Court File and Parties

Court File No.: 14-1978

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kulbir Bains

Before: Justice Robert S. Gee

Heard on: November 9, 2015

Reasons for Judgment Released: February 9, 2016

Counsel:

• A. Burns for the Federal Crown
• H. Mattson for the Accused

Introduction

[1] On September 24, 2014, the accused, Kulbir Bains was pulled over by OPP Constable Willem Flink, for speeding. What began as a routine traffic stop, ultimately resulted in Mr. Bains facing charges of possession of marijuana and possession of cocaine for the purpose of trafficking.

[2] The Crown position is that the investigation that led to the charges was a result of good, solid police work. The defence alleges the investigation and charges were a product of multiple breaches of Mr. Bains' Charter rights.

[3] These reasons will explain why I have found that the investigation was most of the former; with a little of the latter.

Facts

[4] Officer Flink pulled the accused over on Highway 24 at its intersection with Governors Road, several kilometres north of the City of Brantford. The accused was the sole occupant of the van, which was registered to his mother. However, the accused should not have been driving anything at the time as his driver's licence had been suspended for unpaid fines.

[5] Upon discovering the licence suspension, Officer Flink arrested the accused, handcuffed him to the rear and placed him in the back of his cruiser. Prior to placing him in the cruiser the accused was searched and Officer Flink located what was described as a large quantity of cash, in denominations of 100's and 20's in the accused's left front pocket. The exact amount was never disclosed at trial.

[6] The accused remained this way in the cruiser from 7:56 p.m. until 8:24 p.m. while Officer Flink wrote him tickets for speeding and driving under suspension.

[7] When finished, Officer Flink removed the accused from the cruiser and removed the handcuffs. At this point he stated the accused was no longer under any form of detention and was free to leave. However, he advised the accused that the van was being impounded and would be towed from the scene. As such, he told the accused he could retrieve any belongings from the van that he wanted. The accused then removed a duffel bag from the van.

[8] Officer Flink then informed the accused he would be doing an inventory search of the van prior to it being towed, to catalogue any valuables that may be remaining in it.

[9] During this search, Officer Flink located under one of the rear bench seats a black leather bag. Inside this bag he located a vacuum sealed, freezer bag that contained marijuana. Upon making this discovery, Officer Flink arrested the accused and handcuffed him and again placed him in his cruiser.

[10] He then continued his search of the van, but he now characterized it as a search incident to arrest. Under the same bench seat he located another black shoulder bag and upon opening it he found another large quantity of cash. Again the exact amount was never disclosed at trial.

[11] Also found by Officer Flink in the van was an expandable asp baton, the type of which are often used by police, and a scented dryer sheet, which, he stated in his experience, are often used to mask the odour of drugs.

[12] The duffel bag removed from the van by the accused was searched next and found to contain trace amounts of loose marijuana as well as personal papers and the accused's wallet.

[13] The vacuum-packed manner in which the marijuana was found could be, according to Officer Flink, indicative of an involvement in trafficking and the large quantity of cash also led him to be concerned that it may be proceeds of crime. As a result, he decided to transport the accused to the station to further the arrest and investigation rather than to determine at the scene if a release was appropriate.

[14] Once at the station, Officer Flink conducted a more thorough search of the accused before putting him in a cell. During this search Officer Flink felt a bulge in the accused's thigh area, which was determined to be a zip lock baggie that contained crack cocaine.

[15] Later when weighed, the marijuana found was 13.5 grams. The crack weighed 55.9 grams, which led to the laying of the possession for the purpose of trafficking charge the accused now faces.

Issues

[16] The defence has alleged that the accused's s.8 and 9 Charter Rights were breached, in total, seven times throughout the course of this investigation. As a result of these breaches the defence seeks either a stay of the charges, or an exclusion of the marijuana and cocaine located, from the evidence at trial, pursuant to s. 24(1) and s. 24(2) of the Charter.

[17] The defence alleges the first three breaches arose out of Officer Flink's decision to arrest the accused for drive suspended, handcuffing him, and placing him in the cruiser.

[18] The first Charter breach is alleged to be an arbitrary detention which came as a result of the decision to arrest the accused in these circumstances.

[19] The second breach is also said to be an arbitrary detention, resulting from the decision to place the accused in the rear of the cruiser, while cuffed, for 28 minutes.

[20] The third breach from the arrest of the accused for drive suspended is alleged to be the pat down search conducted pursuant to this arrest, and is alleged to be unreasonable due to the arrest itself being unlawful.

[21] As a result of these three breaches, the accused seeks a stay of the charges.

[22] The next breach and fourth overall, is alleged to flow from the inventory search of the van, which the defence alleges in the circumstances, was unlawful.

[23] The fifth breach alleged is that the arrest of the accused upon the discovery of the marijuana was arbitrary given the circumstances present at the time.

[24] The sixth breach is said to be the unwarranted decision to continue to detain the accused after his arrest for the marijuana, and transport him from the scene to the police station.

[25] The seventh and final breach alleged results from the decision to increase the level of detention of the accused at the police station by placing him in a cell, which prompted the search of his person and the discovery of the cocaine.

[26] An exclusion of the marijuana and cocaine from the evidence at trial is sought as a remedy for these latter four breaches.

Analysis

The Arrest for Drive Suspended

[27] The analysis on arrest for the drive suspended aspect of the investigation does not turn on the lawfulness of the initial detention. Officer Flink was authorized to pull over the accused and investigate him for the speeding infraction, as he did, and for the drive suspended when it became apparent the accused's driver's licence had, in fact, been suspended.

[28] The issue is the lawfulness in the shift in the nature of the detention from that which invariably arises when pulled over by police for a Highway Traffic Act (HTA) infraction, to that which occurred here; arrested, handcuffed and seated in the back seat of a police cruiser.

[29] To fine tune the analysis even further, the issue is not whether Officer Flink had the authority to arrest the accused as he did; s. 217(2) of the HTA clearly gives him such authority, but it is whether he was justified in exercising that authority as he did.

[30] In this case Officer Flink indicated when arresting someone for drive suspended, it is his protocol to cuff them and place them in his cruiser. He also stated he was aware his authority to arrest for such an offence is discretionary. However he stated he exercises his authority to arrest in about 80 to 90% of cases.

[31] In this case, the location that the accused was pulled over, although several kilometres outside the city limits, was a well-travelled, four-lane, undivided highway. The intersection where the stop occurred was controlled by a stop light and the accused had pulled into the parking area for an RV Trailer sales business, completely off the travelled portion of the road.

[32] When Officer Flink checked the status of the accused's licence he was also made aware that the reason for the licence suspension was for an unpaid fine. To this point as well, the accused had been cooperative and Officer Flink testified to nothing that would have caused him, at this point, to believe the accused might be dangerous, violent or a flight risk.

[33] Officer Flink stated what he considered in deciding to arrest the accused was that he was alone, and in his experience, some people do not react well when advised their licence is suspended, or that they are being charged for drive suspended.

[34] What must be asked in this case is whether it was reasonably necessary for Officer Flink to arrest and detain the accused as he did given the circumstances of this case (See: R. v. Aucoin 2012 SCC 66, [2012] 3 S.C.R. 408 par. 30-44).

[35] Police are often placed in dangerous or difficult situations and are called upon to make split second decisions with only limited information at hand. Given that, courts ought to be reluctant to second guess such decisions, months later, from the safe, secure confines of a courtroom.

[36] Having said that though, the increase in the accused's level of detention from pulled over at the side of the road, to being cuffed, searched and locked in the rear of a cruiser, even if for a relatively short period of time, was a significant intrusion on his privacy rights, and cannot be justified on an undefined fear of how he may react to being charged with what is still a relatively minor HTA offence.

[37] In this case, notwithstanding that Officer Flink's action could be said to have been carried out in good faith, his arrest of the accused was not reasonably necessary in the circumstances. As such the arrest constituted an arbitrary detention contrary to s. 9 of the Charter.

[38] The pat down search conducted as a result of that arrest can only be lawful if the arrest itself was lawful. Since I have found the arrest unlawful, the pat down search conducted pursuant to it was also unlawful and constitutes a breach of the accused's s. 8 Charter rights.

[39] The next issue is the appropriate remedy for these breaches. The defence has requested a stay of proceedings. In doing so, counsel has described these breaches as egregious and stresses we are not living in some Dickensian society where citizens are subject to arrest, detention and jailing for non-payment of debts.

[40] However that is not quite the case here. For not paying his debt, in this case the fine, the accused was not jailed; for that he lost his driving privileges, a reasoned and measured response in the circumstances. What exposed him to arrest was driving in spite of that suspension.

[41] As noted above, an arrest for drive suspended is authorized by law, and no one has questioned the appropriateness of such law. Notwithstanding that the accused's licence had been suspended for an unpaid fine, had the circumstances been different, his arrest may well have been justified.

[42] In determining whether a stay is an appropriate remedy, courts have been clear that a stay of proceedings is a drastic remedy to be invoked in only the clearest of cases. In order to be granted, there must be prejudice to the accused's right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the continued conduct of the trial, or by its outcome and there must be no other remedy available in the circumstances that could redress the prejudice. (See: R. v. Babos 2014 SCC 16, [2014] 1 S.C.R. 309).

[43] The conduct of Officer Flink in this case does not come close to the level necessary to justify a stay of proceedings. It has not been demonstrated in any way that continuing with the prosecution would prejudice the accused's ability to receive a fair trial or that it would impugn the integrity of the judicial system.

[44] In terms of other remedies, one may ask why an exclusion of the marijuana or cocaine was not also sought as a standalone remedy for these breaches. It seems implicit in the defence decision to not seek such a remedy is a recognition that neither the marijuana nor the cocaine were discovered in a manner that could be said to be related to these breaches.

[45] The only thing connecting the discovery of the drugs to these breaches is a temporal proximity. However as noted, the discovery of the drugs came after the breaches relating to the drive suspended arrest had ceased. The arrest for the drive suspended was distinct from the aspect of the investigation that led to the discovery of the drugs and as well it was finite in duration.

[46] Once Officer Flink had completed his checks and the offence notices necessary for the speeding and drive suspended infractions, the accused was released from the cruiser, the cuffs were removed and he was no longer detained; he was free to go.

[47] At this point neither the marijuana nor the cocaine had been discovered, but given how the investigation unfolded, their discovery was inevitable, whether the accused had been arrested for the drive suspended or not. As such, it cannot be said that the discovery of the marijuana or cocaine was a product of this detention or search or came about as a result of these breaches.

[48] I would note that neither the speeding nor the drive suspended charges were before this court, nor was I advised of their status. As such the accused is not precluded from seeking a remedy for these breaches at the trial of those charges given the nexus between the breaches and those charges is much more apparent. As well, the defence position is that several other breaches were committed in this investigation and if a stay is not appropriate for these breaches alone, I can consider the fact these breaches occurred when determining whether to exclude the evidence found as a result of other later breaches of the accused's Charter protected rights.

The Inventory Search

[49] Turning to the inventory search of the van, since it was done without a warrant, it will only be justified if authorized by law. The Crown position is that as the van was being impounded and towed, the police were legally authorized to do an inventory search of it.

[50] The defence contends that the search of the van was not lawful. It is the defence position that I should find that the search, in spite of what Officer Flink testified to, was conducted for a purpose other than to inventory the contents of the van, but even if it was conducted as such, there was no lawful basis on the facts in this case to do so.

[51] The basis upon which the defence suggests I ought to find that Officer Flink was conducting the search of the van for some purpose other than an inventory search, as he testified, is difficult to discern.

[52] The defence seems to suggest that since Officer Flink is unable to produce any stand alone document, or point to any part of his notes labelled or dedicated to an inventory or cataloguing of what he may have located in the van, that he would have prepared in anticipation of the search, then I ought to reject his evidence, and infer his actual purpose was to search for drugs.

[53] I am unable to accept this contention by the defence. Until this point in the investigation there had been nothing to indicate drugs had any role to play in what was an otherwise routine HTA stop.

[54] The only thing up until this point that could possibly have any connection to drugs was the large amount of cash found in the accused's pocket. However he had provided an explanation for this cash, which Officer Flink testified at the time he accepted, and there was nothing from the evidence that would lead me to think otherwise.

[55] The lack of a separate document or distinct heading in his notes made prior to the search, as well does not lead me to reject Officer Flink's testimony about his purpose for the search. He stated if he had found anything of value or worth recording during the search he would have made a note of it, but in fact the first item he found was the bag with the marijuana in it. This seems like a reasonable explanation and recounting of how the events unfolded, and I accept it.

[56] The defence also contends that there was no reasonable justification for an inventory search in this case in any event. Since Officer Flink told the accused to retrieve any items he wanted from the van prior to the search, and he did, there was no basis for Officer Flink to believe any valuables may be left inside.

[57] The leading cases on the police authority to conduct inventory searches of vehicles are R. v. Nicolosi (1998), 12 C.C.C. (3d) 176 and R. v. Wint [2009] ONCA 52. Those cases stand for the proposition that the police, when impounding a motor vehicle, are entitled to search it to itemize property of apparent value. In doing so the police are permitted to as well itemize the contents of items, such as purses, bags etc., found within the vehicle.

[58] In this case as the van was being towed and impounded, the police were well within their legal authority to conduct an inventory search. The search conducted was done in a reasonable manner, and locating the bag as he did, Officer Flink was further authorized to open it to inspect its contents.

[59] Notwithstanding the accused was given the opportunity to retrieve items from the van beforehand, he was not the registered owner, and the fact he removed the duffel bag from it does not necessarily mean there were no other items of value in it. Even if there were not, the police would be derelict in their duties if they did not confirm as much.

[60] As a result I find that the police were authorized to conduct the inventory search of the van as they did, and as such there was no breach of the accused's Charter rights.

The Arrest for the Marijuana

[61] The next allegation of a breach of the accused's Charter rights, relates to the arrest upon the discovery of the marijuana. As the weight of the marijuana found turned out to be less than 30 grams, the possession of it is a summary conviction offence. As such Officer Flink's authority to arrest the accused for it is limited, and again, as it was for the drive suspended, discretionary.

[62] The defence contends that, like for the drive suspended, although Officer Flink had the authority to arrest the accused, in exercising his discretion as he did, he breached the accused's right to be free from arbitrary detention. The defence suggests that it should have been obvious to Officer Flink that the amount of marijuana was well under 30 grams, and given that, there was no pressing reason to make an arrest, cuff the accused and again place him in the rear of the cruiser.

[63] I disagree. The context of this situation differs significantly from that of the arrest for the relatively minor HTA infractions.

[64] Although later, when weighed, it turned out the marijuana was less than 30 grams, it was not so obvious to Officer Flink at the side of the road that night. He testified that in his experience when marijuana was sealed in a bag and vacuumed packed it will often weigh more when removed from the packaging than one might think at first glance. As such when he found the marijuana that night he could not determine simply by looking at it that it was less than 30 grams.

[65] However, there were also other factors that informed his decision to place the accused under arrest when he located the marijuana. In addition to the uncertainty of its weight, was the manner in which it was packaged, being sealed and vacuum-packed. Officer Flink indicated, again in his experience, this is often indicative of an involvement in trafficking as opposed to simple possession. Additionally, even though another officer arrived later, at the time the marijuana was located Officer Flink was alone with the accused, several kilometres outside the city limits, and had yet to complete the search of the van, so he was unaware of what else he may find within it.

[66] This is one of those situations the Supreme Court recognized in paragraph 40 of Aucoin (supra); a police officer was required to make a split second decision, in a fluid and potentially dangerous situation. The decision made by Officer Flink to exercise his discretion and arrest the accused was reasonable in the circumstances, and I am not going to second guess him, from the safe and secure environs I find myself in now.

[67] As such, the arrest of the accused in this context was not a breach of his Charter rights.

The Continued Detention of the Accused and his Transport to the Station

[68] The next breach alleged by the defence is the decision by the police to continue to detain the accused at the scene and then to transport him to the police station instead of processing and releasing him at the scene.

[69] Again, this is said to be an improper exercise of police discretion that amounted to a breach of the accused's right not to be arbitrarily detained.

[70] Again I disagree. Subsequent to the accused's arrest for the marijuana, the search of the van was completed. What the police were left with after completing the search was the marijuana packaged as it was, but which was still not weighed, and additionally, a large quantity of cash, a weapon in the form of the collapsible baton, and dryer sheets, that could have been used to mask the odour of drugs.

[71] With all these factors present, that the accused may have been something more than a simple possessor of a small amount of marijuana, was a real possibility. That the police, in this context, exercised their discretion to continue the arrest and transport the accused to the police station was a reasonable course of action that did not breach any right of the accused.

Placing the Accused in the Cell, and the Search that Preceded

[72] The final Charter breach alleged by the defence is the decision that, once back at the police station, to place the accused in a cell while he was being processed, and the search that accompanied it, which led to the discovery of the cocaine.

[73] Again, what the defence is alleging is that this was an improper exercise of police discretion. The defence contends there were no legitimate reasons to increase the accused's level of detention. Once at the police station he ought to have been allowed to remain in an area outside a cell, perhaps a hallway, interview room, or common area, while he was being processed and presumably released. Had the police acted in this manner, a further search would not have been necessary, and the cocaine would not have been discovered. This type of procedure is done, according to Officer Duncan, who also assisted in this investigation, in appropriate cases.

[74] That the police decided not to do so in this case though, was reasonable. Their decision to place the accused in a cell and search him beforehand was appropriate. Again, one ought not to lose sight of the entirety of the facts in this case. Upon arrival at the police station, the marijuana still had not been weighed, a large quantity of cash had been located, as well as a weapon. In this context, the decision by the police to search the accused and place him in a cell while the investigation was continued was entirely appropriate and in no manner amounts to a breach of the accused's Charter protected rights.

Conclusion

[75] In conclusion, of the seven separate Charter breaches alleged by the defence, only the decision to arrest, search and detain the accused for the drive suspended infraction, amounted to breaches of the accused's rights. However, the remedy sought, that being a stay, is not an appropriate remedy in the circumstances, and I decline to grant it.

[76] All other allegations of Charter breaches by the accused are without merit, and his application to exclude the marijuana and cocaine from the trial proper, is dismissed. As a result of these findings, the marijuana and the cocaine are admissible to prove the charges against the accused.

[77] During the course of the trial the defence admitted that given the amount of cocaine, it was appropriate to draw the inference that it was being possessed for the purpose of trafficking.

[78] Given the evidence, these findings and the admission by the defence, I am satisfied first that the accused, as the driver and lone occupant of the van, in all the circumstances including the fact loose marijuana was found in the duffel bag he removed from the van and that cocaine was found later on his person, that he had both knowledge and control of the marijuana in the black bag and as such was in possession of it. As well I am satisfied that the cocaine found on his person, was being possessed by him for the purpose of trafficking.

[79] As such, findings of guilt will be made in relation to both counts.

Dated at Brantford, Ontario

This 9th day of February, 2016

The Honourable Mr. Justice R.S. Gee