence of the scale would not have been discovered independent of the breach. Police had no grounds to arrest Mr. Hines and hence no grounds to search him incident to an arrest; and nothing Mr. Hines did or said elevated police safety concerns.

[33] For these reasons, I find the impact on Mr. Hines' Charter protected interests to be very serious.

(c) Interest of the Trial on the Merits

[34] The scales were real evidence and Mr. Hines was on a bail not to possess scales or drug paraphernalia. Without the evidence, the crown has no case against Mr. Hines.

(d) Balancing of Competing Interests

[35] While there is always a strong public interest in having cases determined on their merits, the seriousness of Mr. Hines' Charter breaches and the significant negative impact upon his Charter-protected interest of his right to silence and his right to counsel, which directly lead to the discovery of the incriminating evidence, lead me to conclude that the evidence of the scales has to be excluded. The officers' complete ignorance of their duties cannot be condoned and the court must disassociated itself from the unconstitutional state conduct. Otherwise, to admit the evidence I find would bring the administration of justice into disrepute.

[36] The defence application is granted.

Conclusion

[37] The crown calling no further evidence the charge of fail to comply with recognizance is dismissed.

Released: September 8, 2016

Justice M. Wong