Court File and Parties

Ontario Court of Justice Date: June 15, 2021 Court File No.: Brampton 3111 998 20 8327

Between: Her Majesty The Queen — And — Daveion Shakeem Brown

Before: Justice G.P. Renwick

Heard on: 15 June 2021 Reasons for Judgment released on: 15 June 2021

Counsel: S. Skoropada, counsel for the Crown M. Sengupta-Murray, Counsel for the defendant Daveion Shakeem Brown

Renwick J.:

Introduction

[1] The Defendant is charged in a single count Information that he breached a Release Order by being outside of his residence contrary to a curfew condition.

[2] In advance of the trial, the Defendant brought a Charter Application to exclude the evidence of the Defendant’s utterances to police “while detained in police custody without having been given his rights to counsel.” The parties agreed to proceed to hear the Charter application during a blended proceeding, alongside the evidence of the trial proper. The prosecutor led no evidence of any utterances and abandoned a prophylactic voluntariness voir dire, for the sole purpose of cross examination in the event the Defendant testified during the trial.

[3] The prosecution called Police Constable Ismail Bawa as its sole witness. The Defendant relied upon the testimony of P.C. Bawa and called no other evidence on either the trial or the Charter Application.

[4] Without seeking to amend its pleadings, during submissions, the Defendant submitted that on the basis of alleged breaches of ss. 8, 9, 10(a) and 10(b) of the Charter, the evidence of the officer’s observations and the results of the police database query of the Defendant’s name should be excluded from the trial.

The Evidence and Findings of Fact

[5] Constable Bawa was an imperfect witness. That said, I believed much of what he had to say about this event. I find that the witness was attempting to be truthful and to accurately recall what he believed had occurred during the traffic stop and arrest of the Defendant.

[6] The officer testified that he stopped the Defendant while driving at approximately 2:30 am as the vehicle driven by the Defendant exited an “entertainment club.” He wanted to perform a sobriety check. The Defendant was the driver and produced a photographic driver’s licence. He had a female passenger. The officer was given a first name for the passenger, “Danielle.”

[7] The officer testified that as he approached the driver, he requested the usual documents and he held onto the Defendant’s driver’s licence until the Defendant was released from the scene at 3:40am.

[8] The officer testified that he performed the Alcohol Screening Device (“ASD”) sampling first because that was his reason for stopping the car and that is what he does in all similar cases. In cross-examination, it was pointed out that the officer’s notes suggest that he went to his police car and conducted a check of the driver’s license and driver’s name on the computer in his police car before he performed the ASD sampling. The officer explained that his notes were not chronological.

[9] The Defendant suggests that the officer is unreliable on the sequence of his investigative acts because he stopped the vehicle with an improper purpose in mind. It is suggested that the officer wanted to conduct a random criminal investigation under the pretext of a sobriety check. This accounts for the notation suggesting that P.C. Bawa conducted a name check and then after learning that the Defendant was possibly arrestable for an alleged breach of a Release Order (if he was not in the presence of a surety), he was given an ASD test.

[10] I reject the suggestion that the officer was mistaken or that he had misled the court about the purpose of the traffic stop, the progression of the investigation, or the true reason for investigating the Defendant for the following reasons:

i. Although the officer was not a perfect witness, he appeared genuine and testified in a manner of fact, unexaggerated way; ii. The officer testified in a professional manner and appeared to be unbiased towards the Defendant; iii. The officer testified that the Defendant was cooperative at all times; iv. There appeared to be no animus harbored or expressed between the Defendant and the officer during their encounter or subsequently; v. I believed the officer when he testified that he had no other purpose for initially stopping the white sedan driven by the Defendant beyond a sobriety check; vi. The officer did not appear to know the Defendant from any prior dealings; vii. There is no evidence to suggest that the officer could have known the identity of the driver of the white sedan before stopping the vehicle and identifying the driver; viii. There is no evidence to suggest that the officer could have known that the driver of the white sedan was on a Release Order before stopping the vehicle and identifying the driver; ix. There is no evidence to suggest that the officer’s purpose was other than to check the sobriety of the driver of the white sedan leaving a bar in the early morning hours; and x. There is no evidence to contradict the officer’s evidence and I believe P.C. Bawa with respect to the purpose of the investigation, the sequence of the investigation, and the contents of the investigation.

[11] I agree with the Defendant that the officer’s notes were imprecise and possibly misleading about the sequence of the officer’s dealings with the Defendant. However, I accept as a fact the officer’s evidence that after he learned that the Defendant had no apparent alcohol in his blood, the officer used his police computer to check the Defendant’s identity and driver’s licence.

[12] The Defendant submits that once the officer’s investigative purpose changed, he was bound to provide the Defendant with a reason for the continued detention and to facilitate and implement the Defendant’s s. 10(b) Charter rights to counsel. I agree with this submission, entirely.

[13] However, I do not find that the use of a police computer to check the Defendant’s identity and driving status was an impermissible step along the path of the initial driving investigation. It was prudent for the officer who was unfamiliar with the Defendant, his identity, or the status of the Defendant’s driver’s licence to make an inquiry using the tools available to him before releasing the Defendant from the traffic stop. This was undoubtedly told to the Defendant and could explain why when the officer returned to speak to the Defendant about what he had learned respecting a Release Order that the Defendant was ready for a discussion with papers in hand.

[14] The officer testified that the alcohol screening process requires that it be done efficiently and that is why he conducts the ASD sampling before he makes inquiries of the Defendant’s identity and driving status using his police computer. This explanation was reasonable. There was no contradictory evidence. I accept P.C. Bawa’s evidence that after he conducted the ASD testing he used his computer to confirm the Defendant’s identity and then he learned of the Defendant’s apparent Release Order, despite the sequence of events recorded in his notes.

[15] I find that the officer’s evidence supports that he told the Defendant when he first approached the sedan that he was investigating the driver’s sobriety. There is no contradictory evidence and I accept this evidence as credible and reliable.

[16] At some point, I find that P.C. Bawa used his flashlight to look into, or search, the interior passenger areas of the Defendant’s car. The officer testified that he did not perform a physical search of the car at any point. I accept this evidence. It was uncontradicted and reasonable. The flashlight search was a reasonable search for officer safety given the time of day, the fact that there were two occupants and the officer was alone, and to find support (work clothes and footwear) for the Defendant’s claim that he was coming from work.

Charter Application Decision

[17] On the basis of the facts as I have found them, I am not satisfied that there is any breach of the Defendant’s Charter rights. Once the officer learned that the Defendant had a Release Order associated to him, I find that he either told the Defendant what he had found and they spoke about whether or not the Defendant was in breach of a curfew condition, or, the Defendant prompted such a discussion because he knew that the officer was checking his name and identification. Though the nature of the investigation had shifted, it was organic, the nature of the continued investigation was known or made readily apparent to the Defendant, and he was arrested within a handful of minutes and before the officer could advise the Defendant of his s. 10(b) Charter rights for the continued detention preceding the arrest.

[18] I am not satisfied on the basis of the evidence that there was any s. 8 Charter violation in this case. If the Defendant was asked about the Release Order, any utterances he made were used solely for investigative purposes and the grounds to arrest. The prosecutor did not seek to lead any utterances of the Defendant at any point in the trial for any substantive purpose.

[19] Moreover, there was no physical search of the vehicle.

[20] As a result, I am not satisfied on a balance of probabilities that there was any unconstitutional search or seizure.

[21] As I have not found any Charter violation, I need not conduct a s. 24(2) analysis. However, had I found that the officer violated any of the Defendant’s rights, even if I had found that the violations were serious and would point toward the exclusion of evidence, I would not have excluded any evidence from this trial for the following reasons:

i. The impact upon the Defendant’s rights were negligible; ii. The traffic stop was brief; iii. The officer was respectful throughout his investigation; iv. The reason for the continued detention was always understood by the Defendant, even if not specifically articulated by the officer; v. The seizure of a driver’s licence and the use of a police computer to verify identity and driving status is generally appropriate during a traffic stop; vi. The use of a flashlight to illuminate the interior of a motor vehicle during a night-time traffic stop is not unreasonable or intrusive in the absence of evidence to establish the contrary; vii. There is a reduced privacy interest in being left alone by the state when travelling on a public road in a conveyance which is subject to provincial legislation and regulation; viii. The police interactions with the Defendant were not motivated by any improper purpose such that the court must dissociate itself from the state conduct by excluding evidence in this case; ix. I am not satisfied on a balance of probabilities that there is any evidence that “was obtained in a manner” that infringed the Defendant’s Charter rights; and x. I am not satisfied on a balance of probabilities that the three-prong test for exclusion from R. v. Grant, 2009 SCC 32 leads to exclusion of any evidence in this case.

Trial Decision

[22] In order to find the Defendant guilty, I have to be satisfied beyond a reasonable doubt that the Defendant breached a valid Release Order when he was found by P.C. Bawa in a motor vehicle at 2:30 am on 27 August 2020.

[23] The prosecutor relies on the documents (exhibits 1A and 1B) to establish that the Defendant was bound by a release order in respect of an assault with a knife in Toronto. Without doubt, the allegations underlying the apparent release order are serious.

[24] The Defendant submits that there is no admissible evidence to prove beyond a reasonable doubt that the Defendant was in breach of a Release Order on two grounds. First, the Defendant does not concede that the documents entered into exhibits on the trial establish that he is the person named in the documents. Second, the Defendant was found in the company of a female and there is no admissible evidence to prove beyond a reasonable doubt that the curfew exception (“when you are in the presence of one of your sureties”) does not apply.

[25] I am satisfied beyond a reasonable doubt that the Defendant is the person named in Ex. 1A and 1B because he shares the same first, middle, and last name of the person identified, as well as the same date of birth. Also, there is no doubt that the Defendant knew he was on bail as he presented some bail papers to P.C. Bawa when the officer returned to his car.

[26] The Defendant submits that because the officer did not thoroughly examine the documents held by the Defendant there exists some reasonable doubt that the bail order and Information produced to the court are the same documents. I do not find this argument persuasive.

[27] However, even rejecting this argument has left me with a reasonable doubt in this matter. The prosecution called no direct evidence that the Defendant was not in the company of one of his sureties. The evidence in this case is circumstantial.

[28] In order to convict on circumstantial evidence, I must be satisfied that the only reasonable inference that I can draw on the totality of evidence establishes that the Defendant was not in the presence of his surety, contrary to a Release Order, when he was stopped by P.C. Bawa.

[29] I have to be satisfied beyond a reasonable doubt that the female passenger, known only to P.C. Bawa as “Danielle” is not Anna Tsan or Melita Ambersley.

[30] I have no way of knowing whether “Danielle” is a pseudonym, a nickname, or even the true name of the female passenger. In this case, where the officer was aware that the Defendant had an exception to his curfew, when in the company of a surety, the officer was duty bound to perform a complete investigation of the identity of the female passenger. Unfortunately, his investigation falls short of establishing the female’s identity with any precision.

[31] I have no evidence with which to find that “Danielle” was not Ms. Tsan or Ms. Ambersley. I do not know “Danielle’s” last name, date of birth, relationship to the Defendant, address, or telephone number. Any of these pieces of information could have helped to prove the female passenger’s identity, given that they are recorded on the Defendant’s Release Order.

[32] Lastly, because bail orders are often changed, Ex. 1A includes a consent variation (apparently dated 23 July 2020), it would be helpful to have evidence that the Order that is alleged to have been breached was current on 27 August 2020.

Conclusion

[33] In the result, although all of the evidence on the trial was admitted and not subject to exclusion under the Charter, I am not satisfied beyond a reasonable doubt that the Defendant breached his Release Order on 27 August 2020. Accordingly, Daveion Shakeem Brown is acquitted of the charge on Information 20-8327.

Released: 15 June 2021 Justice G. Paul Renwick