Court Information

Ontario Court of Justice

Date: January 15, 2018

Court File No.: 17-2534, 17-1129

Parties

Between:

Her Majesty the Queen

— AND —

Duane K. Douglas

Before: Justice Robert S. Gee

Heard on: September 25, November 14 and 22, 2017

Reasons for Judgment released on: January 15, 2018

Counsel

Kevin McGilly — counsel for the Crown

Dayna Gulka — counsel for the accused

Introduction

[1] As a result of events that unfolded in the early morning hours of April 24, 2017, the accused, Duane Douglas is facing six charges; possession of cannabis resin, possession for the purpose of trafficking in both fentanyl and cocaine, possession of property under $5000.00 he knew had been obtained by the commission of an offence, prowl by night near a dwelling house and failing to comply with a recognizance.

[2] The accused has alleged a number of Charter breaches and seeks two forms of relief in relation to them. First a stay of proceedings is sought due to an allegation of lost evidence and second, if a stay is not granted, the exclusion of all items, drugs and otherwise seized by the police on April 24.

[3] On agreement of the parties, the Charter applications and the trial proceeded in a blended fashion.

[4] Briefly, the police had a residence in the City of Brantford under surveillance on the overnight hours of April 24. The accused is alleged to have attended at this address on a bicycle at approximately 2:30 am and leave on the same bicycle after a brief stay. Officer Curtis Logan ("Logan"), one of the officers conducting the surveillance, attempted to stop the accused for what he states was a Highway Traffic Act ("HTA") violation and a City of Brantford by-law infraction. The accused fled and was pursued by a number of Brantford Police officers and was eventually located hiding under a small overturned boat in the backyard of a house. A quantity of drugs was located in a small black pouch where the accused was hiding and $2610.50 was located on his person. At the time the accused was subject to a recognizance with a term prohibiting him from possessing any non-medically prescribed drugs.

[5] Logan stated his purpose for attempting to stop the accused was because he observed him riding his bike at night without a light, which is an HTA violation and he was riding on the sidewalk, a City of Brantford by-law infraction. The defence alleges the real reason the police attempted to stop the accused was due to his attendance at the residence under surveillance. The HTA violation and by-law infraction were simply a ruse or pretext to stop him and investigate him for his connection to the residence when there were no lawful grounds to do so. As there were no other lawful reason for stopping him the decision to do so was arbitrary and any search subsequent to an arbitrary detention is also unlawful. As such, the accused's rights pursuant to s. 8 and 9 of the Charter have been violated.

[6] The crown of course disagrees. It argues the HTA and by-law infraction alone provided a valid basis for the attempted stop and at worse this can characterized as a dual purpose stop which was both lawful and Charter compliant.

[7] The lost evidence application by the defence is more nuanced. All radio transmissions of Brantford Police are recorded and stored. As part of disclosure, defence counsel sought the recordings relating to the officers involved in this incident. It seems each individual radio transmission is recorded and stored as a separate digital file. These separate files were purportedly downloaded onto a disc for disclosure and pieced together so they could be played as a continuous recording. At one point there is a four minute gap between transmissions. The accused's position is if the recording immediately following this gap states what he says it does it would imply there are missing recordings. The crown position is the recording does not say what the defence believes and there are no missing pieces.

[8] Seven witnesses in total testified at trial, all police officers. The accused did not testify, nor did he call any other evidence.

Facts

[9] Two officers, Darrin Rattie ("Rattie") and Curtis Logan, were assigned to conduct surveillance on a residence at 89 Peel Street in the City of Brantford on the night of April 24. The officers were working the midnight shift, from midnight to 8:00 am. They were given this assignment by their staff sergeant at parade, which is a briefing held with the entire complement of officers on the midnight shift that night before they began their duties.

[10] According to Rattie, the reason for this surveillance was that the street crimes unit had received information that this residence was being used as a "bicycle chop shop" for high end bikes. Rattie and Logan's role that night was to watch the residence and attempt to identify any persons coming in and out of it.

[11] Logan initially provided a different reason for the surveillance of 89 Peel. He began his testimony on the first day of trial, September 25, 2017 and completed it on the second day, that being November 14, 2017. When asked on his first day of testimony the reason surveillance was being conducted on 89 Peel, he said it was because the street crime unit had advised there was drug activity taking place at the house.

[12] However when asked in cross examination on his second day of testimony why the house was under surveillance he indicated it was for bicycle thefts and criminal activity. For reasons that were never made clear, this change in his testimony was not explored further in cross examination. At the commencement of trial the standard order excluding witnesses was made and all witnesses were advised not to discuss their testimony with anyone and in particular Logan was reminded of this at the conclusion of the first day of his testimony. Given that these are two entirely different reasons for the surveillance, I find it suspicious how Logan's testimony changed to line up with Rattie's. One cannot help but wonder what took place between the two days of testimony that prompted such a change.

[13] Both Rattie and Logan were in uniform that night. Rattie though was in an unmarked van while Logan was in a fully marked cruiser. Rattie was positioned close to the residence under surveillance while Logan was positioned about two blocks south of the residence parked at Colborne and Peel Street. They kept in communication with each other by their radios during the course of the surveillance.

[14] At 2:30 a.m. Rattie observed the accused attend the residence on a bicycle. He stayed for four to five minutes then left on the same bike. Rattie radioed to Logan that the accused, who was unknown to both officers that night, was leaving the residence so that Logan could become involved in identifying the accused.

[15] Logan, upon being advised by Rattie that the accused was leaving 89 Peel Street, left his position and started making his way toward that location. As he approached he observed the accused riding his bike on the sidewalk without a light. At this point Logan attempted to stop the accused.

[16] The accused refused to stop and fled on his bicycle. Logan lost sight of him for a minute or two but continued to patrol the area looking for him. He saw him again nearby on Darling Street. At this time he activated his cruiser's roof lights and yelled for him to stop. The accused responded that he did not have to stop and continued to flee. Logan broadcast over his radio that the accused has fled from him and the last area and direction the accused had fled. Other officers responded and assisted in the search for the accused. He was observed at one point in the area of Buck's Tavern at Colborne and Rawdon Streets.

[17] He was next observed near an apartment building where Logan attended to set up containment. He was then said to be running through backyards and the K9 unit was brought in. He was again seen in a backyard at 104 Arthur Street where the K9 unit's service dog located him hiding under an overturned boat. When he was arrested, a black pouch was located that contained three plastic bags containing controlled substances. In one of the accused's pockets a small amount of cannabis resin was located along with the cash mentioned earlier. In addition to the service dog deployed by the K9 unit, upwards of 7 police officers were involved in the search for and arrest of the accused.

[18] Two of the three bags contained a white powdery substance thought to be cocaine. Together these weighed 21.1 grams. The third bag contained suspected crack cocaine that weighed 6.9 grams. When analyzed, fentanyl was detected. It turns out there was 20.5 grams of powder cocaine and .6 grams of fentanyl. Given the amount of fentanyl, the crown advised at the end of trial that a conviction for possession as opposed to possession for the purpose of trafficking as charged was appropriate.

[19] Logan was asked during his testimony several times why he attempted to stop the accused. He was clear in his testimony that his sole purpose for his decision to stop the accused was he observed the accused committing an HTA violation by not having a light on his bike and that riding on the sidewalk was a by-law infraction. He was adamant in this assertion, restating it several times. Once the accused started running through backyards he stated grounds to arrest him for trespass at night also arose. It was only after being pressed repeatedly in cross examination did he concede that part of his reason to stop the accused was to find out who he was because he was observed leaving 89 Peel Street.

Analysis

Lost Evidence Application

[20] As noted earlier, the defence has alleged the crown or police have lost or destroyed or purposely not disclosed a critical portion of the recordings of the communications taking place between the officers involved in this incident.

[21] The critical portion is a four minute period between 2:36 a.m. and 2:40 a.m. As noted each individual transmission is recorded and stored as a separate digital file. When the defence requested copies of the transmissions the police recorded all the separate files onto one disc so a continuous, sequential recording of the communications was made. The transmission at 2:36 a.m. was an officer who relayed a direction of travel for the accused. The next transmission is at 2:40 a.m. The defence contends this transmission was of an officer saying "that is a no" which implies sometime between 2:36 a.m. and 2:40 a.m. someone asked a question that the officer was responding to that is now missing or has not been disclosed. The crown and the officers who listened to the tape stated the response at 2:40 a.m. was actually "accidental." Apparently if an officer keys his mic and does not speak, he or she will be contacted immediately to see if they are in need of assistance. Accidental keying of mics by the police is something though that on occasion happens. When it does the officer who did it will advise it was an accidental keying so the communications centre knows he or she is not in need of assistance. That is what the crown is alleging took place here.

[22] The recording was played several times at trial and I have listened to it since. I find I am not in a position to resolve what the disputed recording actually states. It is simply too unclear to come to a determination. As such, since the accused bears the onus of satisfying me that the evidence was in fact lost and I cannot do so since I am unable to resolve what was said at the critical time, I find he has failed to do so. As a result his application for a stay is dismissed.

Charter Section 8 and 9

[23] The issue in relation to the section 8 and 9 Charter application is whether Officer Logan had a lawful basis to stop the accused when he attempted to do so.

[24] It was Logan's position that he witnessed the accused committing the HTA and by-law infractions and as such he had the lawful authority to stop him. The accused's connection to 89 Peel Street was at best peripheral to his purpose in investigating him for the HTA infraction. The crown argues Logan was acting lawfully in attempting to stop the accused for the HTA infraction and at worse this was a dual purpose stop, fully compliant with the law.

[25] The accused argues that Logan's real purpose in attempting to stop him was to investigate him for his apparent connection to 89 Peel Street, the house under surveillance. The reliance on the HTA and by-law infractions was simply a pretext or a ruse resorted to by Logan to further his criminal investigation into the activities at 89 Peel Street.

[26] The law on dual purpose stops is clear and well settled; they are legal. Where a stop is made pursuant to some legal authority, like as here the HTA, the fact there may have been a further purpose underlying the decision, does not affect the validity of the stop, provided that purpose is not improper. See: R. v. Nolet, 2010 SCC 24, Brown v. Durham Police Force and R. v. Gayle, [2015] O.J. 5408.

[27] But relying on a legal authority for a stop does have its limits. Reliance on the authority to stop cannot be a ruse or pretext resorted to in order to simply further the other investigative objective. Justice Doherty in Brown (supra) described this limit as follows at par 25:

The appellants argued at trial and on appeal that highway safety concerns were a ruse used by the police to justify the stopping of the appellants, their friends and associates. Had this argument been accepted, s. 216(1) of the HTA could provide no lawful authority for the stops and detentions: R. v. Dedman; R. v. Zammit (1993).

[28] See also R. v. Humphrey, 2010 ONCA 411, where Justice Code stated the following in paragraph 88:

It would clearly violate s. 9 of the Charter to use Highway Traffic Act grounds as a mere "ruse" or "pretext" for a broad and unfounded criminal investigation.

[29] For an even more recent restatement of this principle see R. v. Gonzales, [2017] ONCA 543 paragraphs 41 – 79.

[30] In the present case it is clear that the accused was observed by Logan committing HTA and by-law infractions. It is equally clear, absent the authority granted him to stop the accused for theses infractions, there was no other lawful basis for him to detain the accused.

[31] During their surveillance of 89 Peel Street that night, neither Rattie nor Logan observed any criminal activity or even any other suspicious activity in relation to the residence. The accused up to that point, was the only person observed to have attended at it. As such, there was no basis for Logan to stop the accused for any recent or ongoing criminal activity relative to 89 Peel Street. He in fact admitted at trial he had no grounds to stop or detain the accused pursuant to the Criminal Code or the Controlled Drugs and Substances Act at the time he initiated the stop.

[32] The issue in this case then turns on whether in attempting to conduct the stop of the accused, Logan had a legitimate HTA and by-law enforcement purpose or was he simply using those grounds as a pretext to further his criminal investigation of persons associated with 89 Peel Street.

[33] The Merriam-Webster Dictionary defines a pretext as "a purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs." In this case I find that Officer Logan was using the HTA and by-law infractions as a cloak for his real purpose, which was to further his criminal investigation of persons connected to 89 Peel Street. The reliance on the HTA and by-law was a pretext to further his real purpose for which there were no grounds to stop the accused and as such was unlawful and a violation of his s. 9 Charter right.

[34] I have reached this conclusion for a constellation of reasons. Usually when assessing whether a stop is a lawful dual purpose stop, or a stop based on a pretext, the interactions between the police and the accused from the moment of the stop on are scrutinized. See R. v. Gayle, [2015] ONCJ 575 at paragraph 10 and Nolet (supra) paragraph 4.

[35] This case is somewhat different as the accused did not stop at the direction of Officer Logan. In coming to my conclusion I have looked to the entirety of the circumstances that night and in particular the response of the police to the situation.

[36] The first thing to note is the purpose for which Rattie and Logan were there that night. They were there for a single purpose, to keep 89 Peel Street under surveillance for some ill-defined criminal activity and, as Rattie stated, to identify persons associated with it. This was also the stated purpose of the surveillance that night by Officer Lehman who described it as intelligence gathering and to obtain the identities of persons associated with the residence.

[37] The next thing to note, is the manner in which Logan initiated the interaction with the accused. From his initial static position, he did not see the accused leave the residence, this information was radioed to him by Rattie. When advised by Rattie that the accused was leaving the residence, Logan left his position and moved toward the residence to engage the accused. He did this at a time before he observed him riding on the sidewalk without a light on the bike. This I find is clear evidence he intended to engage and stop the accused prior to the HTA grounds being known to him.

[38] Further, there was no evidence from Logan that in riding as he was, on the sidewalk without a light, was creating any actual safety concerns. The evidence is that the area was lit by street lighting. There is no evidence of the amount of vehicular traffic or pedestrians if any, that may have been in the area on this day at 2:30 a.m. No actual safety concerns were ever articulated.

[39] The final consideration is the police response to the accused's refusal to stop. It was completely disproportionate to the exceedingly minor infractions observed. Upwards of seven officers responded to the area to set up containment and search for the accused. As well the K9 unit responded to assist with tracking the accused. The dog was in fact deployed to flush the accused from his hiding spot under the boat. None of the officers who testified could ever recall a situation in their careers where such resources were deployed to arrest someone for not having a light on their bike. This response belies any notion that the attempt to stop the accused was for anything other than his connection to 89 Peel Street. Assessing the circumstances as a whole, Logan's assertion this stop was initiated for an HTA violation rings hollow and I do not believe his testimony in this regard.

[40] It is for these reasons I find that the attempt to stop the accused on the night of April 24, 2017 was arbitrary and unlawful.

[41] Any search conducted as an adjunct to an arbitrary detention would also be unlawful.

[42] One may ask then, if the allegation of trespass at night would provide a basis for the detention and subsequent search. Again it would not. Since Officer Logan's reason for attempting to stop the accused was arbitrary and as such unlawful, the accused was not obligated to submit to it. See Gayle (supra) paragraph 29. He was in fact correct, when he told Logan he did not have to stop. It flows then that the police were pursuing him in order to effect an unlawful detention. The police cannot unlawfully pursue him and then rely on the reaction to that pursuit to convert what was unlawful into something lawful.

Charter Section 10(a) and (b)

[43] The defence has alleged two further albeit less serious, breaches of the accused's Charter rights. On April 24, 2017 when he was first located the accused was arrested by Officer Jonathan Thompson for the trespass at night charge and provided with his rights to counsel and cautioned. Shortly after the drugs were found, Thompson advised the accused he was under arrest for drug related charges but he was not re-read his rights to counsel or cautioned again. When he arrived at the police station not long after, the accused was provided an opportunity to contact counsel and he did so. No statement or other evidence was obtained from the accused subsequent to this. This the defence alleges is a violation of section 10(b) of the Charter. Whenever a person's jeopardy changes to a significant degree, the police are obligated to re-advise them of their rights to counsel and caution them again.

[44] A breach of the accused's section 10 Charter rights is also said to have occurred on September 14, 2017. On that day the accused was taken from the place where he had been detained and brought to the Brantford police station. He was brought because the analysis of the drugs revealed .6 grams of the powdered drugs was fentanyl. As such, he was charged with this new offence, fingerprinted and processed but never provided with his rights to counsel or cautioned. It should be noted though that defence counsel had been advised this was going to take place. Again, no statements were obtained from the accused at this time.

[45] These were both breaches of the accused's section 10 rights, albeit much more minor than the section 8 and 9 breaches discussed earlier and alone would not have attracted any form of relief pursuant to section 24(2). At any time when a person is arrested or if their jeopardy changes after an arrest, the police are obligated to comply with the obligations imposed by section 10 of the Charter and in both of these incidents they did not.

Section 24(2)

[46] The principles that will determine whether evidence will be excluded as a result of Charter breaches are the three lines of inquiry mandated by R. v. Grant 2009 SCC 32. The first line of inquiry is the seriousness of the Charter-infringing state conduct. The second is the impact on the Charter-protected interests of the accused and the third is society's interest in an adjudication on the merits. All these lines of inquiry must be weighed. No rules govern how any balance is to be struck (see paragraphs 72 to 86 of Grant).

[47] This case, involved serious police misconduct. Officer Logan had no grounds to believe the accused was in anyway implicated in any criminal activity. Additionally, Logan knew he had no grounds to detain the accused absent the HTA infraction, but yet chose to engage in a ruse in order to criminally investigate the accused. Moreover Officers Rattie and Logan were experienced officers and the law in this area was not uncertain nor had it recently changed.

[48] The action of the police also had a serious negative impact on the accused's Charter-protected interests. It impacted his liberty rights. He had a right to be left alone and when he tried to exercise those rights, he was chased by numerous police and set upon by a police service dog.

[49] Compounding the seriousness of these breaches and their impact on the accused, it cannot be forgotten that in addition to the more serious section 8 and 9 breaches the police also displayed a further lack of concern for the accused's Charter-protected rights by the two more minor breaches of the accused's section 10 rights.

[50] On the third line of inquiry, society always has an interest in the adjudication of criminal charges on their merits. The evidence here is real and reliable and is critical to the crown's case. The charges are serious and if the evidence is excluded, a person who is guilty will go free. As a result, this line of inquiry almost always favours inclusion.

[51] In this case I find the police misconduct was serious and the impact of the breaches on the accused significant. On balance these two factors present a formidable case for exclusion, one that cannot be overcome by society's interests in an adjudication on the merits. I find this case requires exclusion of the evidence.

Conclusion

[52] Given the exclusion of the evidence seized in this matter, all charges except the trespass at night must be dismissed as the crown has offered no other admissible evidence pointing to the accused's guilt. As for the trespass at night charge, that is premised on the accused running through backyards while being chased by the police. As I have found the pursuit of him by the police was unlawful, his presence in the back yards as he attempted to avoid an unlawful detention provided a lawful excuse for his presence on the property as contemplated by section 177 of the Criminal Code and as such that charge will be dismissed as well.

Signed: Justice Robert S. Gee