Ontario Court of Justice

Citation: R. v. Koop, 2019 ONCJ 136 Date: 2019-03-14

Between:

Her Majesty the Queen

— and —

Terrence Koop

Before: Justice A.T. McKay

Heard on: January 23, 24 and 31, 2019

Reasons for Judgment released on: March 14, 2019

Counsel: Mr. S. Wheildon ................................................................................. counsel for the Crown Mr. A. Bond ..................................................... counsel for the defendant Terrence Koop

RULING ON THE CHARTER APPLICATION

INTRODUCTION:

[1] Mr. Koop pled not guilty to one count of possession of methamphetamine for the purpose of trafficking, one count of breaching his probation order by possessing a controlled substance, and one count of possessing an imitation firearm for a dangerous purpose. The charges arise out of an investigation on December 15, 2017.

[2] The defence alleged violations of sections 8 and 9 of the Charter of Rights related to the events at the roadside. Very briefly summarized, Mr. Koop was a passenger in the rear seat of a car. The car was stopped on Highway 401 by police because it was driving at inconsistent speeds and weaving within its own lane. Subsequently, the driver provided a breath sample into an approved screening device which resulted in a zero blood-alcohol level reading. However, the driver told police that he was a suspended driver under the Highway Traffic Act, and was also on probation. The terms of the probation order included a prohibition from having contact with certain named individuals. While the police investigated the issues related to the driver, the passengers were not free to simply walk away, given that they were on a 400 series Highway.

[3] After approximately 30 minutes, the driver was charged with possession of a prohibited weapon and breach of his probation order for possessing a weapon. Police began the process of impounding the car, given the driver's status as a suspended driver. The passengers were required to exit the car while police completed an inventory search of the car prior to towing. The search of the car resulted in the discovery of a number of items including methamphetamine, a digital scale, packaging materials and a glass pipe. All three occupants of the car were arrested for possession of methamphetamine. Mr. Koop was searched incidental to the arrest and a larger quantity of methamphetamine was discovered in the pocket of his jacket, along with a key which opened a small safe contained in a backpack located in the rear passenger area of the car. An additional amount of methamphetamine and paraphernalia was discovered in the safe.

[4] The defence takes the following position. Mr. Koop was arbitrarily detained at the roadside while the driver was being investigated. His arrest on the charge of possession of methamphetamine was not based upon reasonable grounds and was therefore unlawful. The search incident to that arrest was therefore also unlawful. In addition, the defence takes the position that the way in which police implemented the right to counsel constituted an additional breach and impacted the choices made by Mr. Koop during his interactions with police.

[5] Counsel agreed at the outset that the Charter voir dire and trial would be blended. However, on completion of the evidence, defence counsel indicated that he wanted the court to rule only on the Charter issues before deciding whether additional issues would be litigated.

EVIDENCE

P.C. Jordan Wittig

[6] Constable Wittig has been a member of the OPP for approximately eight years. At the relevant time he was on general patrol duties, although he is now a detective with the Serious Fraud Division. Prior to his involvement in this case, he had been involved in more than 100 drug investigations and was the officer in charge for more than 80 drug cases. The evening of December 14 and into the morning of December 15, 2017, he was working the 5 PM to 5 AM shift, in full uniform in a marked patrol car. The weather was sunny and the roads were dry. He was alone in his police vehicle patrolling Highways 401, 7 and 8. At approximately 1:28 AM he was southbound on Highway 8, using the ramp to enter Highway 401 eastbound. It is a two-lane ramp and traffic was light. In the left lane of the ramp, he saw a black four-door car ahead of him. He was travelling 70 to 80 kilometres per hour and was gaining ground on the car.

[7] As Constable Wittig got closer to the car he realized that it was travelling slower than he expected. It was weaving from left to right within its own lane and its speed was inconsistent, varying between 67 kilometres per hour to 94 kilometres per hour. At that time, there was no shoulder to Highway 401 in that area because of construction. He followed the car approximately one to two kilometres until he reached a point near the exit for Hespeler Road where he could access the shoulder of the highway. He conducted a traffic stop of the car at approximately 1:30 AM in order to check driver sobriety. He activated his emergency lights and tapped his siren. The car pulled over to the right shoulder and stopped. Constable Araujo, who had been following him in a separate police vehicle, also stopped at the scene.

[8] Constable Wittig approached the driver's side of the car, noting that there was a male driving, a female passenger in the front, and the individual later identified as Mr. Koop in the rear passenger seat. After brief conversation he demanded that the driver provide a sample of breath into an approved screening device. The result was a zero blood-alcohol content reading at 1:35 AM. However, during their conversation, the driver indicated that his driver's licence was suspended, and that he was on probation. Because it was winter, he placed the driver in the rear of his police vehicle. Before doing so he asked the driver if he had any weapons and the driver produced a knife which met the definition of a prohibited weapon. At that point, Constable Wittig was of the view that he would probably simply confiscate the knife rather than lay a charge related to it. He thought that he would simply confirm the suspension of the driver's licence and lay a charge regarding that offence.

[9] He conducted computer checks related to the driver. He found two notices of suspension of the driver's licence, along with a probation order which prohibited the possession of weapons and contact with a named individual. He re-attended the car to confirm the identification of the two passengers to see if either of them was the named individual. He asked both passengers for their name and date of birth and a piece of identification. He viewed Mr. Koop's health card. He had already made arrangements over his police radio to have the car impounded and towed from the scene pursuant to section 55.2 of the Highway Traffic Act. As a result of the weapons prohibition in the probation order, he arrested the driver for a weapons charge and a breach of probation. The driver expressed concern because the car belonged to his mother-in-law. He also indicated that he needed certain items from the car; a black case containing a socket set, his hard hat, boots and cell phone. Constable Wittig intended to return to the car in order to retrieve those items and to do an inventory search for valuables.

[10] The tow truck arrived on scene at 2:14 AM. Constable Wittig had the passengers exit the car because they could not remain in it while it was being towed. He had them sit in the tow truck in order for them to keep warm. They were not detained at that point and there was no need for the passengers to remain on scene. However, they could not simply walk away because they were on a 400 series highway and the Highway Traffic Act prohibits pedestrians on such highways. His understanding was that the passengers ultimately intended to call a taxi. He testified that frequently happens during a situation where a vehicle was towed. The intention was to get the passengers off of the 400 series highway by giving them a ride to the police station, where they could call a taxi or another form of ride. He explained all of that to the passengers and they were in agreement.

[11] Constable Wittig began the inventory search of the car. He opened the front passenger door and located a hard case, approximately five inches by eight inches with a skull on top of it, on the floor in front of the passenger seat. He assumed that it was the socket set case, or that it could have contained valuables. He opened the case and discovered two pill bottles containing methamphetamine, a dime bag containing residue, dozens of empty dime bags and a digital scale. The case was contained in a common area of the car where all three individuals could access it. He was still of the view that the driver's ability to operate the car might be impaired by a drug, and was of the view that all passengers would have known about the existence of the methamphetamine. He informed Constable Araujo that he had reasonable grounds to arrest the two passengers. They attended the tow truck and he arrested the female passenger, while Constable Araujo arrested Mr. Koop. After Constable Witting dealt with the female passenger, he returned to his police vehicle and re-arrested the driver for possession of methamphetamine.

[12] Constable Araujo then approached him and indicated that he had searched Mr. Koop incident to arrest and located a significant quantity of methamphetamine in Mr. Koop's jacket pocket. Constable Witting's understanding was that two bags, each approximately one ounce in weight, were located in Mr. Koop's jacket pocket. At 2:24 AM, all three individuals were re-arrested for possession of methamphetamine for the purpose of trafficking. At 2:48 AM the officers arrived at the detachment with the three individuals, who were booked in individually. At 3:09 AM Mr. Koop was lodged in the cell and arrangements were made to contact counsel of choice. There was no answer at that number, so a detailed voicemail message was left at 3:47 AM. At 4:30 AM, Mr. Koop was advised that there was no return call from his counsel of choice and Constable Witting offered access to duty counsel. Mr. Koop declined that opportunity. At 9:36 AM another call was placed to Mr. Koop's counsel of choice, with no response being received to the call.

[13] A detailed search of the car incident to arrest was carried out at the police garage by Constable Araujo. Constable Witting observed a number of items located in the car, including a pouch with the words "Rock Revival" which was seized from the centre console area of the car. It contained three dime bags of methamphetamine containing two grams, two grams and less than one gram respectively. In terms of the items seized from the hard case, there was a dime bag containing one gram of methamphetamine and a pill bottle containing a quantity of methamphetamine, along with the packaging material and a digital scale. He observed a backpack which was seized from the rear seat of the car, which contained a small lock box, or safe. Inside the safe was a bag containing nine grams of methamphetamine, a digital scale, sterile water, a methamphetamine pipe, approximately 75 empty dime bags, a folding knife, six used syringes and a memo book containing what Constable Wittig characterized as a debt list. There was also a BB pistol, a knife which opened by centrifugal force and naloxone nasal spray.

[14] In cross-examination, Constable Wittig agreed that he did not have grounds to arrest the driver for an impaired driving charge. He maintained that he was not attempting to elicit information from the driver and that the driver simply volunteered information about being a suspended driver and being bound by a probation order. He suggested that the driver sit in the back of his cruiser because it was winter. At that point, before the pat-down search was completed, the driver turned over the knife he was carrying. He agreed that he had no knowledge of the relationship between the driver and the two passengers, or the length of time that the three of them were together in the car. He was of the view that he had authority to identify the passengers in order to investigate any potential breach of probation by the driver. He confirmed that he asked the passengers to produce identification, but could not recall if he explained why they needed to produce information. He agreed that whenever he interacts with individuals in that type of scenario, he would normally run the names of the individuals on CPIC for safety reasons. He had no recollection of searching Mr. Koop's name in the CPIC database while at the roadside.

[15] Constable Wittig agreed that the passengers were not free to simply walk away from the scene. If they had attempted to do so, he was of the view he would have had the ability to detain them for safety reasons pursuant to the Highway Traffic Act offence of being a pedestrian on a 400 series highway. He testified that he told the passengers to take their personal property out of the car when the tow truck arrived. He agreed that the hard case was in a position on the front floor of the passenger's seat, so it was possible that Mr. Koop's view of that item in the back seat could have been obstructed. However, he was of the view that Mr. Koop would have been able to see the hard case. He inferred that all three parties knew each other and that all were aware of the methamphetamine located in the common area of the car. He was of the view that gave him grounds to arrest all three on a possession charge, and then to continue to gather additional information regarding the offence.

[16] In re-examination he confirmed he told Mr. Koop that he could take his personal items to the tow truck because the car was being impounded. He did not observe Mr. Koop take anything with him. He told both passengers that they could call either a friend or a cab in order to obtain a ride, but that they needed to get off of the highway first. They indicated to him that they were content with that.

Constable Kenneth Araujo

[17] Constable Araujo has been a member of the OPP for more than 11 years. On December 14 and 15, 2017 he was working the night shift from 6 PM to 6 AM in full uniform in a marked car. He was conducting a RIDE program with a number of other officers, including Constable Wittig. They completed that and at 1:28 AM he left the scene following the vehicle operated by Constable Wittig. He travelled eastbound on Highway 8 onto the ramp which merges onto Highway 401. He noticed Constable Wittig following a black Honda car. The Honda was swerving within its lane and travelling slowly. The vehicle stop was made by Constable Wittig, who began speaking with the driver. Constable Araujo stood by outside of the passenger side of the car for officer safety reasons. Mr. Koop was seated in the back seat using a cell phone. Constable Araujo walked back and forth between the car and both police cars and observed Constable Wittig administer the approved screening device to the driver. He overheard the driver indicate that his licence was suspended and he was subject to a probation order.

[18] Constable Araujo observed a knife which had been located on the driver. He reviewed the driving suspensions and probation order of the driver on his computer terminal. He could not recall any conversation of substance which he had with the passengers, nor had he given any directions to the passengers during that length of time. Constable Wittig informed him that the car would be towed and impounded. The tow truck arrived on scene and Constable Araujo had the passengers exit the car and sit in the tow truck. He did so for safety reasons because they were on Highway 401, and also because it was cold outside. He and Constable Wittig indicated to the passengers that they should sit in the tow truck to stay warm and that arrangements would be made to get them off of the highway. It was illegal for them to remain in the car while it was being towed. He also was aware of the driver of the car asking Constable Wittig to retrieve certain items from the car before it was towed. He was unaware of whether the passengers were told that they could retrieve personal belongings from the car. The passengers were not detained, so they were not searched nor were they provided with a caution or the right to counsel. His understanding was that the passengers would ride with the tow truck driver.

[19] At this point the driver of the car was still in the back of Constable Wittig's cruiser. Constable Wittig went to conduct an inventory search of the car. Constable Witting then returned to his location and told him that he had located drugs and paraphernalia in a box. He showed him the box and its contents. At 2:18 AM they arrested the driver and passengers for possession of methamphetamine. He performed the arrest of Mr. Koop, and after handcuffing, carried out a frisk search for weapons, evidence or means of escape. He noted a fairly large bulge on the left side of Mr. Koop's jacket. He reached into the jacket pocket and discovered two bags of methamphetamine inside the inner coat pocket.

[20] He advised Constable Wittig of the discovery. Constable Wittig re-arrested Mr. Koop for possession of methamphetamine for the purpose of trafficking. While searching Mr. Koop, he had also discovered a key ring containing a number of keys, one of which unlocked the safe which was later discovered inside the backpack located inside the car. Constable Araujo then took over dealing with the female passenger, while Constable Wittig dealt with Mr. Koop. In searching the female passenger's purse, he located another small quantity of methamphetamine.

[21] At 2:45 AM, they left the scene. He followed the tow truck to the detachment in order to maintain continuity over the towed car. At 3:25 AM, he moved the car into the police garage to complete a search of the car incident to arrest. Included in the items which he located in the car was a backpack on the floor of the rear passenger area. Located in the backpack was a prescription pill bottle with Mr. Koop's name on it, a second empty pill bottle, a BB pistol, and a small safe or lockbox which was opened by a key located in Mr. Koop's pocket. Inside the lockbox was 9 grams of methamphetamine, a digital scale, a glass pipe, approximately 75 empty dime bags, unused needles, a flick knife and a small notebook containing what he characterized as a debt list.

[22] In cross-examination, he confirmed that initially there was no reason to detain the passengers. However, the passengers were not free to simply walk away because of the provisions of the Highway Traffic Act which prohibited pedestrians on 400 series highways. He never considered informing the passengers of their right to counsel because he thought that they were finished their interactions with the passengers after the passengers had identified themselves. He could not state what would have happened if the passengers had refused to identify themselves, because he was not the investigating officer. If he had been the investigating officer and they had refused to identify themselves, he would have determined what steps to take from there, including potentially looking at photos in the police data base. However, he would have let the passengers go on their way after they were safely off the Highway. He was of the view that a person in the situation of the passengers was not necessarily required to provide identification. He did not specifically recall telling the passengers that they were free to call a taxi. He was essentially on scene to support Constable Wittig for reasons of officer safety.

[23] He also confirmed that he made no observations of people moving anything in the car. However, he was not watching the passengers at all times. It was a cold night and at times he went back to his cruiser to warm up. He could not recall whether he ran the names of the passengers on his police computer terminal, or whether he called their names into police dispatch. He agreed that at times, he has run the names of passengers through CPIC, possibly in situations where they were not suspected of committing offences. He also confirmed that the location of the case on the floor in front of the passenger seat was an area that everyone in the car could access. In his view, that justified the arrest of all three individuals on the original possession of methamphetamine charges. In re-examination, he confirmed that he was not looking for anything originally, he was simply standing by for officer safety reasons.

POSITIONS OF THE PARTIES

The Defence

[24] The defence takes the position that Mr. Koop was detained when the car that he was a passenger in was originally stopped. The car was stopped by police using lights and sirens. The driver was detained and the two police officers took control over the scene, including the passengers. The passengers were not free to leave the scene because of the provisions of the Highway Traffic Act, nor were they given any information regarding their status until they were told that the car was being impounded. At that point they were told that they had to remain in the tow truck until it arrived at the police station, at which point they could arrange a ride to the location of their choice. The defence submits that any reasonable person in that situation would believe that they had no choice but to follow the direction of the police, and accordingly that they were detained.

[25] Alternatively, the position is that if Mr. Koop was not detained when the car was initially stopped, he was detained when police asked him for identification, thereby forcing him to assist Constable Witting in a Criminal Code investigation into whether the driver was in breach of his probation order, an investigation that the defence submits was based on pure speculation. The defence submits that detention was arbitrary. The request for identification was the equivalent of a seizure without the existence of lawful grounds. He was not provided with the right to counsel when initially detained and that deprived him of the legal context of his situation, including issues of whether he had to remain at the scene and co-operate with the police.

[26] In addition, the defence takes the position that the arrest of Mr. Koop for simple possession was an arrest without grounds and therefore unlawful. Accordingly, the defence position is that any search incident to that arrest was unlawful.

[27] The defence also submits that the court should consider what the defence considers a blatant disregard for Charter values on the part of the police from the outset, which included a vehicle stop based upon mildly questionable driving over a short distance in a construction zone, an ASD demand made of the driver without a legal basis, and unacceptable rationale for an inventory search of the car and the case found on the floor in the front passenger area.

The Crown

[28] The Crown characterizes the initial police involvement as follows. The police had the legal basis to stop the car and check the status of the driver. The test for an ASD demand, reasonable suspicion, is a low threshold, a threshold which was met in this situation. When police became aware that they were dealing with a suspended driver, section 55 of the Highway Traffic Act required that the car be impounded. In addition, at that point, the police were aware that the driver was on probation with a term not to possess any weapons, and he was in possession of a prohibited weapon. The situation continued to evolve. It was not a targeted investigation. The impounding of the car led to the necessity of the inventory search. In any event, Mr. Koop does not have standing to challenge the actions of the police up to that point.

[29] To the point when Mr. Koop was arrested for simple possession of the methamphetamine found in the case in the common area of the car, he was not subjected to physical restraint nor given directions which equaled physical restraint. He was the passenger in a car which was stopped for a lawful purpose. The investigation of the driver shifted from an HTA investigation to a Criminal Code investigation. Mr. Koop did not testify so there is no evidence with respect to psychological restraint. Not all interactions with the police constitute detention. Any questioning of Mr. Koop related to a potential offence committed by the driver of the car, with no suggestion that the police had an alternative motive with respect to Mr. Koop. The Crown's position is that Mr. Koop was not detained until he was arrested for possession of methamphetamine.

[30] The Crown's position is that the initial arrest of Mr. Koop was based upon reasonable grounds. It arose from a dynamic scenario which evolved at the roadside. The inventory search of the car was justified in law. The box which was located on the floor in the front passenger area was in a common area of the car. The police officer drew an inference that people who travel together in the early morning hours probably know each other. He concluded that, given the box was in a common area of the car accessible by all of its occupants, he had grounds to make the arrest. The Crown submits that those grounds were reasonable in law. The Crown's position is that given the legality of the arrest, the search of Mr. Koop as an incident to that arrest was lawful.

[31] The Crown also submits that if the court was to find that the arrest for simple possession and the resulting search and discovery of the two ounces of methamphetamine in Mr. Koop's jacket pocket was a breach of his Charter rights, the court should find that the evidence was otherwise discoverable. The inventory search of the car was justified in law. It would have led to a search of the backpack, which would have led to the discovery of the safe. The contents of the safe, specifically more methamphetamine, a BB gun, a prescription bottle with Mr. Koop's name on it, packaging materials and a digital scale, would have inevitably led to Mr. Koop's arrest on possession for the purpose of trafficking charges, and a search of his jacket pocket incidental to that arrest.

APPLICABLE LEGAL PRINCIPLES

Detention

[32] Detention by state authorities represents a limit on the right to liberty enjoyed by everyone in Canada. That liberty can only be curtailed in accordance with principles of fundamental justice. A person is detained when his or her freedom of movement is restrained physically by the police. Psychological restraint may also constitute detention where a person who complies with a police direction or command reasonably believes that they have no choice. A person is detained when a police officer assumes control over that person's movement by demand or direction which may have significant legal consequences. Detention can cover a broad range of encounters between police officers and members of the public. However, every interaction between a member of the public and the police will not constitute detention within the meaning of our jurisprudence unless the interaction involves significant physical or psychological restraint. The determination of whether an individual is detained is a fact specific inquiry in each case.

[33] The Supreme Court of Canada summarized the issue of detention as follows at paragraph 44 of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353:

"In summary, we conclude as follows:

1. 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.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether [page 385] a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication".

[34] In R. v. Franck, 2012 ONSC 6274, Code J. dealt with the issue of police asking for an individual for identification. That case was in the context of the individual being a suspect. At paragraph 47, Code J. stated the following:

"It is well-established that merely asking a suspect for identification does not give rise to a detention. This was the only investigative question the police asked Franck. They did not question him about any suspected criminal activity and so there was no 'focused interrogation amounting to detention'. Franck testified that he was not concerned about giving his name to the police. This part of the interaction between Constable Gill and Franck could not possibly form the basis for a finding of 'detention'."

The Inventory Search

[35] The Ontario Court of Appeal has made it clear that where a vehicle is subject to statutory authority to impound it, inventory searches by police are justified in order to safeguard the vehicle's contents. The power of police includes the power to search and itemize the contents of objects found in vehicles such as purses, wallets and bags in order to determine their contents. Such searches must be executed in a reasonable manner given the totality of circumstances of the case. (See R. v. Nicolosi, 1998 2006 (ON CA); R. v. Wint, 2009 ONCA 52; and R. v. Ellis, ONCA 598.).

Reasonable Grounds

[36] The issue of whether reasonable grounds exist involves both an objective and a subjective component. The police officer must subjectively have an honest belief that the suspect has committed an offence, and objectively reasonable grounds for the police officer's belief must exist at the time that the belief is formed. The test is not an overly onerous one. A prima facie case need not be established. Appellate courts have cautioned that the test must not be inflated to the context of testing trial evidence. Reasonable grounds are credibly based probability. The subjective component amounts to an honest belief. The objective component then requires that the police officer's opinion was supported by objective facts. It requires more than suspicion but less than a balance of probabilities. A roadside investigation demands a quick and informed decision without the luxury of reflection. The decision is made based on available information which is often less than exact or complete. The belief, based on perceived facts, is frequently a compilation of a state of facts that are too subtle and too complicated to be narrated separately and distinctly.

ANALYSIS

[37] Mr. Koop was a passenger in a car stopped by police to investigate the status of the driver. The driver provided a sample of his breath into a screening device which resulted in a zero blood-alcohol content reading. However, the driver indicated to police that his driver's licence was under suspension and he was subject to terms of probation. That led to further investigation by the police and the impounding of the car. While police were carrying out their investigation of the driver, Mr. Koop was required to wait. Initially he and a second passenger waited in the car. When the tow truck arrived, they were told by police to wait in the tow truck. They were advised that they would need to be driven off the highway for safety reasons. Once the tow truck arrived at the police station, they would be free to make arrangements for a ride to whatever location they wanted.

[38] During Constable Wittig's initial interactions with the driver, Constable Araujo remained on scene for officer safety reasons. He testified that because it was a cold evening, he alternated between standing by the passenger side of the car, and returning to his cruiser. There were times when he was not watching the passengers. That is an example of the evidence which illustrates the officers' initial attitude towards both passengers. I find that initially, the officers did not regard the passengers as suspects or individuals who were subject to an investigation. The focus was completely upon investigating the driver and getting the passengers safely off the side of a 400 series highway so that they could go on their way. As such, the police were providing the passengers with general assistance, and maintaining general order. With respect to the passengers, the police were certainly not involved in a focused investigation. The passengers were not under any legal obligation at that point, other than, for their own safety, to comply with the terms of the Highway Traffic Act and not attempt to become pedestrians on a 400 series highway. At this point, the passengers were not the subject of an investigation, nor were they subjected to controls which might have significant legal consequences.

[39] I find that Mr. Koop was not detained until he was arrested for possession of methamphetamine as a result of the discovery of the items in the case on the floor of the front passenger seat.

[40] Counsel referred the court to the decision of the Ontario Court of Appeal in R. v. Harris, 2007 ONCA 574. In that decision, the court held that a police officer has the power to detain the occupants of a car during a Highway Traffic Act investigation. The court also held that the detention of the passenger in that case did not become arbitrary when a police officer asked for identification for purposes that had nothing to do with the Highway Traffic Act investigation. However, the court did find that the request for the passenger to identify himself was improper and amounted to a seizure. The passenger did identify himself, which led to a CPIC inquiry, which revealed the passenger to be in breach of a term of his bail. That led to the passenger's arrest, a search incidental to that arrest, and the discovery of a significant amount of cocaine.

[41] In finding the question regarding identity to be a seizure, the court indicated that a person under police detention who was being asked to incriminate himself has more than a reasonable expectation of privacy. Indeed, the person has a right to silence. The court held that the purpose of the vehicle stop did not justify an at-large inquiry into the passenger's background or his status in the criminal justice system. The request for identification did have that effect. However, obtaining the identity of the passenger did not alter the nature of the detention of the passenger, or render it arbitrary.

[42] In this case, the request for Mr. Koop to identify himself was not related to an attempt by the police to incriminate Mr. Koop, nor did it culminate in any police action against Mr. Koop. The request related to a police investigation as to whether the driver was breaching the terms of his probation order. That portion of the investigation of the driver ended when Mr. Koop identified himself and was not an individual that the driver was prohibited from communicating with. Accordingly, the case is distinguishable on its facts from the decision in R. v. Harris, supra. In these circumstances, I do not find that asking Mr. Koop to identify himself constituted a seizure.

[43] I find that Constable Wittig had authority under the Highway Traffic Act to impound the car. Accordingly, he had authority to conduct an inventory search of the car in order to determine its contents prior to it being towed. He was acting reasonably pursuant to those powers when he discovered the case on the floor in the front passenger seat area of the car. He was entitled to open the case to determine its contents and when he did so, he discovered methamphetamine. The issue then became whether the discovery of the methamphetamine in those circumstances constituted reasonable grounds to arrest all three occupants of the car for possession of it.

[44] Possession involves an element of knowledge and control. The case containing the methamphetamine was in an area of the car which could be accessed by all three individuals in the car simply by reaching for it. It is unknown at what point the case was placed in the location where was found by Constable Wittig. Given that there were periods of time when Constable Araujo was not watching the passengers, it is possible that it could have been placed there after the car was stopped by police. In all of the circumstances, including the time of day and the fact that the three individuals were travelling on a highway in a small sedan, I find that Constable Wittig subjectively believed that all three individuals in the car were in possession of the contents of the case. I find that, given the totality of circumstances, there was an objective basis for his belief. Therefore, the evidence establishes reasonable grounds for the arrest of all three individuals for possession of methamphetamine.

[45] Given the fact that reasonable grounds existed, the search incident to Mr. Koop's arrest was lawful and was carried out reasonably. Therefore, there was no breach of his rights with respect to the discovery of the methamphetamine in his coat pocket, or the contents of the backpack which contained the safe. I find that the evidence does not establish a breach of Mr. Koop's right to counsel.

[46] I find that there was no breach of Mr. Koop's rights under the Charter. If I am wrong and the obtaining Mr. Koop's name constituted a seizure, I am of the view that it would not lead to the exclusion of any evidence in this case. The question was asked in order to investigate the driver. Obtaining the name simply led the police to conclude that the driver was not in violation of the relevant term of his probation order. It had no consequence with respect to how the events unfolded for Mr. Koop, and no impact on any of his Charter protected interests.

[47] If I am wrong with respect to my conclusion that the police had reasonable grounds to make the original arrest of Mr. Koop for possession of methamphetamine, I would not exclude the evidence which was obtained after that arrest. I am of the view that the evidence would have been otherwise discoverable given the fact that the police still would have been authorized to conduct an inventory search of the contents of the car. That inventory search would have discovered the backpack. The methamphetamine, digital scale, packaging materials, prescription bottle belonging to Mr. Koop, notebook and other items discovered in that backpack would have justified the arrest of Mr. Koop for possession of methamphetamine for the purpose of trafficking. Following that arrest, the police would have authority to conduct a search incident to the arrest and would have discovered the two ounces of methamphetamine in Mr. Koop's jacket pocket.

CONCLUSIONS

[48] The evidence located both in the car and Mr. Koop's jacket was lawfully obtained and is therefore admissible.

Released: March 14, 2019

Signed: Justice A. T. McKay