Court File and Parties
Ontario Court of Justice
Date: July 19, 2017
Court File No.: Brampton 3111-998-15-8505-00
Between:
Her Majesty the Queen
— and —
Troy Jones
Before: Justice J.W. Bovard
Heard on: August 9, 10; October 18; November 7, 2016; March 27, 2017
Reasons for Judgment released on: July 19, 2017
Counsel:
- Ms. S. Thompson — counsel for the Crown
- Ms. R. Gupta — counsel for the accused Troy Jones
Reasons for Judgment
Bovard J.:
Introduction
[1] These are the court's reasons for judgment after the trial of Troy Jones on two charges of possession for the purpose of trafficking in cocaine (62.45 grams total), and one charge of possession for the purpose of trafficking marijuana (43.6 grams).
[2] Officers Patterson and Galavo were on general patrol when they saw Mr. Jones's car parked straddling two or three parking spaces in a parking lot next to an LCBO store. They saw Mr. Jones walking from the wall of the LCBO towards his car. There was a urine stain on the wall. He got into the driver's seat of his car.
[3] Officer Patterson did not see the urine stain, but he wanted to find out what was going on. He took the lead. He went alongside the driver's door to speak to Mr. Jones. He started questioning him without giving him his rights to counsel.
[4] Officer Galavo saw the urine stain, but since Officer Patterson had taken charge of dealing with Mr. Jones, he simply took up a position alongside the front passenger side door to keep an eye on Mr. Jones for the purpose of ensuring officer safety. Within seconds of Officer Patterson starting to question Mr. Jones, Officer Galavo told him that he saw Mr. Jones hiding a marijuana cigarette under his thigh.
[5] Officer Patterson immediately arrested Mr. Jones for possession of marijuana and gave him his rights to counsel. Officer Galavo searched the car and found cocaine, marijuana and drug paraphernalia. Officer Patterson searched Mr. Jones and found $1,325 in his pocket. Officer Patterson arrested Mr. Jones for possession of the drugs for the purpose of trafficking. Mr. Jones states that Officer Patterson gave him his rights to counsel for the first time at this point, not before. Officer Patterson said that it was the second time that he gave him his rights to counsel.
The Issues
[6] The defence brought a Charter motion that alleges that the police breached Mr. Jones's rights under ss. 8, 9, 10(a) and 10(b). The defence asks that the incriminating evidence against Mr. Jones be excluded under s. 24(2) of the Charter.
The Evidence
[7] On June 25, 2015, at 7:29 p.m., Officer Patterson was on bicycle patrol with Officer Galavo. As they rode through the parking lot of the LCBO next to Square One, Officer Patterson noticed a car parked across several lanes. It seemed odd to him that the car was not parked properly in one of the designated spots. The way that the car was parked indicated to him that something out of the ordinary was going on.
[8] As he approached the car he noticed Mr. Jones walking towards the car from the wall of the LCBO. He got into the driver's seat quickly. Officer Patterson drew near to the car and spoke to Mr. Jones to see if he was okay. He seemed nervous, his hands were fidgety and he was looking around. He did not seem comfortable. He was moving back and forth in his seat and shuffling.
[9] At this point, Officer Patterson was not investigating any criminal activity, nor did he intend to detain Mr. Jones. But as they conversed Mr. Jones told him that he had just urinated on the wall of the LCBO. Up to this point, Officer Patterson had no inkling that Mr. Jones had done this. Officer Patterson had not seen him urinate on the wall, nor had he seen the urine stain on the wall.
[10] Based on Mr. Jones's admission, Officer Patterson thought that perhaps he might give him a ticket under the Provincial Offences Act for trespassing. He gave confusing evidence regarding whether Mr. Jones was free to go at this point. He said that,
if he had said to me and I gotta get outta here, okay, but would I have, would I have continued my investigation for a Provincial Offences Act? Probably. But is he detained at that point, I don't know. Would I have continued my investigation in regards to urination or engaging in prohibited activity, yes, I would have.
[11] Later he testified that,
I was alerted to the fact that there was, there was a provincial offence that had occurred by Mr. Jones and that I was investigating that. I wouldn't, I wouldn't say that I'm not gonna – I wasn't prepared to let Mr. Jones go until he answered my specific (sic) because the only that I would have been concern about at that point was getting a piece of identification from him to issue a ticket, if that's the way I was gonna proceed with that, because I might have had further conversations with where he said, you know what, I'm really sorry, I didn't, I didn't know this area and I really had to go to the washroom. I had this on the go, I had this on the go and I might have said, you know what, Mr. Jones, thank you for your time, please don't do that again 'cause people don't usually like it when you, number 1) pee on their building and....
[12] Then there was this exchange between defence counsel and Officer Patterson:
Q. No, I'm asking you if he was, if he was free to go when you first – after you go (sic) the response that he urinated on the wall and you said that you wanted more clarification.
A. Yes.
Q. Did you ever at any point tell him that he was free to go?
A. No.
Q. Did you at point tell him in no unambiguous terms that he doesn't have to answer your questions?
A. No.
[13] Officer Patterson asked Mr. Jones what was happening. He asked Mr. Jones why he would not have gone to the mall to look for a bathroom. Mr. Jones said that he was not familiar with the area because he was not from there.
[14] Officer Patterson did not put anything in his notes about a Provincial Offences Act ticket because as he was speaking with Mr. Jones, Officer Galavo told him that Mr. Jones had put a marijuana cigarette under his right leg. Therefore, he did not proceed with a Provincial Offences Act investigation. Instead, at 7:30 p.m., he arrested Mr. Jones for possession of marijuana and took him out of his vehicle. The marijuana cigarette remained on the seat of the car.
[15] Officer Patterson does not remember if he asked Mr. Jones to identify himself at this point. He read him his rights to counsel and both cautions. Mr. Jones said that he understood his rights. He wanted to call a lawyer then. He did not specify which lawyer he wanted to contact. Officer Patterson said in cross-examination that he gave Mr. Jones his rights to counsel "again", but he said nothing more about this.
[16] Officer Patterson said that he did not think that it was practical to afford Mr. Jones the opportunity to call a lawyer then because he would not have been able to provide him with privacy. He did nothing to help Mr. Jones implement his right to counsel because the officer that books-in the accused at the police station is the one that takes care of this.
[17] While Officer Patterson was dealing with Mr. Jones, Officer Galavo was searching the car. He told Officer Patterson that he found cocaine, crack cocaine and marijuana. Based on this information, at 7:35 p.m., Officer Patterson arrested Mr. Jones for possession for the purpose of trafficking of the three drugs. He did a quick pat down search but found nothing of interest on him. He told Mr. Jones to sit on the curb.
[18] Officer Galavo also found an electronic scale, scissors, two cell phones, and two prepaid credit cards. Some of the drugs were individually wrapped. Mr. Jones said that one of the cell phones must have been Peter's. When he got into the driver's seat there was nothing on the passenger seat.
[19] They called for a cruiser to come take Mr. Jones to the police station to be processed and to call a lawyer. Officer Saraiva arrived at 7:46 p.m. Before they turned over custody of Mr. Jones to him Officer Patterson searched him again. He felt that his initial search had been just a quick one to search for weapons. Now, he apparently did a more thorough pat down search. He found $1,325.00 in Canadian money in his right front pocket. The denomination of the bills were:
- 2 × $100
- 11 × $50
- 25 × $20
- 3 × $10
- 9 × $5
[20] After the search, at 7:50 p.m. he turned over Mr. Jones to Officer Saraiva. He told him that Mr. Jones needed to speak to a lawyer. Officer Patterson did not have anything more to do with Mr. Jones after this. He turned over the money to Officer Galvao at 12 Division at 10:00 p.m.
[21] Officer Patterson also searched Mr. Jones's car. In the rear seat he found a Bell Mobility bill with an address of 9225 Jane Street, number 11. He could not remember where in the car he found a driver's license and a health card with Mr. Jones's name on it. The health card had an address of 46 Cassia Crescent in the City of Vaughan.
[22] As he searched the car he found several compartments that he thought could be used for hiding things. He found these in the side dash of the passenger and driver's side of the car. Also, the plastic housing of the front doors was loose. He did not find anything in the compartments.
[23] Officer Galavo testified that he was on general patrol with Officer Patterson. He saw Mr. Jones walking away from the wall of the LCBO towards his car, which was parked horizontally across two parking spots. All the other cars were parked normally. He did not see Mr. Jones urinating on the wall but he noticed a urine stain on the wall. He did not see anyone else with Mr. Jones.
[24] They approached Mr. Jones who was in the driver's seat of his car. Officer Galavo said that he wanted to speak to him about the urine stain. He did not have any intention to detain or search Mr. Jones. The defence asked him if at this point Mr. Jones was detained. His answer is difficult to decipher. It is best to reproduce the exchange between defence counsel and Officer Galavo:
Q. So, Mr. – when Mr. – sorry, I keep saying Mr., Officer Patterson was talking with Mr. Jones, he was at the door, would you agree that Mr. Jones wasn't free to move and leave?
A. When he was speaking to Constable Patterson?
Q. Yeah.
A. At that point – it's really hard for me to say with a what if, at that point we had nothing to arrest him for. We did want – I would have spoken to him in regards to urine at the very least but I can't say what would have or wouldn't have happened.
Q. No, I'm asking you specifically at the moment when you were both at each of the sides, Mr. Jones was not free to leave?
A. Was he free to leave? I think initially he was, he was free to leave but I would have mentioned something in regards to the urine and then we could have likely conducted an investigation in regards to Trespass To Property Act. In regards to criminal, we had nothing on him criminally.
Q. So he wasn't free to leave? You still wanted to ask him questions about the urine if your partner didn't?
A. It's a difficult question because the time frame, everything happened very quickly. There was really no time for him to – there was really no time for us to even kind of establish – establish that. Everything happened in sequence within a few seconds.
Q. I'm talking about from the moment he sat in his car and you both were at either side of the vehicle, when he was being questioned by Officer Patterson, you agree with me that he wasn't free to leave?
A. I don't think so because if he would have left, I would have mentioned the urine and I would have...
Q. So after...
A. ...talked to him about that.
Q. So after that you had just said that even if he was free to go, you would have asked him about the urine?
A. If he – no, if – sorry, can you rephrase that, please?
Q. Even if he thought that he was free to go, you would have still stopped him to ask him about the urine on the wall?
A. Well, yeah, I didn't think it was appropriate.
Q. Okay, so – so he wasn't free to go?
A. At that point, no – well, it's difficult for me to answer that – that question in some regards because everything happened so fluidly and it's hard for me to say what I would have or wouldn't have done. Regardless, I would have asked him about the urine. Mr. Jones was completely compliant with us. I just really don't see it ever getting to that point where I would have to...
Q. Well, at any point did you – the windows were – were both down, right?
A. Yes.
Q. At any point did you say, Mr. Jones, you're free to go?
A. No.
Q. Did you at any point tell him he doesn't have to answer your questions?
A. No, we didn't ask him any questions 'cause everything happened so fluidly...
Q. You say...
A. ...it was seconds...
[25] He went to the passenger side of the car while Officer Patterson went to the driver's side and spoke to Mr. Jones. Officer Galavo heard the word "urine" or "piss" or both. But he could not say who uttered these words although in his notes he wrote that "Male advised was taking a piss". This led him to surmise that Mr. Jones was admitting to having urinated on the wall. But he was focused on officer safety and checking for "evidence or anything that might stand out that may be a danger or maybe give us a reason as to why the person is there and whatnot".
[26] When he is keeping watch for officer safety he looks at a person's hands, where they are seated, their area of control, what they can grab, and whether there are any weapons visible. He was doing all of this by looking through the passenger side window at Mr. Jones.
[27] Within seconds of arriving at the passenger side of the car and of Officer Patterson beginning to speak with Mr. Jones and asking him what was going on, Officer Galavo saw that Mr. Jones had a marijuana cigarette in his hand and was trying to conceal it under his right thigh. He thought that it was marijuana because it was "hand wrapped" and he could see a green leafy substance partially through it and at the tip. It did not look like a normal cigarette.
[28] He told Officer Patterson without delay that he had seen it. Right away, Officer Patterson asked Mr. Jones to step out of his car and he arrested him for possession of a controlled substance and put handcuffs on him.
[29] Officer Galavo never spoke to Mr. Jones. After Officer Patterson arrested him, Officer Galavo searched Mr. Jones's car. He found 2 grams of cocaine and a scale in a compartment under the dashboard next to the steering wheel right by the driver's left leg. The compartment had a latch to open it. He also found a bag behind the passenger's seat that contained cocaine.
[30] Then he searched the centre console and found a large bag containing 43.30 grams of marijuana. The marijuana cigarette weighed .30 grams.
[31] Next, he searched on the floor behind the front passenger seat. He saw in plain view a brown Canadian Tire bag that contained another bag that had 62.45 grams of cocaine. The cocaine was wrapped in individual plastic bags.
[32] The same bag contained two amounts of what he thought was crack cocaine, but it tested as 4.4 grams and 8.05 grams of heroin.
[33] He also found a pair of scissors and two cell phones and two Visa cards with no name on them on the front seat of the car. He found a scale in the compartment to the left of the steering wheel.
[34] In addition to these items, Officer Galavo took custody of the money that Officer Patterson found.
[35] Officer McEachern testified as an expert in street-level trafficking in cocaine, including its value and all the things that go together with street-level trafficking in cocaine in the jurisdiction of Peel.
[36] The Crown put the following hypothetical to him:
there's an amount of two grams of powder cocaine located in a compartment in a vehicle on the left hand side of the driver's steering wheel in the dash … In addition, in the centre console there's 43.30 grams of marijuana. In addition, in the back right food well of the vehicle, there is 62.45 grams of cocaine, as well as ... 13.35 grams of heroin found together with that 62.45 grams of cocaine ... a small amount of marijuana in a cigarette form found on the driver's seat, 0.3 grams … In addition to those amounts of drugs, I would like you to consider that there is a scale found together in the front compartment, that same compartment where the two grams of cocaine was found, a pair of scissors on the front passenger seat, two cell phones, and $1325 found on the individual's person, okay? So those are the facts that I, I would like you to consider in this, in the hypothetical. Starting first with that 64.45 grams of powder cocaine, so the two grams plus the 62.45...
[37] Officer McEachern's opinion was that if the 62.45 grams of cocaine were sold by the ounce, it would fetch approximately $6,445. If it were sold by the gram it would be sold for between $80 and $120. Therefore, I calculate the gram-level value being between $4,996 and $7,494.
[38] He said that considering all of the circumstances of the hypothetical his opinion was that the cocaine was possessed for the purpose of trafficking.
[39] With regard to the marijuana, although Officer McEachern was not qualified to give expert evidence regarding marijuana, he opined that it was not possessed for the purpose of trafficking.
[40] Officer Saraiva confirmed that he arrived at the scene at 7:46 p.m. to take custody of Mr. Jones from Officers Patterson and Galavo and to transport him to 12 Division. Officer Saraiva assumed that the arresting officer had given Mr. Jones his rights to counsel. Officer Saraiva had a cell phone but he did not try to help Mr. Jones contact counsel at this point because it was not a secure or private area. He would have had to take off his handcuffs and leave him alone in the rear of the cruiser. Therefore, in the circumstances he felt that contact with counsel would be better done at 12 Division. They were not far away.
[41] After speaking to Officers Patterson and Galavo briefly he left with Mr. Jones at 7:59 p.m. They arrived at 12 Division at 8:05 p.m. He did not speak to him about the charges during the trip.
[42] They had to wait on the ramp outside of 12 Division before being admitted into the sallyport because there was another accused ahead of them. They waited until 8:18 p.m. Once in the sallyport, he took Mr. Jones into the booking area.
[43] In the booking area, Officer Saraiva had a "book of lawyers", which he showed to Mr. Jones. He said that he was asking him what his lawyer's name was and looking to see if they had the lawyer's telephone number in their system or if it was in the lawyer's book so that they could contact the lawyer. At 8:26 p.m., Officer Saraiva called Mr. Jones's lawyer, Mr. Brian Ross. He wound up speaking with his partner, Ms. Gupta. Then he arranged for Mr. Jones to speak privately on the telephone with Ms. Gupta, which he did between 8:29 p.m. and 8:35 p.m.
[44] Mr. Jones testified on the Charter Application and on the trial. On the day in question he was working for UPS and living with his mother in Vaughan. He has a son that lives in Calgary with his mother. Mr. Jones was preparing for a visit from his son that summer.
[45] The car in which the police found him was "an older rental" that he had rented in April. After he rented it his license was suspended for 90 days as a result of the police charging him with a drinking and driving offence. But he decided to keep the car and ask friends to drive him around. The arrangement was that a friend would pick him up and take him to where he wanted to go and then keep the car until Mr. Jones required another ride. He said that he would just "basically just get dropped off and get picked back up" when he wanted to go somewhere.
[46] But he also said that the car was registered under his name. I did not understand this evidence because if it is a rental car it means that it belongs to another who rented it to him.
[47] On the day in question, he was going to the movies in Mississauga with his girlfriend, Justine Nortley. A friend named Peter from Toronto was taking him to the movie theater in the car. He met Peter through a mutual friend. He does not know his last name. He did not know where Peter was when he called him that day to come pick him up.
[48] The Crown asked Mr. Jones the name of the mutual friend. This is the exchange between her and Mr. Jones:
Q. Okay. What's Peter's last name?
A. I don't even know, tell you the truth.
Q. So Peter, last name unknown. How do you know Peter?
A. Through a mutual friend.
Q. Through a mutual friend?
A. Yeah.
Q. Who's your mutual friend?
A. At like, it's like, high school time. I tell you the truth I have go - I have to think about this. I never...
Q. High school?
A. ...knew, I never knew you were gonna really get into the whole details of this, tell you the truth.
Q. So you know Peter through a mutual high school friend, is that right?
A. Yeah.
Q. So, if it's a high school friend, this is somebody that you've known since high school.
A. Okay.
Q. Right? That's what you've just said. You know Peter through a mutual high school friend.
A. Okay.
Q. Right? Is it...
A. Yeah, yeah.
Q. Yeah, right? What's the name of your high school friend?
A. Well, there's so much of them it's almost like, like, I don't even know how this is so irrelevant right now, if you're trying to hammer it in. If, if I had known this was gonna be a issue I would have came prepared for these questions. I, I...
Q. Sir....
A. ...I really don't know.
Q. Okay.
A. And which.....
Q. So you can't, you can't recall the name of the high school friend that you met – that introduced you to Peter? Or, that's how you got to know Peter, right? Through this high school friend?
A. Yeah, it just happened so long ago.
Q. Okay. And this happened a long time ago. How long ago do you think met Peter?
A. Hmmm, good question. So high - 19 - I wouldn't even know, high school. So it's gonna be about, about six years, I can imagine.
Q. About six years?
A. 'Cause adult school, finished 24, 20, yeah, okay. Makes sense.
Q. Okay. So you've known Peter for about six years, is that, is that right?
A. I just did - honestly, I had to think about it but yeah, that's the - what I came to conclusion.
[49] Mr. Jones did not know what Peter's telephone number was because it is in his cell phone. He does not know where Peter lives either, except that it is in Toronto. He does not know what Peter does for a living.
[50] Mr. Jones said that Peter wanted to go to the LCBO before taking him to the movies. He went into the LCBO and Mr. Jones waited outside in the passenger seat of the car. Then he felt the urge to urinate. So he got out of the car and urinated on the wall of the LCBO.
[51] After he urinated he turned around and saw Officers Patterson and Galavo riding towards him. He thinks that his friend must have seen them, too, because he came out of the LCBO and he never saw him again. The exchange between him and defence counsel about this was as follows:
A. So, as I, as I, as I finished relieving myself, I turned back and I seen two officers on bikes. They're, like, riding towards me then I, I thought it was over the – they were gonna approach me over urinating in public, so....
Q. Okay. And where - your friend, what was he doing at this time?
A. Well, the same time when I went to go use the washroom and I seen the two police officers coming on their bikes, my friend must have seen the same thing that I seen and I, I was – like, I never seen him after that, so he must have took off.
Q. Okay. So he came outside of the LCBO?
A. Yeah, the same time.
[52] He said that he thought that the officers were going to speak to him about urinating on the wall so he got into the driver's seat. In cross-examination, he gave the following explanation for this:
Q. So when, according to your evidence, you were being driven around by this Peter guy, he's wasn't chauffeuring you around, right, in the sense that he was in the front and you were in the back of the vehicle?
A. No.
Q. You, on your evidence, would have been sitting in the front passenger seat, right?
A. Passenger seat, yeah. Front passenger seat.
Q. And then for reasons that you've tried to explain, instead of getting back into the front passenger seat when you came back from urinating on the wall, you get into the driver's seat?
A. Yeah.
Q. Okay. Suggesting that's a bit strange.
A. I know but like I said before, I didn't think that even though I know I didn't have a licence at the time, I didn't think that it would – like the car wasn't even in, wasn't like, in motion or nothing and like I said I thought they were just come for urinating on the wall. I really – I didn't know it was gonna come to all of this.
[53] Mr. Jones agreed that it did not make any sense that he got into the driver's seat. It was a bad decision. He had seen his friend take off and he panicked. He did not think that the police would have believed him had he told them that he was not driving.
[54] He put his hands on the steering wheel because he has had dealings with the police before and he knows not to make any sudden moves or flinch in the car or make any drastic movements that would draw their attention. He said that "It's Peel Region cops. I don't want to get in no, like, trouble, like get hurt by them or something or anything can happen 'cause it was happening so fast at the beginning so I just knew that - just keep, keep my hands on the wheel and just keep it simple". He had nothing in his hands when he walked to the car from the LCBO wall, nor when he was in the car.
[55] The officers came over to him and asked him what was going on. Before he had a chance to answer they arrested him "for possession". He also said that "as soon as he came it was, he told me I was under arrest". The officer told him that he was under arrest for possession of marijuana.
[56] The officer told him to get out of the car and he put handcuffs on him. Then he told him to sit on the curb. Next, both offices searched the car. Mr. Jones said that he did not know what was going on. Defence counsel asked him if he said anything back to the officer after he arrested him. Mr. Jones said "I, I, I wanted to speak to my lawyer 'cause I, I, I've got in trouble in the past before and I, and I know don't, don't say nothing; you just speak to a lawyer. So I didn't". He was "pretty sure" that the police did not give him his rights to counsel until they found the bags of drugs in the car.
[57] Mr. Jones testified that he did not say anything after they gave him his rights to counsel. The officers kept searching his car. At one point, Officer Patterson stayed with Mr. Jones while Officer Galavo kept searching the car. Mr. Jones told him that he wanted to speak to his lawyer.
[58] Regarding the compartments in the car, Mr. Jones said that "they (the police) did that amongst themselves because after they found the drugs they probably thought they could find something else, so whatever how the car was and all that stuff, they did that amongst themselves, because like I said in my evidence before, when I got back to my car, my car was torn apart and the Peel Region cops did that. I didn't do that".
[59] The officer that went to the passenger side of the car when they approached him (Officer Galavo), pulled "something out of the car and he's, like, 'Well, what's this'?" Mr. Jones said that he was dumbfounded. The other officer (Officer Patterson) searched him again and found a cell phone and $1,325 that he was going to give to his mother because his son was coming to visit for two months and he needed the money for the visit. He was going to give it to his mother so that she could pay daily expenses when his son was visiting. He could not remember how much money he had, but it was a lot because he had just gotten paid.
[60] He added that he was going to give the money either to his girlfriend or to his mother because he is "not good with walking around with a lot of cash". Mr. Jones agreed that Peter picked him up at home, where he lives with his mother. The Crown asked him "So if you were going to give that money to your mom, there'd be no reason to put it in your pocket and carry it with you to Square One 'cause you could've just put it somewhere safe at home or you could have given it to her at home, right?"
[61] He responded that he was still indecisive about whether he was going to give it to his mother or to his girlfriend.
[62] Then Officer Saraiva came and took him to the police station. At the station, the police told him that he had a lot of drugs and they wanted to know who he worked for but he did not say anything to them. After this, they released him on a promise to appear. Mr. Jones denied that the drugs are his. He has no idea how they got into the car.
[63] That was all of the evidence.
Did the Police Breach Mr. Jones's Rights Under ss. 8 or 9 of the Charter?
Did the Police Detain Mr. Jones?
[64] I will deal first with the issue of whether Officers Patterson and Galavo detained Mr. Jones. R. v. Grant held that,
Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
[65] In R. v. Suberu the court held that,
While a detention is clearly indicated by the existence of physical restraint or a legal obligation to comply with a police demand, a detention can also be grounded when police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police. As discussed more fully in Grant, this is an objective determination, made in light of the circumstances of an encounter as a whole.
However, this latter understanding of detention does not mean that every interaction with the police will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police. This Court's conclusion in Mann that there was an "investigative detention" does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes.
[66] The defence submits that Officers Patterson and Galavo detained Mr. Jones as soon as they took up positions at the driver's and passenger's side of his vehicle.
[67] I agree with the defence. Above, I underlined passages from the officer's testimony on which I rely to conclude that they detained Mr. Jones at the point that they simultaneously took up positions on either side of his car. Their evidence demonstrates clearly that at this juncture they had no intention of letting Mr. Jones leave the area.
[68] The officers did not lay hands on Mr. Jones or on his car, or obstruct the car's path. But I find that in the circumstances of this case, the way that the officers positioned themselves on either side of Mr. Jones's car constituted a type of physical detention. But more importantly, I find that the way that they positioned themselves would send a clear message to "a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police". I find that their actions constituted a psychological detention.
[69] In addition, as noted above, Mr. Jones testified that since he has had dealings with the police before, when the officers took up their positions on either side of his car he knew not to make any sudden moves, or flinch in the car, or make any drastic movements that would draw their attention.
[70] He said that "It's Peel Region cops. I don't want to get in no, like, trouble, like get hurt by them or something or anything can happen 'cause it was happening so fast at the beginning so I just knew that - just keep, keep my hands on the wheel and just keep it simple".
[71] This demonstrates the power of police presence in circumstances such as these. I find that it is clear evidence that subjectively, Mr. Jones felt detained. In the circumstances of this case, I find that this was a reasonable belief.
Was the Detention Contrary to s. 9 of the Charter?
[72] Section 9 of the Charter states that "Everyone has the right not to be arbitrarily detained or imprisoned". R. v. Grant pointed out that "a detention not authorized by law is arbitrary and violates s. 9". Further, the court referred to R. v. Mann, where they "implicitly held that a detention in the absence of at least reasonable suspicion is unlawful and therefore arbitrary within s. 9".
[73] Arguably, the police could have been executing an investigative detention. In Mann, the court observed that the police have "a limited power … to detain for investigative purposes".
[74] Mann held that:
The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.
[75] With regard to the arbitrariness of an investigative detention, Mann held that:
an investigative detention that is carried out in accordance with the common law power recognized in this case will not infringe the detainee's rights under s. 9 of the Charter.
[76] In Mann, the court spoke of the requirements for an investigative detention. They cited R. v Simpson with approval saying that "…the Court of Appeal for Ontario held that articulable cause was not sustained merely by the officer's hunch based on intuition gained by experience".
[77] The court in Mann stated that "police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest".
[78] I will now examine the officers' reasons for approaching Mr. Jones. Officer Patterson said that the way that he had parked his car indicated to him that there was something out of the ordinary occurring. This was clearly only a hunch.
[79] Officer Patterson said that as he was approaching the car he saw Mr. Jones walking away from the wall of the LCBO towards the car. He saw him get into the driver's seat. He said that he continued going towards Mr. Jones to see if he was okay. But there was nothing to indicate that he might not be okay. I do not think that the way that he parked was a reasonable indicium of there possibly being something wrong with him. I find that this was a contrived reason on the part of Officer Patterson. I do not accept it.
[80] Once he was standing by the driver's side of the car he said that Mr. Jones was nervous, fidgety and was looking around. He did not seem comfortable. He moved back and forth in his seat and he was shuffling.
[81] Officer Patterson admitted that at this point he was not investigating any criminal activity. And pursuant to his evidence, I find as a fact that he had not seen the urine stain on the LCBO wall.
[82] Officer Galavo and Mr. Jones said that Officer Patterson was asking him what was going on. I accept this evidence. Officer Patterson did not testify directly about "asking him what was going on", but it is reasonable to conclude that this is what he was doing because he testified that as soon as he saw the way that the car was parked he thought something out of the ordinary was going on and that is why he approached the car.
[83] I acknowledge that Officer Galavo said that although he did not see Mr. Jones urinate on the wall, he saw the urine stain on the wall. He said further that he wanted to speak to Mr. Jones about the urine stain. This could possible provide a justification for an investigative detention, but I find as a fact that Officer Patterson was in charge of this police interaction with Mr. Jones, not Officer Galavo.
[84] Officer Galavo's evidence indicates that he just stood by and concerned himself with officer safety while Officer Patterson took charge. Consequently, I find that in these circumstances it is Officer Patterson's actions and subjective state that take precedence in determining whether Mr. Jones's rights under s. 9 were breached.
[85] I find that at this point Officer Patterson was on a fishing expedition to try to determine what was happening, if anything. All he had was a hunch that something might be up. This type of police activity is not allowed under the law as set forth in Mann. Therefore, I find that the defence discharged its onus to prove on a balance of probabilities that Officer Patterson breached Mr. Jones's right under s. 9 of the Charter not to be arbitrarily detained.
Did the Police Breach Mr. Jones's Right Under s. 8 of the Charter?
[86] Section 8 of the Charter states that "Everyone has the right to be secure against unreasonable search and seizure".
[87] Officer Galavo testified that as he was standing by on the passenger's side of Mr. Jones's car, after what I have found was an arbitrary detention of Mr. Jones by Officer Patterson, he saw Mr. Jones concealing a marijuana cigarette under his right thigh. Mr. Jones denied this, but for reasons that I will state below I find that his credibility is low. I accept Officer Galavo's evidence in this regard. His credibility was not successfully impugned on this point.
[88] Officer Galavo's observation of Mr. Jones hiding the marijuana cigarette under his thigh led to Mr. Jones's arrest for possession of marijuana and to the subsequent search of his car incident to the arrest.
[89] The search of the car led to the finding of the drugs and paraphernalia that were in the car. It also led to the finding of the $1,325 on Mr. Jones's person when Officer Patterson searched him incident to his arrest for the cocaine and marijuana that Officer Galavo had found in his car.
[90] Had it not been for the arbitrary detention, Officer Galavo would not have seen Mr. Jones conceal the marijuana cigarette under his thigh, which led to his arrest for that, which led to the search of his car incident to that arrest, which resulted in the finding of the cocaine and paraphernalia and the money on Mr. Jones's person.
[91] Therefore, I find that the defence discharged the onus of proving on a balance of probabilities that the search of Mr. Jones's car and of his person breached his rights under s. 8 of the Charter because the search was carried out during an illegal detention.
Did the Police Breach Mr. Jones's Rights Under s. 10(a) or 10(b) of the Charter?
[92] Section 10(a) of the Charter states that "Everyone has the right on arrest or detention to be informed promptly of the reasons therefore;"
[93] Section 10(b) of the Charter states that "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right;"
s. 10(a)
[94] In the case at bar, I found that the detention occurred as soon as the officers took up their positions on either side of Mr. Jones's car and Officer Patterson began speaking with him. Within seconds, Officer Galavo told Officer Patterson that he saw Mr. Jones hide the marijuana cigarette and Officer Patterson told him to get out of the car and arrested him for possession of marijuana.
[95] Under these circumstances, I find that there was no time for either of the officers to give Mr. Jones his rights under s. 10(b). Therefore, although the officers did not give Mr. Jones his rights under s. 10(b) "at the outset of [the] investigative detention" Mr. Jones's arrest followed so quickly afterwards that it was not reasonably possible to do so.
[96] Both officers and Mr. Jones agree that Officer Patterson arrested Mr. Jones for possession of the marijuana cigarette almost immediately upon Officer Patterson embarking on his questioning of Mr. Jones.
[97] Therefore, I do not find that the officers breached Mr. Jones's rights under s. 10(a) of the Charter. The defence did not discharge the onus of proving this on a balance of probabilities.
s. 10(b)
[98] In R. v. Suberu the issue was "whether the police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention". The court held that:
… It is our view that this question must be answered in the affirmative … from the moment an individual is detained, s. 10(b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel "without delay". The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.
[99] Officer Patterson testified that he read Mr. Jones his rights to counsel and both cautions right after he took him out of his car and arrested him for possession of the marijuana cigarette. He said that Mr. Jones told him that he understood his rights and that he wanted to call a lawyer then. He did not specify which lawyer he wanted to contact.
[100] With regard to giving Mr. Jones his rights to counsel after Officer Patterson arrested him for possession of the drugs that Officer Galavo found in the car, a fact that increased Mr. Jones's legal jeopardy, in cross-examination, Officer Patterson said that he gave Mr. Jones his rights to counsel "again", which I interpret as meaning a second time in addition to the first reading of his rights to counsel after the arrest for the marijuana cigarette. Mr. Jones disagreed that Officer Patterson gave him his rights to counsel after he arrested him for possession of the marijuana cigarette, but he acknowledged that he gave him his rights to counsel after Officer Galavo found the drugs in the car. Therefore, "again" must refer to this.
[101] I accept that Officer Patterson gave Mr. Jones his rights to counsel when he arrested him for the marijuana cigarette and "again" when he arrested him for the drugs that Officer Galavo found in his car. Officer Patterson made notes of this. His evidence on this point was consistent within itself. It is also consistent with Officer Saraiva's evidence that he told him that Mr. Jones needed to speak to a lawyer. Albeit, I grant that this is not necessarily evidence that he gave him his rights after he arrested him for the marijuana cigarette. It could just refer to when he gave him his rights after he arrested him for the drugs in the car.
[102] However, there was no evidence that would lead me to conclude that he did not give Mr. Jones his rights to counsel after he arrested him for the marijuana cigarette and after he arrested him for the drugs found in the car. As stated above, I found that Mr. Jones's credibility was low for the reasons that I will give below.
[103] Officer Patterson said that he did not think that it was practical to afford Mr. Jones the opportunity to call a lawyer then because he would not have been able to provide him with privacy. He did nothing to help Mr. Jones implement his right to counsel because the officer that books-in the accused at the police station takes care of this.
[104] When Officer Patterson turned over Mr. Jones to Officer Saraiva, he told him that Mr. Jones needed to speak to a lawyer. The evidence is clear that the police acted with alacrity in putting Mr. Jones in contact with his lawyer once they arrived at the police station.
[105] Based on all of the evidence I find that the defence did not discharge the burden upon it on a balance of probabilities that the police breached Mr. Jones's right to counsel.
Credibility Assessment
[106] Mr. Jones testified and, therefore, I instructed myself according to D.W. v. The Queen:
First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[107] Above, I stated that I found Mr. Jones's credibility was low. These are my reasons for that finding and for preferring the officer's evidence over his when I did so.
Mr. Jones said that he had rented the car but that the car was registered under his name. I did not understand this evidence because if it is a rental car that means that it belongs to another who rented it to him.
Mr. Jones's story about a friend named Peter to whom he was introduced by a high school friend, whose name he could not remember is incredible. I detailed his evidence on this issue above. I agree with the Crown that his evidence was "In large part incoherent, weak and badly shaken in cross-examination".
Mr. Jones said that he thought that the officers were going to speak to him about urinating on the wall so he got into the driver's seat. I am not sure how one follows from the other.
Mr. Jones said that after he urinated on the LCBO wall the officers came over to him and asked him what was going on and before he had a chance to answer they arrested him "for possession". He also said that "as soon as he came it was, he told me I was under arrest". The first account is that the officer asked him what was going on and then arrested him. The second account is that the officer just came over to him and arrested him. The two are inconsistent.
Mr. Jones said that the officer that arrested him told him to get out of the car and he put handcuffs on him. Then he told him to sit on the curb. Then both officers searched the car. He professed to not know what was going on, but it was obvious.
Mr. Jones had $1,325 on his person when the police searched him. He said that he had just gotten paid. He was going to give the money to his mother to cover daily expenses for his son who was coming to visit for two months.
But he also said that he was going to give the money either to his girlfriend or to his mother because he is "not good with walking around with a lot of cash". I see this as inconsistent and somewhat contradictory. If he was going to give the money to his mother for daily expenses for his son, why would he be contemplating giving it to his girlfriend? Furthermore, if it was a bad idea for him to carry around that much money, what is the difference if his girlfriend is carrying it around?
Should the Evidence Found in the Car and on Mr. Jones's Person be Excluded Pursuant to s. 24(2) of the Charter?
[108] In R. v. Grant, the court set out a three-part test to determine whether evidence obtained in circumstances of a breach of the Charter should be admitted or excluded.
[109] The first consideration is the seriousness of the Charter breach. The court said,
The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate 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.
This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach…The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.
State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.
[110] I find that the breaches of Mr. Jones's rights under sections 9 and 8 of the Charter are serious. Officer Patterson detained Mr. Jones just because he wanted to see what was "going on". The only reason that Mr. Jones attracted his attention was because he had parked his car diagonally across two or three parking spaces. There was no evidence that this was illegal.
[111] The search of Mr. Jones's car followed directly from the illegal detention and is thereby tainted by it.
[112] Citizens should feel confident that under our legal system they are free from intrusive state action based on simple curiosity. The court cannot allow a state of affairs to develop in which apprehension arises in the minds of members of society simply because they see police officers in parking lots. A person has the right not to be bothered by police officers that just want to satisfy their curiosity about what the person is doing.
[113] The second consideration is the impact on the Charter-protected interests of the accused. In this regard, the court held that:
This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests … The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.
Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.
[114] I find that Mr. Jones "enjoys a high expectation of privacy" in his car. It is not as high as in other locations such as his home, but nevertheless, persons carry important things in their cars, such as, communication devices, wallets, purses, and other things of a very private nature. Therefore, the impact of the violation of this Charter-protected interest was serious.
[115] The last consideration under the Grant test is society's interest in an adjudication on the merits. The court said,
Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law": R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.
The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained (see R. v. Wray, [1971] S.C.R. 272) is inconsistent with the Charter's affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence.
This said, public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.
The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to "balance the interests of truth with the integrity of the justice system": Mann, at para. 57, per Iacobucci J. The court must ask "whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial": R. v. Kitaitchik, 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47, per Doherty J.A.
The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.
[116] The evidence of the drugs and other items found pursuant to the police search of Mr. Jones's car and of his person is reliable. Its exclusion would be fatal to the prosecution's case.
[117] There is no doubt that Mr. Jones was in possession of a significant amount of illegal drugs and that his credibility about what he was doing on the day in question is in serious doubt. Exclusion of this evidence will exact a high toll "on the truth-seeking goal of the criminal trial".
[118] Nevertheless, Parliament, through the Charter of Rights and Freedoms, and the courts, through their interpretation of the Charter, have sent a clear message to the law enforcement sector of our society that although criminality must be uncovered and prosecuted, this must all occur within the boundaries set by the law.
[119] In the case at bar, the police went beyond these boundaries in a significant way. I find that in balancing "the interests of truth with the integrity of the justice system", the inclusion of the evidence would bring the administration of justice into disrepute. Consequently, the evidence is excluded.
[120] There being no other evidence against Mr. Jones, he is found not guilty of all of the charges.
Released: July 19, 2017
Signed: Justice J.W. Bovard