Court Information
Ontario Court of Justice
Date: 2018-01-23
Court File No.: Central East - Newmarket - 16-01825-00
Parties
Between:
Her Majesty the Queen
— And —
Charles Lee Bhagiratti
Before the Court
Justice: John McInnes
Heard: October 23, 24 and December 21, 2017
Reasons for Judgment Released: January 23, 2018
Counsel
For the Crown: J. Leung
For the Defendant Charles Bhagiratti: G. Lafontaine
Judgment
McINNES J.:
[1] Introduction
Charles Bhagiratti was charged with possession of a controlled substance for the purpose of trafficking. Police found approximately one kilogram of marijuana and other evidence indicative of trafficking in his car in the course of a purported Highway Traffic Act stop. On December 21, 2017, I allowed his application to exclude this evidence under sections 9 and 24(2) of the Charter and dismissed the charge against him with reasons to follow. These are those reasons.
1. The Detention and Arrest
[2] Initial Observation
York Regional Police Constable Kevin Bell was on general patrol in a marked police vehicle the night of February 12, 2016. At about ten o'clock he was driving on Indigo St., a cul-de-sac in a residential section of Richmond Hill, when his attention was drawn to several stationary vehicles at the side of the roadway ahead. One of these vehicles was a 2008 Saturn. As he passed by he noticed a man who appeared to be in his 30s sitting alone in the vehicle in the driver's seat.
[3] License Plate Check
PC Bell continued driving, looping around until he had come full circle and was once again approaching the Saturn from behind, while he checked the Saturn's license plate on his in-car computer. He learned the vehicle was registered to one Charles W. Bhagiratti, a 61-year old with a Scarborough address and that it was also "associated" with a 35-year old male charged with possession of a controlled substance for the purpose of trafficking with the same name as the registered owner except for the middle initial.
[4] Second Observation
PC Bell pulled up alongside the Saturn, noticing it had moved forward about 30 feet and its engine was still running. The same man was sitting in the driver's seat and there was a second vehicle occupied by a lone male in the driver's seat parked approximately 25 to 35 feet behind it with its engine also running.
[5] Officer's Suspicions
Once PC Bell was stopped next to the Saturn the man in the driver's seat – the defendant - got out of the vehicle and came to speak to PC Bell through his passenger side window. PC Bell felt the defendant did this in order to "separate himself" from the Saturn, likely because there was something in the vehicle the defendant did not want him to see. He also surmised that the running vehicle parked behind the Saturn with its lone male occupant signified a possible drug transaction between the two men in progress.
[6] Initiation of Stop
In response to the defendant's approach, PC Bell quickly entered an advisory on his in-car computer he was conducting a "traffic stop", exited and circled around the front of his cruiser and asked the defendant what he was doing in the area and demanding production of his driver's license, ownership and insurance.
[7] Observations Upon Vehicle Access
The defendant provided his license which he had on him and then returned to the Saturn to locate the other two documents. He opened the front driver side door and looked inside the vehicle for the documents. At that point PC Bell "started making observations of what he was doing and of the vehicle itself". PC Bell testified that as soon as the defendant open the door he detected an odour of marijuana that emanated from the vehicle, a very strong odour of unburnt marijuana. He also observed a backpack on the floor behind this driver's seat and a silver bag wedged between the front two seats in the centre console.
[8] Arrest
As the defendant was reaching over the passenger side for his documents PC Bell observed approximately 10 g of marijuana on the front right passenger seat sitting on top of the grey scale. He arrested the defendant for possession of cannabis and breach of recognizance and then radioed for assistance.
[9] Search and Seizure
PC Bell searched the defendant incident to his arrest and located 705 Dollars in Canadian currency 2 g of marijuana in his pocket and various other personal items. PC Amy Bell arrived on scene shortly after and searched the vehicle incident to arrest. She found and seized just under a kilogram of marijuana and other evidence indicative of trafficking. The defendant concedes the Crown has proven the charge if the evidence is not excluded.
2. PC Bell's Stated Reasons for the "Traffic Stop"
[10] In-Chief Testimony
PC Bell testified in-chief that he decided to do the "traffic stop" because the apparent age of the person he saw in the Saturn was consistent with the age of the person associated with the vehicle on CPIC "…who was on current charges, so there was a possibility he was driving the vehicle" and because he wanted to know what the vehicle was doing in the area given that the vehicle's registered owner lived in Scarborough "and it did not appear to be associated with any of the residences around where it was parked".
[11] Cross-Examination - Break and Enters
After conceding in cross-examination that driving a vehicle registered to someone else who resides in a different part of the GTA is neither suspicious nor unusual, PC Bell volunteered that "in this area we have a lot of break and enters" and that it was his duty to "investigate things that appear to be out of place".
[12] Cross-Examination - Detention Notice
When challenged in cross-examination about whether he had informed the defendant of the reason for his detention, PC Bell testified "I didn't advise him of any detention, I told him I was stopping him and these were the documents I required" because he was not the registered owner and had not been identified. Confronted with the description of this exchange recorded in his notes – that he asked the defendant what he was doing in the area and demanded his documents – PC Bell conceded he was uncertain whether he said anything else to the defendant about the reason for the "traffic stop" but thought he "would have" done so.
3. Analysis
[13] Charter Section 9 - Arbitrary Detention
The defendant submits PC Bell violated his s.9 Charter right against arbitrary detention. There is no dispute that PC Bell's interaction with the defendant constituted a detention. The defendant's Charter claim thus turns on "whether some lawful authority sanctions the detention" and if so "whether the detention falls within or beyond any applicable limits on that authority": R v Gonzales, 2017 ONCA 543, para. 53.
[14] Crown's Submission - Dual Purpose Stop
The Crown submits the detention constituted a valid traffic stop authorized by s.216(1) of the Highway Traffic Act ("HTA") because at least one of the officer's purposes was to check the defendant's driver's license and the vehicle's ownership and insurance card and the mere existence of another unrelated but legitimate investigative purpose for the stop does not render it unlawful.
[15] Dual Purpose Stops - Legal Principle
As an abstract proposition "dual purpose" traffic stops are constitutionally permissible: Brown v Durham Regional Police Force (1998), 131 CCC (3d) 1 (Ont CA), paras. 31, 34, 37-39 and 45; R v Coates, [2003] OJ 2295 (CA); Gonzales, para. 58. This does not assist the Crown, however, unless the HTA authority to conduct a traffic stop was actually engaged on the facts of this case.
[16] Highway Traffic Act Section 216(1)
Section 216(1) reads:
216 (1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop and the driver of a vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop. 2016, c. 5, Sched. 12, s. 9.
[17] Whether a Traffic Stop Occurred
It is questionable whether the detention here could even constitute a "traffic stop" within the meaning of s.216(1). PC Bell never "signaled or requested" the defendant "to stop" the Saturn because it was never in motion in his presence and the defendant had already shut off its engine and exited by the time the officer effected the purported traffic stop.
[18] Document Production Authority
However, ss. 7(5) and 33 of the HTA and s.3(1) of the Compulsory Automobile Insurance Act ("CAIA"), respectively, require drivers to "surrender" the vehicle permit, their driver's license and the insurance card "for inspection [or reasonable inspection] on demand of a police officer". These sections implicitly empower police officers to demand production of these documents from, respectively, "every driver of a motor vehicle", "every driver of a motor vehicle…while he or she is in charge of a motor vehicle" and "every operator of a motor vehicle".
[19] Meaning of "Driver" and "Operator"
While the defendant had already shut off the motor and exited the vehicle by the time PC Bell demanded these documents, the terms "driver" and "operator" must contemplate some past signification to avoid absurd results: R v Rubb, [1997] OJ 3782 (Prov Div); R v Cripps, [2001] OJ 665 (CJ), paras. 18-19. Consistent with this interpretation, the meaning of the phrase "in charge of a motor vehicle" as used in s.33 of the HTA "must be wider than actual present physical custody and can include circumstances where the person has only recently and temporarily relinquished physical custody": R v Richards, [1999] OJ 1420 (CA), paras. 13-19.
[20] Factual Finding - Driver Status
Bearing in mind this legal context and the fact the defendant was seen occupying the driver's seat of the running albeit stationary motor vehicle moments earlier, I find as a fact that he was still the "driver", "operator" and person "in charge" of the Saturn when PC Bell demanded his driver's license, ownership and insurance.
[21] Detention Power
It may be the detention power conferred by s.216(1) read in conjunction with ss. 7(5) and 33 of the HTA and s.3(1) of the CAIA extends to situations like this one where the motor vehicle is already stopped in the physical sense by the time the officer effects the "traffic stop". Alternatively, the power to briefly detain to demand documents may flow directly from those "document production" sections themselves.
[22] Limits on Detention Power
Either way, however, the power to detain under the HTA scheme is not unlimited, as Watt J.A. explained in Gonzales, para. 60:
Stops made under s. 216(1) will not result in an arbitrary detention provided the decision to stop is made in accordance with some standard or standards which promote the legislative purpose underlying the statutory authorization for the stop, that is to say, road safety concerns: Brown v. Durham, at paras. 51-54. Where road safety concerns are removed as a basis for the stop, then powers associated with and predicated upon those concerns cannot be summoned to legitimize the stop and some other legal authority must be found as a sponsor: Simpson, at pp. 492-493. [emphasis added]
[23] Officer's Actual Purpose
Here, PC Bell never testified as to any purpose related to road safety concerns. Leaving aside reservations I have about relying on his evidence at all given his shifting explanations for his decision to stop the defendant, the officer himself testified that he stopped the defendant because he wanted to know what the Saturn – or more precisely, the defendant – was doing in the area and to identify its driver and more particularly to determine if its driver was the Charles Bhagiratti who currently faced a CDSA charge and who was perhaps in the process of concluding a drug transaction. He asked to see the defendant's driver's license for that reason and for that reason only. I find that the legal interests animating the HTA stop power were the furthest thing from his mind.
[24] Unlawful Detention and Search
PC Bell's common law and statutory duty to investigate crime and apprehend those who may be responsible justified an investigation but "a police officer has no general authority to detain a person whenever that detention will assist the police officer in the execution of their duty": Gonzales, para. 75. PC Bell had no grounds for an investigative detention. It follows that PC Bell detained and then searched the defendant unlawfully and thus infringed his rights under ss. 8 and 9 of the Charter.
[25] Section 24(2) Analysis - Grant Test
In applying s.24(2) of the Charter I must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard for (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the Charter-protected interests of the accused; and, (iii) society's interest in the adjudication of the case on its merits: R v Grant, 2009 SCC 32, [2009] 2 SCR 353; R v Harrison, 2009 SCC 34, [2009] 2 SCR 494.
[26] Gonzales Comparison
Like this case, Gonzales involved conduct of members of the York Regional Police and the following findings, especially the highlighted portions, are equally applicable here:
This case involves serious police misconduct. Detective Ward had no grounds to believe that the occupants of the van had anything to do with the daytime residential break-ins he was investigating. He had seen the same van with two occupants enter a garage on the street five days earlier. He concluded then that there was no connection of the van or its occupants to the break-ins. The officer was not there doing traffic enforcement and had no traffic-related reason to pull the vehicle over. The officer knew or should have known that he had no basis to signal the vehicle to stop and to detain its occupants.
Detective Ward was an experienced police officer. He was not faced with a situation in which the law was uncertain or had recently changed. The controlling legal principles were well-established. Little, if anything, can be offered in mitigation.
A final point on the seriousness of the Charter infringing state conduct. Evidence emerged from the officers at trial that this stop was part of a larger pattern of pulling over "suspicious" persons and asking them what they were doing in the neighbourhood. That the misconduct was part of a pattern of abuse tends to support exclusion of the evidence.
Gonzales, supra at paras. 168-170 [emphasis added]
[27] First Grant Factor - Seriousness of Breach
The breach was serious and the first Grant criterion favours exclusion.
[28] Second Grant Factor - Impact on Accused
Detaining the defendant in these circumstances was neither a technical nor a fleeting Charter breach and it constituted a significant and substantial abrogation of his Charter-protected liberty interest. The second Grant criterion favours exclusion.
[29] Third Grant Factor - Societal Interest
The evidence seized from the defendant's vehicle is reliable evidence and essential to Crown's case. There is a societal interest in an adjudication of the case on its merits and as is usually the case, the third Grant criterion weighs against exclusion.
[30] Balancing the Grant Factors
Ultimately, balancing the Grant factors on the facts of this case comes down to my determination of "whether admitting the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct": R v Rehill, 2015 ONSC 6025, para. 28. Having particular regard for Mr. Justice Watt's guidance in the quoted passage from Gonzales, I find that admitting the evidence would have precisely that effect. This outweighs society's interest in an adjudication on the merits. Admitting this evidence would bring the administration of justice into disrepute and so it must be excluded under s.24(2) of the Charter.
[31] Disposition
Accordingly, the charge is dismissed.
Released: January 23, 2018
Signed: Justice John McInnes