Ontario Court of Justice
Date: 2016-09-07
Court File No.: 15-06589 Newmarket
Between:
Her Majesty the Queen
— AND —
James Robert Baldwin
Judgment
Before: Justice Joseph F. Kenkel
Heard: 7 September, 2016
Delivered: 7 September, 2016
Counsel:
- Mr. Avik Ghosh, counsel for the Crown
- Ms. Anita Nathan, counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. Baldwin stopped for a RIDE spot check. He told the officer he was a suspended driver. An approved screening device test (ASD) resulted in a further administrative suspension. He was then arrested for Driving Under Suspension. When asked, he told the officer he had cocaine in his possession. A search incident to arrest located crack cocaine and he was charged accordingly.
[2] The defence concedes that the Crown has proved the accused was in possession of cocaine as alleged. The defendant applies for exclusion of the cocaine evidence pursuant to s. 24(2) of the Charter as a remedy for three Charter breaches:
- Section 9 – Arbitrary Arrest – The arrest of the accused for Drive Under Suspension was arbitrary and not authorized by law
- Section 8 - Unreasonable Search – The search of the accused was pursuant to an illegal arbitrary detention and was otherwise not for a valid purpose.
- Section 10(b) – Information component - Failure to recite fully the formal right to counsel advice including the 1-800 phone number.
Section 9 – Arbitrary Arrest?
[3] Both parties agree that the random stop of the accused at the RIDE checkpoint was authorized by law. R v Ladouceur, [1990] SCJ No 53
[4] In R v Aucoin 2012 SCC 66, the Supreme Court considered a police officer's power to detain a motorist in the rear of the patrol car for a regulatory offence. Aucoin was not under arrest when the officer decided to place him in the back seat of his vehicle after a consent pat down search. The pat down search led to the discovery of 8 bags of cocaine and 100 ecstasy pills.
[5] The Supreme Court noted that the officer had the authority to detain Mr. Aucoin even though he was not under arrest. The issue was whether the officer was justified in exercising that authority in the manner he did. Aucoin para 35 The court found the detention in the police car was not reasonably necessary in the circumstances. The officer had other, simpler means to address the limited concern in that case – that the driver remain on scene - other than placing him into the police car which would trigger a search.
[6] The court cautioned that a different factual matrix may well lead to a different result. The majority specifically disagreed that "the balance will generally not favour" securing a detainee in the back of a police cruiser. Aucoin para 43
[7] In this case Mr. Baldwin was not merely detained, he was arrested for Driving Under Suspension. The arrest in this case was authorized by law. Section 217 of the Highway Traffic Act RSO 1990 c H8 (HTA) authorizes arrest for a number of traffic offences including s. 53 Drive Under Suspension.
[8] Constable Pillegi testified that he understood arrest was authorized but not mandatory. He said arrest is typical in these circumstances where the driver fails to surrender the suspended license as required by the HTA, but when questioned he gave another example where a driver in other circumstances who had just recently been suspended might not be arrested or charged if they undertook to go to and fulfill their obligations to the Ministry. He said that's happened before.
[9] Constable Pillegi is authorized under s. 212 of the HTA to seize the driver's suspended license and return it to the Registrar of Motor Vehicles. His arrest of the accused to execute a statutory duty was authorized law.
[10] Neither the detention of the accused at the RIDE checkstop nor the arrest of the accused was arbitrary.
Section 8 – Unreasonable Search Incidental to Arrest
[11] After failing the ASD test, the accused was arrested for Driving While Under Suspension. The officer conducted a very brief pat down search, located crack cocaine and then moved the accused over to the side of the roadway for a thorough search.
[12] The defence submits that the search of the accused was unlawful as it was not truly incidental to arrest and was not for a valid purpose. They point to the delay in making the arrest to show that there was no safety concern. The defence submits that the officer's evidence as to his observations of the accused which gave some safety concern is not credible. The manner of search was unreasonable as the officer went into the accused's pocket during the pat down search.
[13] Considering all of the circumstances of the search I find that the Crown has proved the warrantless searches were reasonable. They were incidental to arrest. The delay in the arrest was reasonably explained by the need to administer the ASD test. The decision to focus first on that investigation was logical and consistent with the s. 254(2) forthwith requirement. The arrest followed after the ASD administrative fail as the officer now had to process two provincial offences.
[14] The officer was authorized by law to obtain the accused's suspended license. He explained that in his experience suspended drivers often carry their licenses and sometimes even suspension notices with them while continuing to drive. His search to retrieve possible evidence was reasonable even for a dated suspension.
[15] Constable Pillegi testified that another purpose of the search was officer safety as after arrest the accused was to be placed close to him in the police cruiser. His evidence about the accused's fidgeting is supported by the video which shows the accused making various movements and at times turning his body away from the officer while waiting. None of the movements are improper or show hostility, but the officer knew the accused had a record including convictions for violence and I find it was reasonable for him to search the accused prior to placing him in the cruiser.
[16] The manner in which the search was conducted was reasonable. The officer conducted a very brief pat down search, located crack cocaine, then removed the accused from the roadway and conducted a more thorough search in the grass area to the side of the road. The defence submits that the officer cannot reach into a person's pocket to determine the nature of a hard object found during a pat down search unless it is large enough to be a recognizable weapon such as a knife or gun. I disagree. The officer reasonably explained that when he realized that the hard item was not keys or coins or something typically in a pocket he needed to ensure it was not something that the accused could use to hurt himself or the officer. The more thorough search in the grass area happened after the officer was alerted to the presence of drugs.
[17] I find the Crown has shown that the searches incident to arrest were reasonable and conducted in a safe and reasonable manner.
Section 10 – Informational Component Breach
[18] The defence submits that the failure of the officer to read out the digits of the 1-800 number when advising the accused of his right to counsel is a s. 10(b) breach.
[19] It's not. The officer's right to counsel advice was interrupted by the accused who said he didn't have a lawyer. The officer immediately told him they could arrange for him to call a free lawyer for advice. The accused showed interest but ultimately declined. There's no magic words. The officer explained the right to counsel advice in simple terms that were plainly understood by the accused.
[20] The investigation was complete by the time the accused was read his right to counsel advice. He was kept in the police car afterwards only until the officer could finish the paperwork necessary to release him from the roadside. The implementation duty did not arise as the accused was not in a location where private consultation with counsel could be offered, the investigation was over and the officer properly focused on release after which the accused would be free to call any lawyer he wished.
[21] There's no evidence of a s. 10(b) breach. If there were a technical breach as the defence alleges, it would have no impact on the rights s. 10 was meant to protect and no evidence was obtained thereby so it could not lead to any remedy under s. 24(2).
Conclusion
[22] I find that the defence has failed to prove the Charter breaches alleged. As the Crown said, both the investigating officer and the accused acted that night as one might hope everyone would act. They were both polite and the officer was respectful of the accused's rights throughout. He even released the accused at the roadside despite the discovery of crack cocaine on the person of someone with a record including drug offences. The defence submission that the officer's conduct shows complete disregard for the accused's Charter rights has no foundation in the evidence. The Charter application is dismissed.
[23] The defence concedes the Crown has otherwise proved the charge alleged beyond a reasonable doubt. There will be a finding of guilt.
Delivered September 7, 2016
Hon. Justice Joseph F. Kenkel