Court Information
Ontario Court of Justice
Date: May 16, 2019
Court File No.: Parry Sound 3011 998 18 180134-00
Parties
Between:
Her Majesty the Queen
— and —
Berthland Dacosta
Before the Court
Justice: A.H. Perron
Heard: January 23, 2019
Reasons for Judgment Released: May 16, 2019
Counsel
For the Federal Crown: J. Piszczek
For the Provincial Crown: W. D. Beatty
For the Defendant Berthland Dacosta: B. E. S. Prichard
Reasons for Judgment
Perron J.:
Charges and Background
[1] Berthland Dacosta proceeded to trial on an information with five charges in relation to an incident that happened on March 7, 2018 on Highway 11 near Trout Creek, ON. He has been charged with Escape Lawful Custody, Obstruct Peace Officer, Assault Peace Officer, Trespass by Night and a charge of Possession of Marijuana pursuant to the Controlled Drugs and Substances Act.
[2] A Charter application alleging a section 9 arbitrary detention violation was filed. Both the Federal and Provincial Crowns and counsel for the accused all agreed to a blended trial on this matter. Defence counsel also advised the Court that the following were not in issue for the purpose of this trial: nature of the substance of the items seized, continuity of the exhibits seized, date of the offence and jurisdiction.
Witnesses
Constable Jody Bond
[3] The first witness called by the prosecution was Constable Jody Bond. He has been a member of the Ontario Provincial Police for the last 18 years and has been assigned for the last two years to general law enforcement duties with the Powassan detachment. On March 7, 2018, he commenced a 12 hour shift at 7 PM and was scheduled to be on duty till 7 AM the following morning. At approximately 9:24 PM, he was monitoring traffic on Highway 11 in the area of Trout Creek Ontario. This part of the Highway consists of a divided highway with two lanes heading south in two lanes heading north.
[4] He had pulled over to the right shoulder of the northbound lanes a motor vehicle for contraventions to the Highway Traffic Act. While dealing with this unrelated matter, he saw another motor vehicle also going northbound pass his location which had failed to move over to the left lane of the north bound section of the highway. The visibility was clear and his fully marked police cruiser with flashing emergency lights on was readily visible. In his view, this motor vehicle had passed dangerously close to his police cruiser.
[5] He therefore quickly terminated his dealings with the original motor vehicle that he had stopped and commence following the second motor vehicle which eventually pulled over at the north end of Trout Creek Ontario. He estimates that he affected this stop probably a minute after the motor vehicle had passed his original location.
[6] The second motor vehicle stopped was a small black Mazda Tribute. Upon approaching the motor vehicle, he noticed that there were two occupants in the motor vehicle, a male driver and a second male in the front passenger seat (the accused now before the Court). He spoke to the driver who properly identified himself with a valid driver's license. He queried the driver's information and confirmed that he was a valid driver. He was however advised by his dispatch that the driver had some flags associated to him and that he was to use caution as he may be associated to crime. This flag originated from the Guns and Gangs unit out of Toronto.
[7] He mentioned that immediately upon speaking to the driver that he could smell unburnt marijuana. He advised that he has done a great number of cases involving marijuana in motor vehicles. He has laid over 300 charges against a variety of individuals with the majority of this being his detection of marijuana in motor vehicles. He explained that marijuana has a distinct smell that he recognized at that time.
[8] He therefore proceeded in charging the driver for failing to move over contrary to section 159 of the Highway Traffic Act. He had also made the decision that based on the odour, his training, and the flag outlined to him by his dispatch that he had the appropriate grounds to believe that both occupants of the motor vehicle had drugs and that he was going to arrest both of them. As he was alone, he therefore asked for some backup.
[9] Sgt. O'Grady and Constable Morandin of the Almaguins Highlands detachment of the OPP attended the scene. Constable Bond advised that he had a brief conversation with these two officers and advised that he was going to deal with the driver and told the two others to arrest the passenger. Constable Bond confirmed that he had very little interaction with the passenger and in fact he could not even identify him if he had to. He simply mentioned to the two other officers that he was to be arrested.
[10] Constable Bond therefore returned to the suspect motor vehicle and escorted the driver to the front of the motor vehicle. He confirmed that the driver was cooperative with him at that time. He could not completely see what was going on concerning the passenger but did conclude that there was some commotion between the passenger and the two other officers. He eventually saw the passenger struggle free from the two other officers and run across the highway. During that time, the driver that he was dealing with clearly advised him that he was not going anywhere.
[11] He eventually requested that the OPP K-9 unit attend the area. After thorough search of the driver and of the motor vehicle, no controlled substances were found. The driver was therefore unconditionally released.
[12] Constable Bond confirmed that when he spoke to the two other assisting officers, he did advise them that he was provided with the flags by dispatch concerning the driver. He also confirms that he had advised them that there was quite a strong odour coming from the motor vehicle. He proceeded in repeating that he has had a number of dealings with controlled substances in motor vehicles and that the majority of these were dealing with marijuana. He advises that same has a very distinct smell and that there is a major difference between unburnt and burnt marijuana. He confirmed that on other occasions, he has located marijuana after smelling same, and in this particular case he had detected a similar odour as soon as he approached the motor vehicle with its windows rolled down.
[13] During cross-examination, Constable Bond was very clear that he did not see anything in the motor vehicle that contributed to his decision to arrest the occupants. The major reason for his grounds was based on the smell of unburnt marijuana. He confirmed that he never made any inquiries with the driver if he was licensed to possess marijuana. He never made any inquiries with the driver about the odour. He also confirmed that there was no flag raised by dispatch concerning the passenger and in fact he did not even know his name. He confirmed that he had no reasons to believe that this flag had anything to do with the passenger, and that in fact the flag was not about drugs or marijuana.
Constable J Morandin
[14] The second witness called by the Crown is Constable J Morandin. He has been with the OPP since February 2018 and was at the time posted at the Almaguin Highlands detachment.
[15] On March 7, 2018, he was working a night shift and was partnered up and sharing a cruiser with Sgt. O'Grady. They received a dispatch at 9:40 PM to assist another officer with a Highway Traffic Act stop in the area of Trout Creek Ontario on Highway 11 North.
[16] When they arrived on scene he was advised that the parties in the motor vehicle were flagged by Gangs and Guns, and that both would be arrested for Possession of Marijuana and the motor vehicle would be searched. It is important to note, that during his testimony he clearly said that there were flagged for Gangs and Guns. He did agree that his notes concerning this incident indicated Guns and Drugs.
[17] He stated that when he approached the motor vehicle it smelled strongly of marijuana. Constable Bond was dealing with the driver and he and Sgt. O'Grady were dealing with the passenger. When they first approached the motor vehicle on the passenger side, the side door was locked. Request was made for the passenger to exit the motor vehicle. He described the passenger as a black male wearing a black sweater and was 20-25 years old. The Constable confirmed that the passenger said no to their request to exit the motor vehicle.
[18] The passenger was advised to unlock the door and was told that he was under arrest. The passenger was not cooperating in unlocking the door. The Constable advised that the driver unlocked the door using the control on the driver's side of the motor vehicle.
[19] Sgt. O'Grady opened the passenger door and told the male to step out. He complied. Sgt. O'Grady then advised the passenger that he was under arrest and asked what his name was. He refused to answer. The Constable confirmed that once the door was open that he noticed an overwhelming smell of fresh cannabis.
[20] He and Sgt O'Grady placed the accused under arrest while trying to determine who he was. He was told to face the motor vehicle and to place his hands on it. It is at that time that the male passenger was seen trying to reach for his right side pocket of his sweater or his pants. He was reminded to keep his hands on the motor vehicle while Sgt. O'Grady started to search him. This is when the Constable noticed a gold grinder on the passenger seat. The male passenger advised that he had no marijuana. The passenger was looking at the Officers over his left shoulder. Sgt. O'Grady eventually found a bag containing what was believed to be marijuana. He continued his search and the passenger became more resistant. Sgt. O'Grady had to hold him down. The passenger was eventually told to put his hands behind his back. When he was attempting to put his right hand behind his back he started to fling his arm. The Constable then saw Sgt. O'Grady push the passenger against the car. The Constable describes that the male passenger pushed back against Sgt. O'Grady and they both fell to the ground. The male passenger then got up and ran across the road.
[21] Both the Constable and the Sgt. began a foot pursuit chasing the male passenger across the northbound lanes of the highway and into the median where he fell in the ditch area. It is at that time that Sgt. O'Grady said that he believed that the male had a gun as he had his hand near his waistband. The Constable describes that he was holding his hand in his belt area while he ran into the bush area. The Constable drew his taser and he saw that Sgt. O'Grady drew his side weapon. The male passenger quickly ran into a wooded area and they lost sight of him as it was very dark. They decided not to pursue the passenger any further.
[22] Calls were therefore made for the Emergency Response Team and the K-9 Unit to attend the area. The Constable advised that the passenger was eventually observed leaving the wooded area. He was arrested and taken into custody 1:13 AM on March 8, 2018. At that time, the male passenger was identified as Berthland Dacosta, the accused now before the Court. The Constable also confirmed that this same male was the passenger of the motor vehicle that he and Sgt. O'Grady were dealing with.
[23] The Constable confirmed that Sgt. O'Grady had advised the male passenger that he was under arrest for possession of the marijuana when he was refusing to open the car door. He did confirm that the Sgt. did find marijuana in a baggie on the accused which was later weighed at 6.4 gr.
[24] On cross-examination, the Constable advised that the grounds to arrest the male passenger where made before he arrived at the scene. He was told that he had to arrest the passenger and therefore he did not need to do his own analysis to obtain reasonable probable grounds. He did also confirmed during cross-examination that the grinder that was seen on the front passenger seat was not observed until after he had exited the motor vehicle. He confirmed that they had advised the passenger that he was under arrest for the possession of the marijuana prior to even seeing the grinder or even opening the door.
[25] He closed his cross-examination by confirming that no handguns were ever located despite a number of officers looking for same. He also confirmed that the altercation on the side of the motor vehicle involving the passenger lasted less than 30 seconds.
Constable O'Grady
[26] The third and final witness called by the Crown was Constable O'Grady. He confirmed that he was on duty on March 7, 2018 and was an acting Sgt. for that shift. He is a 10 year veteran of the OPP and has been posted with the Almaguin Highlands detachment the last three years.
[27] He confirmed that at 9:30 pm he and his partner, Constable Morandin received a radio call to assist Constable Bond who had requested backup. They arrived at the scene in the Trout Creek area at 9:39 pm. He was provided by Constable Bond the reasonable and probable grounds to arrest the passenger for possession of marijuana. The instructions that were provided by Constable Bond was that he and his partner were to arrest the passenger and that Constable Bond was to arrest the driver.
[28] Approximately one minute after his arrival, they approached the motor vehicle on the passenger side. He confirmed that the side door was locked and his partner knocked on the window. The male passenger would not put his window down or unlock the door. He claims that there was a large smell of marijuana. He kept on asking the passenger to unlock the door and asked for his name. The passenger was refusing to comply and he was eventually told to come out of the motor vehicle as he was under arrest.
[29] The passenger eventually got out of the motor vehicle and Constable O'Grady once again asked for his name. The passenger refused to comply. He was directed to place his hands on the motor vehicle as he was going to be searched. This witness confirmed that he located a bag of marijuana on the accused. He also mentioned that he had felt something in his waistband which he thought could possibly be a butt of a pistol.
[30] While trying to arrest the passenger, the Constable confirmed that he was knocked to the ground as it was slippery, wet and snowing. When he was down he told the accused to stop and that he was holding something at his waist band. The male passenger began to run across the highway and fell into the water of the ditch in the median of the Highway. The Constable then drew his service handgun and told the male to stop. The male kept on running and he quickly lost sight of him in the darkness.
[31] He confirmed that the Tactical Unit of the OPP were called and they immediately commenced searching the area. This search took several hours and footprints were eventually located in a nearby driveway. The male passenger eventually walked out to another officer and was taken down at gunpoint and arrested.
[32] He confirmed that he could smell a strong smell of marijuana in a vegetative stage, when he was dealing with the male passenger on the side of the motor vehicle. He advised that Constable Bond had said to them to arrest the passenger due to the strong smell of marijuana. When he finally opened the door to the motor vehicle he was able to notice the smell also.
[33] During cross-examination, this Constable confirmed that he had advised the male passenger that he was under arrest even before the door was open. The Constable is confident that the male passenger could clearly hear them through the closed window. He confirmed that Constable Bond had advised that he had been flagged for Guns and Gangs.
Motion for Directed Verdict
[34] At the conclusion of the Crown's case, defence counsel brought a motion for a directed verdict on some of the counts. This motion was dismissed and a decision was made that a ruling on the Charter Application only be made first. Depending on the outcome, counsels could then make additional submissions on the merits of the case, and as to whether the Crown had proven each and every element of each count beyond a reasonable doubt.
Charter Application
[35] The Charter Application filed on behalf of the accused alleges that the accused rights not to be arbitrarily detained or imprisoned as guaranteed by section 9 of the Canadian Charter of Rights and Freedom was violated and requesting that the admission of the evidence tendered by the Crown, having been obtained in a matter which violated or infringed the applicant's right, would bring the administration of justice into disrepute contrary to section 24(2) of the Charter and therefore same should be excluded.
[36] The wording of Section 9 of the Charter is simple and straight forward. This section states that "Everyone has the right not to be arbitrarily detained or imprisoned". Many leading decisions have defined the terms "arbitrarily" or what is involved with a detention.
[37] Obviously, the police regularly detain or imprison suspects or accused. On most occasions, this is done without judicial authorization. Their power to do same is provided to them by section 495 of the Criminal Code. Basically, a peace officer cannot proceed without first having reasonable and probable grounds that a criminal offence has or will be committed.
[38] The Jurisprudence has established that an arresting officer must have both objective and subjective grounds to arrest an individual for the commission of the criminal offence. When the Court reviews the grounds of arrest, it must conclude that the arresting officer believed objectively that reasonable ground existed, and also that a reasonable person in the position of the arresting officer would have subjectively believed that reasonable and probable grounds existed to justify the arrest. The absence of either objective or subjective grounds renders an arrest unlawful. In forming their grounds for arrest, police must take into account all the relevant information that is available.
[39] Defence counsel concedes that objectively, Constable Bond believed that he had reasonable grounds to arrest both occupants of the motor vehicle. What he is now suggesting is that the Court now needs to review subjectively if this belief was reasonable.
[40] The evidence clearly establishes that Constable O'Grady and Morandin grounds to arrest the accused now before the Court clearly came from Constable Bond. O'Grady and Morandin did not continue the investigation and in fact proceeded in attempting to arrest the accused within a minute or so of arriving at the scene.
[41] Constable Bond's grounds for arrest seemed to be the smell of un-burnt marijuana, the bad driving and the fact that dispatch advised that the driver had been flagged for Guns and Gangs. I disagree with the Crown's submission that the arresting officers had the additional ground that the accused was not complying with their demand, and refusing to open the window and unlock the door. The evidence of both arresting officers was that when they attended the side of the motor vehicle it was to affect an arrest of the passenger. Therefore they already had the reasonable probable grounds prior to any interaction with the passenger. Any interaction with the passenger's refusal to cooperate with the police direction clearly happened after the forming of the reasonable and probable grounds by all officers involved in this matter.
[42] I agree with submissions made by all counsel that this was a valid traffic stop. Therefore the bad driving as witnessed is clearly a grounds to arrest the driver. I fail however to see how the bad driving can become part of the grounds to be used to arrest the passenger in the motor vehicle.
[43] After the driver identified himself to Constable Bond, he made inquiries with the OPP dispatch. That is when he was advised that the driver had been flagged by the Guns and Gangs unit of Toronto. Clearly, this can be part of the grounds to arrest the driver.
[44] Constable Bond was clear in his evidence that he had no interaction with the passenger. He did not know his name and in fact could not even recognize him. Obviously therefore he did not make any inquiries with dispatch concerning the passenger and the flag that he received clearly could not have also applied to the passenger.
[45] It appears therefore that Constable Bond's reasonable and probable grounds to arrest the passenger are based on the smell of marijuana alone.
The Polashek and Gonzales Decisions
[46] All counsel in this matter referred me to the decisions of the Ontario Court of Appeal in R. v. Polashek, [1999] OJ No 968 which is the leading decision on the use of smell of marijuana in formulating grounds for arrest.
[47] Justice Rosenberg mentions at paragraph 13:
"I agree, in part, with the appellant's position. Had Constable Ross based his arrest of the appellant solely on the presence of the odour, I would have held that there were no reasonable and probable grounds to make the arrest. Given Constable Ross' admission that he could not from the odour alone determine whether the marijuana had been smoked recently or even if he was detecting the smell of smoked marijuana, the presence of odour alone did not provide reasonable grounds to believe that the occupant was committing an offence. The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory and thus largely incapable of objective verification. A smell will often leave no trace. As Doherty J.A. observed in R. v. Simpson at p. 202 "subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin or sexual orientation.""
[48] The Crown also pointed out the following comments at paragraph 14:
"On the other hand, I would not go so far as was urged by the appellant that the presence of the smell of marijuana can never provide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was made will determine the matter. It may be that some officers through experience or training can convince the trial judge that they possess sufficient expertise and that their opinion of present possession can be relied upon. Even in this case, the Crown adduced sufficient evidence from which the trial judge could reasonably conclude that Constable Ross accurately detected the odour of marijuana rather than some other substance."
[49] The Crown also directed me to review the decision of the Ontario Court of Appeal in R. v. Gonzales 2017 ONCA 543, [2017] OJ 3437. Justice Watt mentions the following at paragraph 97:
"No bright line rule prohibits the presence of the smell of marijuana as the source of reasonable grounds for an arrest. However, what is dispositive are the circumstances under which the olfactory observation was made. Sometimes, police officers can convince a trial judge that their training and experience is sufficient to yield a reliable opinion of present possession. As with any item of evidence, it is for the trial judge to determine the value and effect of the evidence."
[50] In my view, the facts in the matter at bar are substantially different than the Ontario Court of Appeal decision in Gonzales. The smell of marijuana detected in the motor vehicle in the Gonzalez matter was made by more than one officer. There was also some questioning done concerning a number of boxes in plain sight and the lack of cooperation in answering questions by the driver. Of importance also is the fact that 252 pounds of marijuana was located.
[51] In the case at bar, only Constable Bond detected the smell prior to forming the grounds for arrest, no questioning was done of any of the occupants concerning the smell or anything inside the motor vehicle and only 6 ½ gr of marijuana was found. I do agree with Justice Rosenberg's comments in the Polashek decision that the sense of smell is highly subjective. However, it would be safe to conclude that the smell of 6 ½ gr of marijuana versus 250 pounds of marijuana would be substantially different.
[52] I am also not persuaded that Cst Bond possesses sufficient training and or experience to yield a reliable opinion of possession. No evidence was presented concerning any training that he might have received, and the evidence of his work experience is far from being sufficient to justify extra value be given to his olfactory observation.
[53] After an objective review of the total circumstances of this matter, I conclude that Constable Bond did not have the appropriate reasonable and probable grounds to detain or arrest the accused now before the Court. Under those circumstances, I am satisfied that counsel for the accused has established on the balance of probabilities that his client's section 9 rights were violated and that he was arbitrarily detained.
Section 24(2) Grant Analysis
[54] Pursuant section 24(2) of the Charter, once a breach has been found, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. The burden of proof of this is on the applicant on a balance of probabilities.
[55] R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353, outlines the test for the exclusion of evidence under section 24(2). A court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regards to the following three points:
- The seriousness of the Charter infringing state conduct
- The impact of the breach on the Charter protected interests of the accused
- Society's interests in the adjudication of the case on its merits
Seriousness of the Charter Infringing State Conduct
[56] The first line of inquiry requires the Court to assess whether the admission of the evidence would bring the administration of justice into disrepute, by sending a message to the public that the Courts, as institutions responsible for the administration of justice, effectively condoned state deviation from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. It is clear that any Charter breach is a serious matter. However it is important to consider the breach on a scale of seriousness with blatant disregard to someone's Charter rights as being extremely serious.
[57] By its definition itself, section 9 of the Charter protects a very important and basic right in a free democratic society as Canada is. To arbitrarily detain or imprison someone is by definition removing the liberty and freedom that we all enjoy. To arbitrarily remove someone's liberty and freedom is in my view a serious infringement of a Charter protected right.
Impact of the Breach on the Charter Protected Interests of the Accused
[58] The second stage of inquiry focuses on the seriousness of the impact of the breach on the Charter protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interest protected by the right infringed. In the case at bar, Mr. Dacosta was only detained for a very short period of time while he was being dealt with at the motor vehicle.
[59] The Crown argues that the police acted in good faith, and the impact on the accused was minor as his liberty and freedom had not been taken away until much later when he was arrested after the long manhunt. In my view, Constable O'Grady and Morandin were clearly acting in good faith and were simply following the lead and direction provided to them by Constable Bond. However, the same conclusion cannot be made concerning Constable Bond.
[60] Constable Bond has 18 years' experience with the OPP. He testified that he has had "a great number of cases that have led to charges on over 300 individuals with the majority of those involving the detection of CDSA in motor vehicles". He later clarified that he "had over 300 criminal investigations with quite a majority of these investigations involving marijuana". Interestingly enough, he never did mention how many of these searches led to successful prosecution as a result of a legal search. In any event, a seasoned officer such as Cst Bond who is involved in so many motor vehicle searches involving CDSA, should be aware of the provision as outlined by the Ontario Court of Appeal in the Polashek decision. If he is not aware of this decision, this is even more concerning when we consider the number of motor vehicle searches he has done. In any event, Cst Bond clearly did not follow the well established principles that search based on smell alone are illegal.
[61] Cst Bond was clear in his evidence that he could smell unburnt marijuana. I find it extremely difficult to understand how he could describe the smell as a strong smell, when we are only dealing with 6 ½ gr which was in a sealed bag in a passenger pocket. In any event, he never made any inquiries about the smell. Even in March 2018, an individual who was properly licensed could have in his possession a small amount of marijuana. We are all aware that as of late fall 2018, all adults can now have in their possession small amount of marijuana without a license. With this change in the legal landscape involving simple possession of marijuana, police officers, such as Cst Bond who seem to do searches on a regular basis based solely on the smell of unburnt marijuana, need to change their approach.
[62] Mr. Dacosta's detention led to a very volatile and possibly dangerous situation for everyone involved. I therefore find that Cst Bond had bad faith and I conclude that this violation of the Charter protected right had a serious impact on Mr. Dacosta.
Society's Interest in the Adjudication of the Case on its Merits
[63] The third phase of the test focuses on society's interest in the adjudication of the case on its merits. Will the truth seeking function of the criminal trial process be better served by the admission or the exclusion of the evidence? In my view, it is only on very rare occasion that it is not in society's interests that matters proceed to trial and in fact be adjudicated on its merits.
Conclusion on Section 24(2) Analysis
[64] In conclusion, when I balance all the relevant factors in this matter I am satisfied that the defence has established that any evidence obtained because of the Charter violation should be excluded as given the nature of the violation, the admission of same would bring the administration of justice into disrepute.
Final Judgment
[65] In view of this finding, all counsels are in agreement that there is therefore no evidence left to support any of the charges before the Court and accordingly, there will be a finding of not guilty on all charges now before the Court.
Released: May 16, 2019
Signed: Justice A.H. Perron