Court Information
Ontario Court of Justice
Date: 2018-11-23
Court File No.: Newmarket 18-05253
Parties
Between:
Her Majesty the Queen
— And —
Raheem Jamal Saunders & Mikel Stewart
Judicial Officer and Counsel
Before: Justice David S. Rose
Heard on: October 11, November 8, 2018
Reasons for Judgment released on: November 23, 2018
Counsel:
- Mr. Arvisu – counsel for the Crown
- Ms. Guido – counsel for the accused Raheem Saunders
- Mr. Abbey – counsel for the accused Mikel Stewart
Charges
[1] Mr. Saunders and Mr. Stewart are together charged with the following offences on March 14, 2018:
- Possession of Diacetylmorphine for the purpose of trafficking;
- Possession of Cocaine for the purpose of trafficking;
- Possession of Fentanyl for the purpose of trafficking.
Overview
[2] The charges arose out of a traffic stop conducted by the York Regional Police on March 14, 2018. The investigation was relatively brief – a matter of minutes. The Crown called two police witnesses, and filed numerous documents including an expert report regarding trafficking controlled substances, and Certificates of Analysis. Both accused argued Charter Motions to exclude evidence. Mr. Saunders also argued that if the Charter Motions were dismissed he was factually not guilty. Neither accused called any evidence at the trial.
Evidence – The Traffic Stop
[3] Cst. Scrymgeour was on general patrol on March 14, 2018. Part of his duties include entering licence plates of the various vehicles on the road into the battery of databases available in a police car. That involves entering a licence plate into his on-board computer. The computer sends the query and then various databases return information directly to the officer in the car – but not all at once.
[4] Cst. Scrymgeour was alone that day in his cruiser driving eastbound on Highway 7 at about 5:40pm querying cars in his area. He saw a 2013 Honda Civic with licence plate CVPX 169. It was a fair distance away but that was one of the licence plates Scrymgeour ran. The query came back from the Ministry of Transportation that the Honda was registered to Mikel Stewart at an address in Brampton, with a date of birth. The Honda was not the only licence plate he had run in that time frame. The computer query returned nothing glaring or unusual from the Ministry records so he made a right turn, turning his vehicle south bound, away from Highway 7. At that point a CPIC query returned to the car about the Honda. The registered owner of the car Mikel Stewart was accused of several crimes in Windsor and was on a recognizance. The CPIC query gave the conditions of the Recognizance and a photograph of Mikel Stewart.
[5] Mr. Stewart's recognizance had several conditions. He was not to be in possession of unlawful drugs, or weigh scales. He was permitted one cell phone only and he was not to associate with Josh Isaacs. The bail was for drug trafficking charges.
[6] Once this information came onto Cst. Scrymgeour's computer screen he made a u-turn and returned to Highway 7. That u-turn was made 10 seconds after he had turned off Highway 7. That permitted him to see the Honda Civic as it passed in front of him eastbound. The car had two occupants, both male. He could not see the faces of the occupants, just their approximate age which was 18-30. He believed both men were black with shorter hair but not much else. It was then 5:48pm. Once Scrymgeour's car re-entered Highway 7 it was directly behind the Honda.
[7] Cst. Scrymgeour activated his roof lights to stop the Honda, which he did within seconds. The sequence of the traffic stop was captured by Cst. Scrymgeour's in car dash cam. The dash cam recording was of real help in deciding this case.
[8] Scrymgeour said he stopped the car under the Highway Traffic Act (HTA) to ensure that the vehicle had all its documentation. He also testified that he was aware that the vehicle was owned by an accused person and he wanted to ensure that Mr. Stewart was not breaching any of his bail conditions. Upon approaching the car Cst. Scrymgeour looked in the car and could see the driver. Having seen the picture of Mr. Stewart on his in car computer he was satisfied of his identity.
[9] The exchange at the side of the road was quite polite, and the arrest happened very quickly:
Officer Scrymgeour: Hey guys.
Mr. Stewart: What's up?
Officer Scrymgeour: Sorry to bother you. How are you doing, man?
Mr. Saunders: I'm good.
Officer Scrymgeour: so the reason why I stopped you is that I ran the licence plate and the owner of this vehicle is currently on conditions not to be around certain people.
Mr. Stewart: yeah.
Officer Scrymgeour: I want to confirm if you are the owner…
Mr. Stewart: yeah.
Officer Scrymgeour:…that you're not breaking those conditions, cool?
Mr. Stewart: No, no, no.
Officer Scrymgeour: Okay cool, who are you not to be supposed to be around, man?
Mr. Stewart: I'm not supposed to be around Joshua Isaac.
Officer Scrymgeour: Joshua Isaac?
Mr. Stewart: Yeah.
Officer Scrymgeour: Is this Joshua Isaac?
Mr. Stewart: No, no, no, no. I swear to god.
Officer Scrymgeour: Okay. Guys how much weed is in the car, because I can smell it.
Mr. Stewart: No weed, no weed.
Officer Scrymgeour: I know the difference between weed and not weed, so stop.
Mr. Stewart: All right.
Officer Scrymgeour: Okay, All right, cool. Do me a favour, can you turn the car off, man?
Mr. Stewart: Yeah;
Officer Scrymgeour: Okay, cool. Can I see your keys? Yeah. All right. Do you have any ID, man?
Mr. Saunders: No, not on me.
Officer Scrymgeour: No, okay. So you guys are both under arrest for possession of marijuana.
Mr. Stewart: What? For a spliff?
Officer Scrymgeour: For a spliff.
Mr. Stewart: Holy shit. This is my spliff.
Officer Scrymgeour. That's just the way it going to be, okay, all right.
[10] The time from when PC Scrymgeour first approached the window of the car to the time he told both men they were under arrest was less than a minute. Both accused were then under arrest for possession of a controlled substance, namely marijuana. It was 5:51pm. Mr. Saunders falsely identified himself as Sean Campbell, with a date of birth of January 1, 1993.
[11] Officer Scrymgeour could see that Mr. Saunders, the passenger, had a satchel on his body which he was holding tightly. Scrymgeour told him, while he was still in the car, "I need you to keep your hands were I can see them. Don't do anything stupid, all right?"
[12] Mr. Saunders then got out of the passenger seat. Scrymgeour asked him to hand over the satchel, which he did. It was placed on the roof of the car. Scrymgeour asked Mr. Saunders what his real name was and he continued to say that it was Sean Campbell.
[13] At 5:58pm Officer Scrymgeour gave both accused their rights to counsel. To quote, he said,
Officer Scrymgeour: So guys I want you to both understand that you 100 percent have the right to a lawyer.
Mr. Stewart: Yeah, I want to call right now.
Officer Scrymgeour: any everything that you say can be used as evidence. Do you understand that?
Mr. Stewart: Yeah.
Officer Scrymgeour: Would you like to speak with a lawyer, the both of you?
Mr. Stewart: Yeah.
[14] Cst. Harron arrived on scene and met with Officer Scrymgeour, who directed him to arrest Mr. Stewart the driver. The arrest of Mr. Stewart happened at 5:57. Scrymgeour also searched the Honda incident to arrest and found cell phones, packaging bags and a digital drug scale. 4.3 g of marijuana was seized on the passenger side of the car wedged between in the area between the seat and door. A marijuana cigarette, or 'spliff' was seized from Mr. Stewart.
[15] Mr. Stewart was seen on the video at 5:54:46 throwing something out of the driver's window onto the roadway. Cst. Harron retrieved it. It turned out to be two plastic wrapped packages containing 10.17 g of heroin and 15.33 g of cocaine.
[16] Mr. Saunders would correctly identify himself while in transit to the police station in custody.
[17] In cross-examination Cst. Scrymgeour was asked why, if he was investigating for standard vehicle and driver documents he didn't first ask for them, and his answer was that if he had seen the passenger in the front seat of the car was a female it would have changed things because bail compliance was no longer an issue. The non-association term on Mr. Stewart's bail was directed at a male. He was pressed on the reason for stopping the car and said that his authority to stop was the HTA but he also had in mind checking for a possible bail violation. He turned his car around because of a possible breach.
[18] PC Harron, the officer who arrested Mr. Stewart also testified. He gave Mr Stewart his rights to counsel at the scene. The Crown also led an expert report which supported the conclusion that the drug seizures at the scene were for the purpose of trafficking.
Issues
[19] This relatively brief roadside interaction gives rise to a number of Charter based arguments on behalf of both Mr. Stewart and Mr. Saunders. They claim that their rights under s.9 were violated because the initial traffic stop had no legal basis and was therefore arbitrary; that the ensuing arrest was therefore unlawful and the search of the vehicle and both men incidental was unreasonable because the arrest itself was unlawful; that their rights under s. 10 were violated because they were never informed of the reason for the stop and were not given constitutionally valid information about rights to counsel.
[20] I would take each argument in turn.
Section 9 – The Stop
[21] Cst. Scrymgeour testified that he had two reasons for the traffic stop. One was his power under the HTA to check for documentation and the other was the possibility of a bail violation.
[22] Cst. Scrymgeour's evidence has two frailties. The first is that his statement that he stopped the Honda to check for documentation does not square up with the evidence. When Scrymgeour ran the plate of the Honda he received information in two batches. The first one told him that there was nothing out of the ordinary with the car or the driver. He therefore pulled off Highway 7 to pursue other duties. It was only when the second piece of information was received – that the owner of the car was on a bail – that he decided to do a U-turn and stop the car. It was the bail information which changed the hands off approach to a decision to stop the car. Had genuine HTA concerns been the reason, Cst. Scrymgeour would have stopped the car after receiving the first batch of information without more. Put another way, his action in stopping the car belie his real concern which was a bail compliance check. The HTA may well furnish a reason to stop a car, but that wasn't the reason here. His evidence of an HTA stop was a pretext.
[23] It is also a frailty in his evidence that the first thing he said to the accused was "So the reason I stopped you is that I ran the licence plate and the owner of this vehicle is currently on conditions not to be around certain people". From the beginning his stated interest was bail compliance, not the HTA. His roadside statements are externally inconsistent with his evidence in Court.
[24] It is another frailty in his evidence that when he was confronted in Court with the fact that he never bothered to ask for documents from Mr. Stewart – as one would expect when the reason for a vehicle stop is to search for documents – he said that if the passenger had turned out to be a female he would have asked for the vehicle and driver documents from the start. That is internally inconsistent with his other evidence that he saw two black males in the car as it passed before him on Highway 7. The dash cam video indeed records the Honda passing directly in front of Scrymgeour's police car while the Honda went through the intersection on a green light and Scrymgeour's was at the red light waiting to turn right. Scrymgeour was only a few meters from the passenger – and looking directly at him – as the Honda passed in front of him. I believe his evidence that he saw two black males in the Honda before he stopped it. His answer in Court that he wasn't sure if the passenger was a male or not is baffling.
[25] The reason for the stop was, as PC Scrymgeour said at the roadside, for bail compliance, not HTA purposes. There was no apparent HTA violation and no genuine interest in checking the driver of the Honda to confirm that he had the necessary documentation. This was a pre-text stop to check for possible bail compliance. The HTA cannot furnish a legal basis for the detention of the motor vehicle or its occupants under the circumstances, see Brown v. Durham Regional Police (1998), 131 C.C.C. (3d) 1 (Ont. C.A.), R. v. Gonzales 2017 ONCA 543. This is not a case where the Crown can rely on a secondary purpose for the detention, namely regulatory and criminal investigatory purposes which are co-existent, see for eg. R. v. Nolet 2010 SCC 24, [2010] 1 S.C.R. 851. I agree with Duncan J. that bail compliance is not, in and of itself, a lawful basis to detain an individual, see R. v. Gayle 2015 ONCJ 575. There may well be situations where the investigating officer has some basis to detain for bail compliance, for example where the car is registered to a person under conditions not to drive at that time or late at night on a curfew condition. This case has none of those features. PC Scrymgeour was acting in lawful execution of his duties, but there was no constellation of objectively discernable facts which furnished PC Scrymgeour with a reasonable suspicion to detain the car containing Messrs. Stewart and Saunders see R. v. Mann 2004 SCC 52, R. v. Simpson 60 OAC 327 (C.A.).
[26] In the circumstances both accused have established on a balance of probabilities that their rights under s. 9 of the Charter were violated when the car in which they were travelling was detained arbitrarily.
The Arrest & Search
[27] Leaving until later my finding that the Honda was arbitrarily detained, when PC Scrymgeour spoke with both accused at the side of the road, the basis for the arrest at 5:51 was both visual and olfactory. Scrymgeour could smell marijuana and see flakes of it on Mr. Saunders. He easily had grounds to arrest both men, and his search incidental to arrest flowed from that arrest. The s. 8 argument is dismissed subject to my findings later about the effect of the s. 9 violation on the lawfulness of the arrest and search incident to arrest.
Section 10 Allegations
[28] Both accused argue that their rights under s. 10 were violated in two ways. The first is that both accused were not informed of the reason for the detention and then arrest, and the second alleges constitutionally deficient information regarding their rights to counsel.
[29] The first argument is easy to deal with. From the moment of the encounter PC Scrymgeour advised both men of the reason for the stop. As he put it,
…so the reason why I stopped you is that I ran the licence plate and the owner of this vehicle is currently on conditions not to be around certain people.
[30] Within seconds he would say that he smelled marijuana and tell them that they were both being arrested for that offence. There can be no mistake that the reason for the stop was given right from the beginning. This situation was fluid. What began as a bail compliance check turned up evidence of marijuana possession. There was no effective delay from the time that marijuana was observed to the time that PC Scrymgeour told both men that they were being arrested for that. Accordingly the s. 10(a) argument is dismissed.
Informational Component – Section 10(b)
[31] There is no question that the information given to both accused at the time of their arrest for possession of marijuana lacked crucial pieces of information – immediacy and the fact that the arrestees could speak with any lawyer they wanted or a free duty counsel. The information given did not comply with minimum informational standards for the s. 10(b) caution from R. v. Bartle (1994), 33 C.R. (4th) 1 (SCC). There is a s. 10(b) breach.
Admissibility – Section 24(2) Under the Charter
[32] The s. 9 breach is serious. There was no legal basis to stop the Honda that afternoon. As I have found, this was a pre-text stop which was not grounded in the Highway Traffic Act or any common law authority to detain for a bail compliance check. What elevates the Charter breach to the very serious end of the spectrum is that PC Scrymgeour attempted to explain the stop as justified under the HTA. This led him to give testimony which was internally inconsistent, namely telling the parties at the scene that they were stopped for a bail compliance check when in court he tried to say that it was an HTA stop. This was not helpful to the fact finding process.
[33] There is nothing in the evidence which might mitigate the police conduct. This was not a Charter violation which was just over the line or one for which there is an ambiguity in the law. The Court should distance itself from the practise of arbitrary detention and pre-text stops.
[34] The s. 10(b) violation is less serious. PC Scrymgeour told both accused of their rights to counsel but did not get it right. I accept his testimony that once the car was stopped the situation was fluid and dynamic.
[35] The s. 9 breach alone is sufficiently serious that the first prong of the s. 24(2) pulls towards exclusion of evidence – and strongly so. That there is a second Charter violation only strengthens that conclusion.
[36] The effect on the Charter protected interests was significant. Because of the unlawful detention Messrs. Saunders and Stewart were put in a place where they could be subject to a visual and olfactory search by PC Scrymgeour which resulted in their immediate arrest for a drug charge. The s. 9 violation directly and immediately led to their arrest and a search incidental to arrest. The resulting invasiveness on both accused was significant. The impact on their Charter protected interests was very great indeed. The s. 9 violation itself strongly pulls towards exclusion of the evidence on the second prong of the test from R. v. Grant 2009 SCC 32.
[37] Where the first two factors from Grant both pull strongly towards either exclusion or admission of the evidence the third factor plays less of a role see R. v. McGuffie 2016 ONCA 365. In this case the evidence is reliable and critical to the Crown case. Society has a very great interest in a trial on the merits when the charge is Possession for the Purpose of trafficking a Schedule 1 substance. The third factor pulls toward admission of the evidence.
[38] Balancing all three factors I have no difficulty in excluding the drug seizures from the evidence in the case.
[39] While not necessary to determine the result I would have found that the evidence of possession against Mr. Saunders, a passenger, was insufficient to prove the case beyond a reasonable doubt. Mr. Saunders was a passenger in a car owned by someone else. None of the Schedule 1 substances were found on Mr. Saunders, or in his close proximity such that constructive possession could be inferred. The baggie thrown to the roadway was discarded while Mr. Saunders was in custody on the other side of the car. There is no evidence that he played any part in that.
Disposition
[40] In light of the forgoing both Messrs. Saunders and Stewart are acquitted of all charges.
[41] This case was well prepared and well-argued by all three lawyers, for which I am thankful.
Released: November 23, 2018
Signed: Justice David Rose