Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: April 26, 2021 COURT FILE No.: 200203, 103040
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
HAL CLAYTON
Before: Justice Robert S. Gee
Heard on: January 5, 6 and March 3, 2021 Ruling on Accused’s Charter Application released on: April 26, 2021
Counsel: Kevin McGilly....................................................................... counsel for the Federal Crown Dean D. Paquette............................................................................ counsel for the Accused
Gee J.:
Introduction
[1] On September 17, 2019, the accused Hal Clayton, was the subject of a traffic stop by Officer Michael Logozny of the OPP on Highway 403 in the City of Brantford. He was arrested for driving with a suspended licence. The motor vehicle he was driving was searched and a quantity of controlled substances was located. As a result, Mr. Clayton is facing four charges; possession for the purposes of trafficking fentanyl, possession of cocaine, possession of a methamphetamine and fentanyl mixture, and possession of property obtained by crime under $5000.00 being Canadian currency.
[2] Mr. Clayton has brought an Application in which he alleges the search of the motor vehicle was unlawful and violated his s. 8 Charter Right and as well, that during the course of his interaction with Police his s. 10(b) right to counsel was also violated. As a remedy, for these violations, he seeks the exclusion of the controlled substances and any other evidence located as a result of the search.
[3] The evidence on this Application and the trial evidence for the Crown was heard in a blended fashion. Mr. Clayton did not testify on the Application but reserved his right to testify and call evidence on the trial, pending the ruling on this Application. That will likely be unnecessary as I agree that Mr. Clayton’s s. 8 and 10(b) Charter Rights were violated and also agree that the appropriate remedy is the exclusion of any evidence found as a result of the search of the motor vehicle pursuant to s. 24(2) of the Charter.
[4] The balance of theses reasons will explain why I came to this conclusion.
Facts
[5] At the time of trial, Officer Logozny had been a police officer for just under 4.5 years. That would mean at the time of this incident he had just over 3 years experience as a police officer. On September 17, 2019 he was working a day shift doing general patrol. Shortly before 11:20 am, he entered the eastbound lanes of Highway 403 at Rest Acres Road which is just west of the City of Brantford.
[6] He was in what he described as the passing lane, travelling at approximately 100 kmh when he encountered Mr. Clayton’s vehicle in what he called the travelling lane. As he was passing him, Mr. Clayton slowed down which Officer Logozny found suspicious. As a result, Officer Logozny said he queried the plate of Mr. Clayton’s vehicle and determined the validation tag to have expired in February 2019. Officer Logozny upon learning of this slowed down to get behind Mr. Clayton and when he was able to, he conducted a traffic stop. Mr. Clayton came to a stop just east of Paris Road, in the City of Brantford.
[7] Officer Logozny stated he approached the vehicle and advised Mr. Clayton he had stopped him for the expired validation tag. He asked him for his driver’s licence, ownership, and insurance documents. Mr. Clayton provided the ownership and insurance. The car Mr. Clayton was driving was not his. It was owned by a Halid Sefic, from Burlington, Ontario.
[8] Mr. Clayton was not able to produce a driver’s licence. According to Officer Logozny, Mr. Clayton explained he had played hockey in the United States and had a Texas licence but he had not lived in Canada for some time and he was unsure where his licence was.
[9] Mr. Clayton provided an Ontario photo identification card with his name and a date of birth. Officer Logozny returned to his cruiser and ran several searches all of which returned no results. He then searched Mr. Clayton’s name in NICHE record managements system and found a different date of birth for Mr. Clayton. When he searched the Ministry of Transportation with this date of birth, it showed Mr. Clayton’s licence had been suspended since November 9, 1992.
[10] After confirming the licence suspension was accurate, Officer Logozny returned to Mr. Clayton’s vehicle and asked him if the correct date of birth was the one he found on his second search and not the one on the Photo ID card. When Mr. Clayton confirmed that was his correct birth date, Officer Logozny arrested him for driving under suspension.
[11] Mr. Clayton was removed from his vehicle, handcuffed behind his back and taken to the cruiser where he was searched. No driver’s licence or anything of evidentiary value was found during this search.
[12] After this, Officer Logozny stated he placed Mr. Clayton in the rear of his cruiser and immediately returned to the vehicle Mr. Clayton was driving to search it. The purpose of the search, according to Officer Logozny, was to attempt to locate Mr. Clayton’s driver’s licence. He entered the driver’s side and searched first in the centre console. There he located Mr. Clayton’s wallet which contained a large quantity cash, his health card but no licence. As such, he continued to search. On the front passenger seat Officer Logozny found a black backpack. He started to search it too, again ostensibly for Mr. Clayton’s driver’s licence. Again, no licence was found but, Officer Logozny did locate three containers inside the backpack. Two were large bottles with screw on tops. One was sealed with plastic sealing the other was not. The two large containers were labeled Oxycocet. They were also marked for “Hospital Use Only” and indicated they each contained 1000 tablets, with each tablet made up of 5 milligrams of oxycodone and 325 milligrams of acetaminophen.
[13] Officer Logozny opened and looked in the container without the seal and saw a large quantity of tablets which he thought was consistent with the labeling. The smaller container had a backward “L” on it but did not have a similar label. Also found in the backpack was a further large quantity of cash.
[14] After discovering the contents of the backpack. Officer Logozny placed a cell phone call to Detective Constable Adach who was a member of the Community Street Crime Unit. Officer Logozny indicated he called him as he had more experience in drug investigations and wanted to advise him of what he found.
[15] Upon completing this call, Officer Logozny returned to the cruiser and re-arrested Mr. Clayton for possession for the purpose of trafficking in oxycodone. He advised him of his rights to counsel and cautioned him. In response to his rights to counsel, Officer Logozny indicated Mr. Clayton said he understood them and wanted to speak to a lawyer.
[16] After this, Officer Logozny returned to the vehicle and continued the search. He again looked through the backpack and this time located two glass pipes. Next Officer Logozny searched the glovebox where he located a glass vial. At this point all the items found; the three containers with tablets, the cash, the pipes, and the vial were seized by Officer Logozny.
[17] At about this time Detective Constable Adach and his partner, Detective McMurtrie arrived on scene. Constable Gretzky arrived separately as well. Officer Logozny showed Detective Constable Adach and Detective McMurtrie, who were in plain clothes that day, what he found. Just after this, Detective McMurtrie attended the cruiser where Mr. Clayton was detained and proceeded to question him for approximately 10 minutes.
[18] At no time before Detective McMurtrie commenced his questioning of Mr. Clayton, did Officer Logozny advise him that Mr. Clayton had requested to speak with counsel, even though he stated he knew police were obligated to hold off questioning a detainee until access to counsel could be provided in circumstances such as this.
[19] To his credit, Detective McMurtrie clearly and abjectly acknowledged his error in questioning Mr. Clayton as he did in this case. His testimony was that he arrived on scene with Detective Constable Adach and spoke to Officer Logozny about what he found. Detective McMurtrie testified he recalls asking Officer Logozny if he gave Mr. Clayton his right to counsel but does not recall what if anything Officer Logozny may have advised Mr. Clayton said in response. In any event, he decided he would commence questioning of Mr. Clayton about what he was doing in Brantford with that quantity of drugs. Prior to questioning Mr. Clayton, he did not separately advise him of his right to counsel or caution him again.
[20] Detective McMurtrie as well stated he was aware at the time police are required to hold off questioning a detainee who has requested to speak to counsel until they are provided an opportunity to do so, and he knew Mr. Clayton would not have had that opportunity.
[21] Detective McMurtrie candidly admitted he did not observe basic constitutional requirements here. As a police officer of some nine years at the time, he admitted he knew better and should not have questioned Mr. Clayton as he did. Haste, oversight, irresponsible, neglectful were some of the ways Detective McMurtrie described his actions that day. This was a big drug seizure, the biggest he had been involved in of this kind and he said his actions that day were as a result of the excitement that came from being involved in something so big. He also acknowledged though he didn’t even realize his mistake until being cross examined or at best the night before when he reviewed his notes.
[22] He admitted his purpose was to advance the investigation and in doing so, the police gathered a significant quantity of information and intelligence they would not otherwise have obtained, had he held off questioning Mr. Clayton until he spoke with counsel.
[23] The initial stop of Mr. Clayton happened around 11:20 am. By the time Officer Logozny left the scene with Mr. Clayton for the station it was 12:38 pm and they arrived at the station at 12:56 pm. During the booking process, Mr. Clayton was asked again if he wished to speak to counsel and this time, he said he didn’t. Officer Logozny told him if he changed his mind, they would facilitate a call for him.
[24] After this, Officer Logozny did a more thorough search of the backpack at the station. Inside he found a plastic Tupperware like container with a purple lid that contained what appeared to be purple fentanyl. As well, he located a further plastic bag that contained a white coloured rock like substance. One further plastic container, this one with a pink lid was located. This container held a white powdery substance.
[25] As a result of these findings, Officer Logozny re-attended the cell area where Mr. Clayton was lodged and re-arrested him, this time for possession of fentanyl. He again advised him of his right to counsel and Mr. Clayton again declined. However approximately 10 mins later, Mr. Clayton indicated to Officer Logozny that he now wished to speak to a lawyer. A call was placed to duty counsel at approximately 2:43 pm. Duty counsel though did not return the call promptly so a further call was made to them and they finally called and spoke to Mr. Clayton at 4:27 pm.
[26] The tablets that were initially located by Officer Logozny and suspected at the time to be oxycodone, were sent for analysis. It turns out they were not oxycodone but were fentanyl. Mr. Clayton was as a result charged with possession for the purpose of trafficking in fentanyl as opposed to oxycodone as initially charged.
[27] In total, there was approximately 1.5 kilograms of fentanyl seized.
Issues
[28] The Crown position is that Officer Logozny’s search of the vehicle was a lawful search incident to the arrest of Mr. Clayton for driving while suspended. Officer Logozny claimed to be searching the vehicle for evidence to support the drive suspended charge, namely Mr. Clayton’s driver’s licence.
[29] The defence claims this was a pretext search. The search was not as Officer Logozny claimed, for the driver’s licence. Officer Logozny saw an opportunity to search the vehicle simply to see what he could find and now claims after the fact that it was a search incident to arrest.
[30] The first issue I must decide is what was Officer Logozny’s real motivation for the search. Was it as he claims, a search incident to arrest for Mr. Clayton’s driver’s licence, or was it simply an opportunistic search, a pretext to go through the vehicle to see what he could find. After an assessment of all the evidence, including the testimony of Officer Logozny, I find it was the latter.
[31] The second issue relates to Mr. Clayton’s right to counsel. In this regard there are two violations alleged by the defence that are both conceded by the Crown. The first is more minor than the second. The first flows from the fact that Mr. Clayton was stopped by Officer Logozny at 11:20 am. He was arrested, initially for drive suspended, handcuffed and placed in the back of the cruiser at 11:38 am. However, it wasn’t until 11:51 am when he was rearrested after the discovery of the drugs that he was advised of his rights to counsel for the first time. The defence characterizes this as a 31 minute delay in advising Mr. Clayton of his rights to counsel, while the Crown characterizes it as a 13 minute delay. The second, more significant violation of s. 10(b) arose as a result of Detective McMurtrie’s questioning Mr. Clayton for 10 minutes while he was detained in the cruiser after he had requested to speak to counsel but had not yet been provided the opportunity to do so.
[32] The third issue I must decide is what remedy, if any to grant as a result of these violations. The defence argues admission of the items found during the search of the vehicle would bring the administration of justice into disrepute, so an exclusion of all items found is sought. The Crown argues the administration of justice will not be brought into disrepute if the evidence is admitted so no remedy should be granted.
Legal Principles
[33] The search of the vehicle by Officer Logozny was warrantless. As such the Crown has the burden of proving it was authorized by law. The legal authority relied on here derives from the common law power granted police to search incident to arrest.
[34] The scope of the police power to search incidental to arrest has been reviewed by the Supreme Court in several cases. In the case of R. v. Fearon, 2014 SCC 77, [2014] 3 SCR 621, Justice Cromwell described the power as follows at par. 16:
Although the common law power to search incident to arrest is deeply rooted in our law, it is an extraordinary power in two respects. The power to search incident to arrest not only permits searches without a warrant, but does so in circumstances in which the grounds to obtain a warrant do not exist. The cases teach us that the power to search incident to arrest is a focussed power given to the police so that they can pursue their investigations promptly upon making an arrest. The power must be exercised in the pursuit of a valid purpose related to the proper administration of justice. The central guiding principle is that the search must be, as the case law puts it, truly incidental to the arrest.
[35] This passage tells me I must not lose sight of what Mr. Clayton was under arrest for, that being driving while suspended, a Highway Traffic Act infraction. I must ask if the search conducted by Officer Logozny was truly incidental to that arrest or was he searching the vehicle for some other unrelated purpose.
[36] In determining if the search was truly incidental to the arrest, there are three main purposes that can be relied upon when conducting a search incidental to arrest. These three purposes were discussed by Chief Justice Lamer in R. v. Caslake, [1998] 1 SCR 51 while referencing Justice L’Heureux-Dube’s reasoning in Cloutier v. Langois, [1990] 1 S.C.R. 58 as follows at par. 19:
As L’Heureux-Dubé J. stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee’s trial. The restriction that the search must be “truly incidental” to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer’s belief that this purpose will be served by the search must be a reasonable one.
[37] Similarly, Justice Doherty emphasized that the justification for the search must be assessed on what the officer was actually thinking at the time, this is how he explained it in par 28 of R. v. Santana, 2020 ONCA 265:
The scope of the power to search as an incident to an arrest is fact-specific: R. v. Fearon, at para. 13. Valid police purposes associated with searches incidental to arrest include police safety, public safety, securing evidence, and discovering evidence. Two points should be stressed. First, the purpose relied on to justify the search at trial must have been the actual reason the police conducted the search. After-the-fact justifications that did not actually cause the police to conduct the search or seizure will not do. Second, the police purpose must be related to the specific reason for the arrest. Here, the appellant was arrested because there was a province-wide warrant for his arrest for driving while under suspension. Any search said to be justified as a search for evidence had to be evidence in respect of his arrest on the outstanding warrant, and not evidence connecting him to other possible offences such as drug trafficking: see Caslake, at paras. 22-25.
[38] In this case there was no concern for officer safety or the destruction of any evidence relating to the drive suspended charge. Mr. Clayton was the only one in the vehicle when it was pulled over. By the time the search was conducted he was handcuffed and secured in the rear of Officer Logozny’s cruiser.
[39] The sole reason to justify the search given by Officer Logozny was to locate evidence, that being Mr. Clayton’s driver’s licence. Given these legal parameters, I must decide if I believe Officer Logozny when he said this was his purpose for the search.
[40] The physical copy of Mr. Clayton’s driver’s licence is not needed as evidence against him in relation to the drive suspended charge. The defence argued it would not provide evidence of anything related to whether Mr. Clayton was driving while suspended and does not in any way assist in determining if Mr. Clayton was subject to a valid suspension.
[41] In argument the Crown conceded this point, that the licence itself would have no evidentiary value at the trial for drive suspended. However, the Crown argued Officer Logozny testified he thought the licence was required as evidence on the charge so I should approach the issue based on what Officer Logozny subjectively thought was required.
[42] I still must decide if I believe Officer Logozny when he says that was the reason for the search. If I do not believe him, that ends the inquiry. There was no other lawful basis offered for the search. As such if the search was done for some other purpose not connected to the drive suspended charge, it was unlawful and a breach of Mr. Clayton’s s. 8 Charter right.
[43] If I find that I do believe Officer Logozny I still must decide, as Justice Lamer noted in Caslake above, whether the decision to search the vehicle for the licence was a reasonable one. This has both a subjective and objective component to it. Officer Logozny must have subjectively believed that the licence might have been in the car and this subjective belief of his must be objectively reasonable. Said another way, even though a search incident to arrest is permitted in circumstances where grounds to obtain a warrant do not exist, if it was unreasonable to believe the particular item to be searched for, in this case the licence would even be found in the vehicle, then there is no lawful authority to search the vehicle for it.
[44] Section 10(b) of the Charter guarantees that upon arrest or detention, everyone has the right to retain and instruct counsel without delay and to be informed of that right. This imposes three basic obligations on the police. The first is informational, they must advise the person upon arrest or detention of their right to counsel. The second is implementational, they must assist the detainee in facilitating access to counsel. The third is the police must hold off questioning the detainee before facilitating contact with counsel.
[45] As noted earlier, the Crown has conceded that Mr. Clayton’s s. 10(b) rights were violated in two ways. The informational component was violated when Officer Logozny failed to inform Mr. Clayton of his rights upon his arrest for drive suspended, but instead chose to wait until he found the drugs and rearrested him. As well, his 10(b) rights were further violated when Detective McMurtrie failed to hold off questioning Mr. Clayton after he had requested to speak to counsel but before he could.
[46] Since the Crown at the very least conceded these s. 10(b) violations a determination of whether the evidence located by Officer Logozny ought to be excluded at trial pursuant to s. 24(2) of the Charter has to be made. In making this determination I am of course obligated to follow the Supreme Court’s decision in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32. In Grant, the Court held that I am to make this determination by assessing and balancing the following three factors; first the seriousness of the Charter-infringing state conduct; second the impact of the breach on the Charter-protected interests of the accused; and third, society’s interest in the adjudication of the case on its merits.
Analysis and Findings
[47] When assessing the evidence in its entirety, I find I simply do not believe Officer Logozny was searching the vehicle for Mr. Clayton’s licence. There are a variety of reasons why I do not accept his evidence in this regard, not the least of which is he claims to have been searching the vehicle for a driver’s licence that had been suspended since November 9, 1992, some 27 years before he pulled Mr. Clayton over.
[48] However, it is not just that. Officer Logozny, at the time had been a police officer for approximately three years. He stated he was on general patrol that day starting his shift at 6:00 am. In cross examination he was asked why if he was on general patrol, he described his duties that day as being on “proactive patrol.” When asked to explain the difference between general patrol and proactive patrol he testified he sees himself as a proactive officer. He described this as an officer who is “alert and in between calls for service, able to be successful in locating infractions, whether they be minor, such as something driving, or something criminal.” When further asked how that definition is different for the definition of general patrol, he said they were the same.
[49] It was suggested to him that he used a different term because the two types of policing were different. It was suggested that “proactive” was a more aggressive form of policing where he would look to pull people over for simple or minor infractions. He denied this, but in the circumstances, I believe the defence was correct in this regard at least in relation to this investigation on this day.
[50] Officer Logozny told a relatively straightforward account of how the initial stop unfolded in his examination in chief. He stated he was traveling eastbound on Highway 403 in the passing lane going slightly above the speed limit. When he first observed Mr. Clayton’s vehicle, it was in the right or traveling lane going the speed limit. Since he was in the lane to Mr. Clayton’s left and going slightly faster than him, Officer Logozny eventually began overtaking Mr. Clayton. As he was doing so and as the vehicles were parallel, Officer Logozny said Mr. Clayton slowed down “tremendously.” This act of slowing down, made Officer Logozny suspicious. When asked why this made him suspicious, he stated that was an indicator the person was trying to avoid the police or that there may be a Highway Traffic Act violation they did not want police to be aware of.
[51] As a result of this Officer Logozny slowed down to about 80 kmh. While Mr. Clayton was still a bit behind him, he queried Mr. Clayton’s licence plate and learned the validation tag was expired. At this time Officer Logozny made the decision to pull Mr. Clayton over. He continued to slow as did Mr. Clayton and eventually Officer Logozny got behind Mr. Clayton and stopped him.
[52] The cross examination of Officer Logozny on this aspect of the case quickly became frustrating to listen to and I'm sure, frustrating to conduct. Officer Logozny seemed reluctant to directly answer counsel’s questions on these points. Several times during the course of answering questions, Officer Logozny would make sure to emphasize Mr. Clayton had slowed down when he became parallel with him. It seemed to me that he wanted to emphasize this was the action on Mr. Clayton’s part that triggered his suspicion and started the cascade of events that led to the stop and search.
[53] He seemed to want to emphasize this point because I find he didn’t want to appear to be simply driving down the highway noting and running licence plates. He emphasized the slowing of Mr. Clayton as the triggering event to rationalize his interest in him. Up until that point he acknowledged there was nothing about Mr. Clayton’s driving that would raise suspicion. He was traveling on the highway, in the proper lane at the speed limit. His driving itself was normal and didn’t stand out.
[54] However, what did come out in cross examination was that Officer Logozny observed and at least made a mental note of Mr. Clayton’s vehicle’s licence plate number while he was still behind him and before he had slowed or done anything to raise his suspicion. For some reason Officer Logozny was also reluctant to admit he had memorized Mr. Clayton’s licence plate. When asked if he memorized the plate he said “it was in my memory” or “in my mind” but wouldn't admit that’s the same as memorizing.
[55] It also came out that he ran the licence plate number earlier than implied in his examination in chief. In cross examination he admitted he entered the licence plate into his onboard computer as he and Mr. Clayton were still parallel and as soon as Mr. Clayton had slowed. The act of running the plate and the slowing were connected more closely in time.
[56] Even the act of slowing itself as noted earlier, Officer Logozny tried I find to make more of it than it deserved. He admitted that when approached by police on the highway people do often become nervous. However, he described Mr. Clayton’s actions as more extreme. Slowing down, even to 80 kmh when a police officer pulls beside you on a highway, to me does not seem extreme.
[57] In any event, what all this does is leads me to believe that proactive policing for Officer Logozny does mean a somewhat different form of policing. What it seems to have meant here is that as Officer Logozny was patrolling the highway that day, he came upon a vehicle being operated by Mr. Clayton and even though it had done nothing wrong, was being operated properly, and before it caused any suspicion, he made a mental note of the licence plate number. Then the moment it did do something to pique his interest, he ran the plate and formed the basis to pull it over.
[58] If he had just acknowledged this is how the event unfolded, it would have made his examination much less “exhausting” as Mr. Paquette described it at one point. The validity for the stop has not been challenged. Mr. Clayton was driving a vehicle with an expired validation tag. That gave Officer Logozny grounds to pull him over. The defence conceded as much.
[59] What this has led to though is an inability for me to accept Officer Logozny’s testimony at face value, especially when it comes to his motivation for doing things during this investigation, like the search of the vehicle.
[60] Turning to the search of the vehicle, Officer Logozny claimed it was to locate Mr. Clayton’s driver’s licence. There was some mention of a Texas licence but it was clear from his testimony he was claiming to be searching for his Ontario driver's licence as he claims he thought he needed it as evidence for the drive suspended charge. He also testified he thought the licence might be in the vehicle as a lot of time suspended drivers will have their licence on their person, in their wallet or in their vehicle, so that is why he searched the vehicle for it.
[61] In all the circumstances of this case though, there are several reasons why I do not believe Officer Logozny actually thought the driver's licence could be in the vehicle. First, he had patted down and searched Mr. Clayton and the driver's licence wasn’t on him. Second Mr. Clayton had advised Officer Logozny that he didn’t know where the licence was. Third, the vehicle didn’t belong to Mr. Clayton and by the time of the search Officer Logozny knew that. Fourth, and most importantly, as noted earlier, Mr. Clayton’s driver's licence was suspended as of November 9, 1992, almost 27 years before Officer Logozny pulled him over. It is simply not believable, considering all these circumstances that Officer Logozny actually thought he would find the driver's licence in the vehicle.
[62] Even if I had found that Officer Logozny subjectively believed the driver's licence could have been in the vehicle, I would have found that his subjective belief was not objectively reasonable. That finding would be based on the same set of circumstances noted above. There was no licence on Mr. Clayton, he advised, not surprisingly that he didn’t know where it was, the vehicle didn’t belong to him and the licence had been suspended for almost 27 years.
[63] What I find really happened was another aspect of Officer Logozny’s proactive policing. He made an arrest for drive suspended and used that arrest as an opportunity to conduct a search of the vehicle. It was not as I've noted, to locate the licence but was done to be proactive and see what could be found. In doing so Officer Logozny did not have, as Justice Lamer stated in Caslake above, what he needed “…one of the purposes for a valid search incident to arrest in mind when the search is conducted.”
[64] Given this finding, the search of the vehicle was unlawful and constituted a breach of Mr. Clayton’s s. 8 Charter right.
[65] The s. 10(b) violations have been conceded by the Crown. However, some mention of them should be made here. What the facts bear out is that Officer Logozny arrested Mr. Clayton and gave him his rights to counsel at 11:51 am that morning. This didn’t occur until 13 minutes after he handcuffed him to the rear and placed him in the backseat of his cruiser. When given his rights, he unequivocally indicated he wished to speak to a lawyer.
[66] Detective McMurtrie arrived at 12:20 pm and spoke to Officer Logozny. He was advised by Officer Logozny that he had given Mr. Clayton his rights to counsel. He is unsure whether Officer Logozny told him that Mr. Clayton asked to speak to a lawyer and he also couldn't recall if he asked. He also acknowledged he did not advise Mr. Clayton of his rights to counsel again prior to questioning him.
[67] He questioned him for 10 minutes and obtained inculpatory information and intelligence that the police otherwise would not have obtained if Mr. Clayton’s rights had been respected. There was no need to question Mr. Clayton at the side of the road. There were no concerns for officer safety, there were no other investigative steps that were outstanding in that this was a fortuitous find for the police, and there was no need to rush to question Mr. Clayton at that time. It was clear he was going to be taken back to the station for processing and the ability to speak to counsel there could be accommodated.
[68] After considerable prompting in cross examination, Detective McMurtrie acknowledged he knew the police were obligated to hold off questioning a suspect who requested an opportunity to speak to counsel until that can be accommodated. He acknowledged this was a fundamental failure on his part that he attributed to the excitement of being involved in such large seizure of drugs. In questioning him as he did, he acknowledges being irresponsible and neglectful.
[69] In turning to the appropriate remedy under s. 24(2) of the Charter I start by addressing the Crown argument that the drugs found were not connected to the s. 10(b) violation. As a threshold matter, the defence must demonstrate the drugs were obtained in a manner that violated Mr. Clayton’s s. 10(b) rights. The courts have given the obtained in a manner a generous view. If there is a temporal or contextual connection between the finding of the evidence and the breach then this threshold has been met. See R. v. Pileggi, 2021 ONCA 4 par. 98-109.
[70] Here there was both a close temporal and contextual connection. When the first 10(b) violation occurred, the drugs had yet to be found. Mr. Clayton was not advised of his s. 10(b) rights. It was the locating of the drugs that in fact prompted it. The second and more serious violation by Detective McMurtrie occurred after the drugs were found. However, there was still a close temporal connection and contextual connection as well. It was not long after the drugs were found, they were still at the side of the road and the investigation was still unfolding. In the circumstances the obtained in a manner threshold is met here.
[71] The first step of the Grant analysis is the seriousness of the Charter-infringing state conduct. In making this assessment, I find the seriousness of the violations is increased by the fact more than one Charter violation occurred. Two of Mr. Clayton’s Charter rights were violated that day by two separate officers. This I find demonstrated a pattern of disregard for the protections the Charter is meant to afford.
[72] Valid traffic stops cannot be turned into generalized criminal investigations. Mr. Clayton was stopped and arrested for a relatively minor regulatory offence. I found that Officer Logozny took this as an opportunity to embark on a search of the vehicle for reasons not connected to the drive suspended charge he was investigating. Even though it is lesser, there is still an expectation of privacy attached to a motor vehicle. In this case Officer Logozny searched the vehicle itself but also Mr. Clayton’s wallet and the backpack that was zipped closed on the passenger seat.
[73] The s. 8 breach was not done in good faith or in an inadvertent manner. The law in relation to searches incidental to arrest is not new or novel. Acting as he did Officer Logozny demonstrated a serious departure from constitutional norms.
[74] The s. 10(b) breach is nothing less than egregious in the circumstances. Mr. Clayton was in a very vulnerable situation. He was alone, handcuffed and seated in the back of a cruiser. He had just been arrested for a very serious offence which could very well lead to a lengthy period of incarceration. None of the officers on the scene that day seemed to have given much consideration to respecting Mr. Clayton’s right to counsel.
[75] Detective McMurtrie’s behaviour that day was particularly problematic. He was an experienced officer. He claims to have been aware of his obligation to hold off questioning a person in Mr. Clayton’s position however he did it anyway. He claims it was not done as a purposeful affront to Mr. Clayton’s Charter rights, but not turning his mind to or being neglectful of his obligations in these circumstances does not lessen the seriousness of his actions.
[76] Officer Logozny is also not blameless here. He was the officer in charge and Mr. Clayton was his detainee. He should have been more mindful of the situation and was obligated to make the other officers who arrived on scene aware of Mr. Clayton’s request to speak to counsel. The Crown in submissions argued that the reality of the situation in that Officer Logozny was lower in rank and much less experienced likely made him reluctant to confront Detective McMurtrie in the circumstances. Constitutional standards though cannot be lessened simply because an officer is afraid to stand up to a superior officer. Moreover, if he were afraid to tell a superior officer to respect a detainee’s Charter rights, this would speak volumes about the culture of that particular police service and make any such violation even more serious. To be clear, I am not making such a finding. No one put such a possibility to Officer Logozny, my point is only to address the argument of the Crown and explain why it carried no weight.
[77] I am also cognizant that Detective Constable Adach was also on the scene while Detective McMurtrie conducted his questioning of Mr. Clayton. Although he did not take part in the questioning of Mr. Clayton both he and Officer Logozny would have been aware what Detective McMurtrie was doing and neither saw fit to try to stop him or assess whether Mr. Clayton’s Charter rights were being respected.
[78] In the end on this first branch of the Grant analysis I find that the Charter infringing state conduct was very serious in the circumstances and that this favours exclusion of the evidence.
[79] I must next assess the impact of the breach on the Charter-protected interests of the accused. As noted, there is a lesser expectation of privacy in a motor vehicle. As well the motor vehicle was not owned by Mr. Clayton and the backpack was in plain view on the seat. These factors lessen the impact of the search on Mr. Clayton’s Charter protected interests.
[80] However, the 10(b) violation is much different. The right to counsel has been described as a lifeline for persons in custody. See most recently Pileggi above at par 123. As noted, Mr. Clayton was in a vulnerable position, alone and cuffed in the back of a cruiser when questioned by Detective McMurtrie. Although the Crown did not try to tender the evidence at trial the police gained inculpatory information and intelligence from him that they otherwise would not have gained.
[81] Overall, this factor as well favours exclusion.
[82] The final assessment I must make is society’s interest in the adjudication of the case on its merits. The evidence in question is reliable and was not compromised by the breaches. The items located go to the heart of the Crown’s case. The charges are particularly serious. The controlled substances in question are extremely insidious and no doubt had the potential to cause great harm to the community. This factor clearly favours inclusion.
[83] In balancing these three factors, I find the long term repute to the administration of justice in this case favours exclusion of the evidence. The failures of the police were cumulative and particularly serious. The breaches were committed by more than one officer and it seemed all officers on the scene, perhaps except for Officer Gretzky, who was not directly involved with Mr. Clayton or the search, chose to disregard the protections the Charter was meant to afford Mr. Clayton that day. The combined force of the first two Grant factors outweigh the inclusionary impact of the third factor. As such, the justice system needs to disassociate itself from such behaviour and the best way to maintain the long term repute of the administration of justice is by excluding the evidence in this case.
Conclusion
[84] For the foregoing reasons, I find that the police violated Mr. Clayton’s s. 8 and 10(b) rights in this case. As a result of these violations all evidence located during the search of the motor vehicle and the backpack will be excluded from the trial.
Released: April 26, 2021 Signed: Justice Robert S. Gee