Ontario Court of Justice

Date: 2021-11-26 Court File No.: Central East – Barrie – C17001448

Between:

HER MAJESTY THE QUEEN

• AND -

ELIJAH GRIFFITHS

Before: Justice P.N. Bourque

Heard: September 8, 13, November 5, 2021

Charter Ruling

Released on: November 26, 2021

Counsel: A. Meiners, counsel for the Crown G. Holder, counsel for the Defendant

BOURQUE J.:

Background

[1] The defendant is charged with possession of cocaine and heroin mixed with Fentanyl, for the purpose of trafficking. The Crown alleges that the defendant was in the back seat of a black Jeep parked in a hotel parking lot, and had the drugs on his person or near to him in the car.

[2] The trial proceeded with a Charter application. The defendant alleges that his s. 7, 8, 9 and 10 rights were infringed by the police and therefore any and all physical evidence of any drugs and any utterances made by him be excluded from the evidence in this trial.

Crown Evidence

Ricky Hachey

[3] ...is 62 years old and lives on an ODSP pension. He describes himself as being clean from drugs for the past two years. He has little memory of his drug days but admits he used crack cocaine and heroin. He also admits that he owned a Jeep vehicle but does not remember exactly when. He cannot identify the defendant and has no specific recollection of any events of April 11, 2017. He was shown his criminal record and it had three entries, two of which were drug possession charges and all were after 2017.

Jason Dorion

[4] …is a Barrie Police officer and had about 17 years of experience at the time of this investigation. He was cross-examined about his notes, which contained very little detail about this investigation and very few times are noted for any of the events surrounding the arrest and subsequent handling of the defendant at the station.

[5] In one instance where the notes would have put the officer on the other side of the Jeep at the start of the investigation, the officer indicated that he made a mistake in his notes. The officer also revealed in cross-examination that his notes may not be in chronological order. He gave no explanation why this was so. He made this remark as the defence was inquiring about the length of time it took this officer to put the defendant in touch with his counsel. None of these factors would inspire confidence in the ability of this officer to accurately relate the facts of this investigation.

[6] He was on regular patrol with another officer (PC Jansen) in the early morning hours of April 11, 2017. They were doing a routine check of various hotel parking lots in the City of Barrie. He insisted that hotels were “hot spots” for drugs, and often drugs are dealt out of hotel rooms.

[7] He stated that at 02:46, he saw a Jeep vehicle which he said was know to him to be owned by a known drug user (Ricky Hachey). In cross-examination, it was pointed out to the officer that, as of that date, Hachey had no criminal record and no record of convictions for drug use or trafficking. He stated that he had spoken to him many times but he had never arrested him for drug use and had never arrested anyone in his vicinity for any drug offences. The officer still insisted that he was a well known drug user and kept the company of other drug users and traffickers.

[8] He stated that he parked behind and to the right of the Jeep and he went up to the passenger side and he said the window was rolled down. He immediately stated that he smelled “fresh marijuana” and that he was intending to search the vehicle.

[9] He spent a lot of his evidence describing how successful he was in smelling marijuana and it was his assertion that if he ever smelt marijuana from a car and did not find any, it was only because it was well hidden. He refused to accept that a smell of marijuana can persist after the marijuana is no longer there.

[10] In the totality of his evidence about his skills in smelling marijuana, I do not believe he had any greater or less ability than anyone else in smelling marijuana. He certainly was not proffered as an expert on the smell of marijuana.

[11] He stated that when he first came up to the Jeep, he saw a driver and a passenger in the front seat. After he stated that he had smelled the marijuana and was convinced there was marijuana in the car, and that he was going to conduct a search, a person (the defendant) from the back seat put his hand out of the window and was holding a closed zip lock bag, which the officer believed contained marijuana.

[12] The officer immediately ordered the parties out of the vehicle, and he arrested the defendant and searched him. He found in the defendant’s pocket a baggy with “several types of drugs” and arrested him for possession for the purpose of trafficking. He stated that he put him the back seat of his cruiser and read him a caution and the right to counsel.

[13] He stated that the defendant told him he understood and stated that he wished to speak to his lawyer and the officer said he could do so back at the station. The officer did not note the time of any of these actions. He admitted to defence counsel that from his point of view, all the persons in the car were detained by him when he smelled the marijuana.

[14] He stated that he went back to the vehicle and searched only the area where the defendant had been seated and stated that in the map pocket on the back of the front passenger seat, he found a Walmart shopping bag which had inside a vacuum sealed bag with a large quantity of crack cocaine. He then arrested the other two persons in the car for possessing drugs for the purpose of trafficking and then searched the entire vehicle but did not find any other drugs.

[15] He took the defendant to the station and paraded him before the duty officer and then proceed to log in the exhibits and prepare them for submission for analysis. It was only after all these tasks had been completed that he turned his mind to providing the defendant with access to his counsel of choice (the defendant gave him the name and phone number of his counsel) and at 04:40 made a first call to the defendant’s lawyer, some 2 hours after the arrest. He gave no explanation in his evidence in-chief about why he waited so long to perform this task. He certainly gave no evidence that he needed to delay the call to the lawyer for some investigative purpose.

[16] In total, the officer questioned this defendant three times about drugs. The initial time he told the occupants of the Jeep that he was going to search it and was certain he would find marijuana and therefore they should hand the marijuana over to him. The officer insisted he did not direct this to the defendant, as he did not know he was there.

[17] The second time was after the defendant was given his right to counsel and indicated that wanted to talk to a lawyer. The third time was at the station, when after some time in police custody, the officer went to him to ask him about some aspect of the drugs. All of these requests elicited an inculpatory response from the defendant, and on at least two occasions, the officer was aware that he had a duty to refrain from eliciting information from the defendant about the offence he was investigating.

[18] Defence counsel pointed out to the police officer that at no time did the officer seek to elect any information about the drugs from either of the other persons arrested at the scene for this offence (Hachey and Polykov).

[19] The Defence also pointed out that the charges against the other defendants have been withdrawn, notwithstanding the significant record of Polykov, which includes several drug offences. The defendant Griffiths is black, and both of the other defendants are white.

Martin Walsh

[20] …is a Special Constable and on April 11, 2017 was in charge of booking prisoners into the Barrie detachment. He had no recollection of the events and testified from his notes and from the logs that were kept by him of prisoner movements. The logs show that the defendant was the last of the three prisoners (Hachey, Polykov and Griffiths) to be logged in at 03:44. There is a notation that Polykov waived his right to counsel and that Hachey was actually taken to speak to duty counsel at 03:46. There is a notation that Griffiths had stated he wished to speak to his lawyer (Holder) and had given a phone number. There is no notation in any of these logs that Griffiths was ever removed from his cell for any reason.

[21] The officer indicated that it was not his job (that has now changed) to facilitate any prisoner speaking to duty counsel.

Michelle Janson

[22] ...is a Barrie police officer of some 10 years’ experience. She was with officer Dorion that evening, and she stated in her evidence that she believed that she knew the black Jeep in the parking lot and knew it was operated by Hachey, whom she believed had some connection to drug issues, although she had never found drugs on him, nor had ever arrested him.

[23] I also note that in her notes, she stated that it was Dorion who said that he knew that Hachey was connected to drugs. She stated that she went up to the driver’s door (where the window was rolled down) and spoke to Hachey. She did not smell marijuana. She did not notice the defendant in the back seat.

[24] She stated that she searched the front of the vehicle and stood by for officer safety while Dorion arrested the three occupants of the car. She helped transport them to the station but had no further dealings with this matter. She did not assist in any way with regard to facilitating the defendant’s contact with counsel.

Certificates of Analysis

[25] Filed as exhibits in this matter were the certificates of analysis indicating that the police seized cocaine and heroin mixed with fentanyl.

[26] There was no issue as to the continuity of the exhibits.

Charter Applications

Did the officer have grounds to search the motor vehicle and arrest the defendant?

[27] The officer said that the vehicle was parked at a hotel parking lot, the owner of the vehicle was a known “drug user”, and he detected the smell of “fresh marijuana” from the vehicle. The question is, does this give him grounds to search the vehicle for drugs.

[28] I must first assess the credibility of the arresting police officer. Quite frankly, I am concerned about several aspects of his evidence. His insistence that all hotel parking lots in Barrie are places of drug crime was so overbroad as to be beyond belief. I am sure there are any number of parking lots, where, under the cover of darkness illicit activities occur.

[29] I note in this case that we were not dealing with a remote section of the parking lot, but right at the entrance. I find that the area was lit as it was right in front of the front door. In my view the officer did not make any note of the darkness, nor did he carry his flashlight because he was not concerned with whether it was dark or not.

[30] The assertion that the owner of the car was a “known drug user” and person who drove around drug users and drug traffickers, was not supported by the evidence known to the officer at the time. The witness Hachey had no drug record at the time and there is no evidence that this officer (or any other officer) had ever arrested him, or anyone found near him for any drug offences. Hachey may have had a “reputation” for drug use, but it was not based on any facts known to this officer.

[31] Finally, I must deal with the officer’s evidence about his purported smelling of “fresh marijuana”. I have already noted some of the difficulties I have about the officer’s evidence generally. I also note that the other officer at the scene was standing by the open driver’s window while all this was going on. She did not smell any marijuana. She did not indicate there was any deficiencies in her sense of smell, although she did not (as did Dorion) assert any special expertise in the smelling of marijuana. I find that based on all of this, I cannot place any reliance upon his assertion that he smelled marijuana. Because I cannot rely upon this assertion, there is very little left to support any basis for the search. It is just as evident from the evidence that he was going to search this vehicle based in his knowledge of the driver and the location of the vehicle.

[32] I find that the officer did not have sufficient grounds to make a search of this vehicle, at the time he announced he was commencing a search of the vehicle. The Crown asserts that I should look at this at simply seeking a consent to search the vehicle and thus the handing over of the marijuana by the defendant was therefore before the search began. She relies upon the decision in R. v. Sebben, 2015 ONCA 270.

[33] I find that regarding the items enumerated in par 14 of the Sebben decision, that this officer was clearly intending to search the vehicle notwithstanding what else occurred, that his statement clearly would have the effect of inducing the defendant to hand over the marijuana, and that objectively anyone would have felt that the search was inevitable and there was a corresponding compelling of cooperation. I find that this search began at the moment the officer announced to all (including the defendant, even though the officer did not see him) that he was going to undertake a search of the car.

[34] The other question is whether the searching of the vehicle was a breach of the Charter rights of this defendant, who was a passenger in the car. While I find that his rights were not nearly as great as the owner or person in possession of the car, I find that he had some rights to the area of the vehicle that he occupied. I find that the officer’s breach of the right to be protected from illegal and arbitrary search and seizure was so great that the defendant’s rights were breached as well.

Were the defendant’s 10b rights infringed?

[35] The Crown admits that the defendant’s 10b rights were breached in at least two respects, that is, when the defendant was questioned (on two occasions when he indicated that he wished to speak with counsel) by the officer to obtain incriminating information and also the fact that this officer waited almost two hours from the time of arrest to attempt to put him in touch with his counsel (almost an hour from the time of the booking at the station). The Crown does not seek to argue that these breaches can be saved. The Crown proffers no excuses for the police conduct and even admits that such a breach (as compared to the section 8 breach) is “somewhat higher on the seriousness scale”.

[36] There is actually no evidence from the Crown that the defendant ever, at any time while in police custody, was able to speak to his lawyer. I note that the prisoner logs state that Hachey, did go a speak to a lawyer, and that Polycov did not wish to speak to a lawyer. For the defendant Griffiths, there is only silence. I believe that I can accept that on a balance of probabilities, that this defendant did not speak to his lawyer anytime during his stay at the police station.

[37] What the crown asserts is that the delay should be only from the time they arrived at the station, to the point that the officers put in a call to his lawyer. The Crown puts this as a delay of some 51 minutes. The total time of the delay from arrest to this call is almost two hours. The Crown believes that the obligation to put the defendant in touch with his lawyer only starts when they get to the station. I disagree. It starts right away. A delay of the reasonable time to get the defendant to the station is probably acceptable. The delay afterwards would not be but I believe that the shorter time frame must be seen in the overall delay from time of arrest and the call to counsel, as the cumulative events can add a level of urgency to facilitating the right.

[38] The breach is compounded by the fact that the officer, on two occasions, elicited incriminating information from the defendant when the defendant had indicated he wished to speak to his lawyer. This constitutes two further breaches of his 10b rights. This is (in my opinion) an officer who has no understanding of the defendant’s right to consult counsel, and for an officer of such experience, it is an indication that this is probably not a one off, as the Crown seems to suggest. It is more than just a simple mistake; it affects my view of the officer’s total approach to this investigation.

[39] The defence argues that there was also a detention of the defendant, (even though the police do not say they knew he was there) at the time that the officer announced he was going to search the car. The defence argues that a right to counsel should have been given at that point. He points to the fact that the officer testified that he was searching the car incident to arrest, although I think the officer was referring to the arrest he made after he was handed the marijuana. I agree that there was a detention (of all persons inside the car) at that point. I am confirmed in the view upon a review of the recent decision of R. v. Tutu, 2021 ONCA 805.

[40] This was at the outset a breach of the 10b rights of the defendant.

Should evidence be excluded under s.24(2)?

[41] As recently as R. v. Noel, 2019 ONCA 860, The Ontario Court of Appeal has restated the importance of the facilitating access to counsel in a timely manner. The court stated that:

[23] The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention: R. v. Bartle, [1994] 3 S.C.R. 173, at p. 191; R v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41: R. v. Rover, 2018 ONCA 745, 143 O.R. (3) 135, at para. 34.

[42] The court also reiterated that it is not relevant to delve into the details of what the legal advice would have been.

[43] The Noel case is factually similar our case in that the delay was about 1 ½ hours. I note with interest that it was argued by the Crown in Noel that the fact that the officer did not seek incriminating evidence from the defendant should weigh against exclusion. The court rejected that argument and said:

[19] First, had the police attempted to use Mr. Noel as a source of self-incriminating evidence before he had a reasonable opportunity to speak to counsel, that would have been yet another s. 10(b) breach. The seriousness of the breach the trial judge did find cannot be attenuated by the fact that the police did not commit an additional breach of Mr. Noel’s rights.

[44] On the authority of Noel, the questioning of the defendant by this officer has led to two further section 10b breaches.

[45] The evidence of the Special Constable is interesting. It is clear that in this detachment, only the arresting officer has any responsibility to take steps to protect the Charter rights of the defendant. This may be some indication as to how seriously this police force takes the Charter protected interests of a defendant in their custody, to consult with their counsel. It is also clear, that the other two defendants had their right to counsel issues dealt with promptly. There is no evidence that it was intentional, but at the least it was grossly negligent.

[46] Under the first test in R. v. Grant, 2009 SCC 32, this breach was extremely serious. I have found that the evidence of officer Dorion was unreliable in a very significant fashion. He was the one responsible to see that this defendant’s rights were implemented. He spent his time doing mechanical tasks in the bagging and marking of the evidence. It is clear where his priorities lay. I have found him to be negligent.

[47] The fact that the duty officer did not have any responsibility to see to the implementation of the right to counsel is an indication of some systemic lapses in the procedures of the Barrie Police Service (I understand they have now been changed).

[48] I contrast this with the findings in the case of R. v. Pileggi, 2021 ONCA 4, where the officers were diligent in the attempts to enlist the assistance of duty counsel, and the fact that they kept the defendant informed of these efforts and “no one attempted to elicit information from the appellant”.

[49] The factors cited above also would lead to the conclusion that the Charter-protected interests of the defendant were also seriously infringed. Notwithstanding the fact that the evidence was discovered before the breach, there is nothing in the facts of this case that would “mitigate the infringement”: see R. v. Pileggi.

[50] The police attempted to elicit incriminating evidence from the defendant twice and finally, there is no evidence as to when the implementation right was fulfilled. In terms of the “lifeline” as stated by Doherty, J.A. in Noel, we have no idea when the defendant, in this case, was no longer allowed to languish alone, unaware of what was going on. I also note the initial failure to provide the defendant with his 10b rights on the initial detention, which further compounds the total seriousness of these breaches.

[51] Only the third ground of the Grant test would favour admission for these section 10(b) breaches.

[52] Based on the factors noted above and on a weighing of them in total, I would conclude that all of the utterances of the defendant and all of the physical evidence seized by the police in this case should be excluded. I make this determination, even without considering the breach of the defendant’s s.8 and 9 rights.

[53] With regard to the s.8 and 9 breaches, in my opinion they would also, on their own, favour exclusion. As I have rejected the officer’s evidence that he smelled marijuana, there is nothing in the evidence to justify this search.

[54] Under the test in R. v. Grant, this is extremely serious police conduct and should not be excused in any fashion. The impact upon the Charter-protected interests of the defendant is also great. Again, as is usual in Charter breaches, the third ground favours admission, but on balance, I would exclude the evidence solely on this ground as well.

Conclusion

[55] The defendant has shown, on a balance of probabilities that his Charter rights under s.10b have been infringed and I find that pursuant to s.24(2) that the drug exhibits and utterances of the defendant during this investigation should be excluded from evidence. I make a similar finding regarding the s. 8 and 9 breaches.

Released: November 26, 2021

Signed: “Justice P.N. Bourque”