Court File and Parties

ONTARIO COURT OF JUSTICE

Date: May 16, 2023 Court File No.: 22-0452, 22-0453

BETWEEN:

HIS MAJESTY THE KING

— AND —

MATTHEW TAYLOR

Before: Justice Robert S. Gee

Heard on: April 3, 17 and 21, 2023 Reasons for Judgment released on: May 16, 2023

Counsel: T. Mimnagh, for the Crown D. Loft, for the accused

Gee J.:

Introduction

[1] The accused, Matthew Taylor (“Taylor”), was stopped operating a motor vehicle on Charing Cross Street, in the City of Brantford at approximately 2:00 am on Feb 27, 2022.

[2] Taylor was arrested at the time for driving suspended and a backpack alleged to be his, was searched incident to that arrest.

[3] Inside the backpack were a number of different controlled substances. There was 33.6 grams of cocaine, 11.7 grams of a cocaine/methamphetamine mixture, 11.7 grams of fentanyl, 139 grams of methamphetamine, and 135 hydromorphone pills.

[4] As a result, Taylor was charged with four counts of possession of a controlled substance for the purpose of trafficking. One count for each of the cocaine, fentanyl, methamphetamine, and hydromorphone, contrary to s. 5(2) of the CDSA. He also faces a charge of failing to keep the peace on a probation order he was subject to at the time.

[5] These are indictable offences and Taylor chose to have his trial in the Ontario Court of Justice. Four witnesses all police officers, testified. Taylor chose not to testify or call any evidence.

[6] The nature of the substances seized, continuity of them, and that the substances were possessed for the purpose of trafficking were all admitted by Taylor.

[7] Taylor has claimed his rights pursuant to s. 8 and 9 of the Charter were violated by the police during the investigation and seeks exclusion of the controlled substances as a remedy under s. 24(2). In the alternative, he argues the Crown has failed to prove he was in possession of the substances.

[8] The evidence on the Charter Application and the trial evidence was heard at the same time in a blended manner.

Evidence

Officer Rikki Digout

[9] Officer Digout (“Digout”) has been a police officer with the Brantford Police for approximately 2 years.

[10] She was on duty this night, patrolling in the area of 255 Charing Cross Street. Police had been asked to pay particular attention to this area as there had been recent reports of vehicle entries and stolen propane tanks in the area.

[11] 255 Charing Cross in particular was an address known to Digout. She had been there on prior weapons and overdose related calls and had on those occasions, never seen any motor vehicles there.

[12] At the time she noticed there was an idling motor vehicle facing the residence.

[13] She did a three point turn in a driveway and radioed in the licence plate for this vehicle. In doing so she mix up two of the numbers on the plate and as a result the plate number submitted did not match the vehicle.

[14] It was later determined when the proper plate number was checked, that the plates were registered to that vehicle.

[15] When she was advised the plates were not associated to the vehicle she pulled in front of 245 Charing Cross and parked.

[16] She then radioed in a suspicious vehicle call and requested back up.

[17] She continued to observe the residence and noticed a person leave from the area of the idling motor vehicle and enter another nearby vehicle and proceed her way.

[18] She radioed for the other cruiser she requested to assist with a tandem stop of this vehicle which they did at 1:56 am.

[19] All the documentation requested from the lone female driver was proper.

[20] As they were dealing with this first vehicle, Digout noticed the idling vehicle which she thought had improper plates, start driving toward her.

[21] The first vehicle stopped was allowed to leave and this second vehicle was then flagged down and stopped by Digout with the assistance of the other two officers who had arrived, Officers Christopher Archi (“Archi”) and Radu Cozma (“Cozma”).

[22] Digout approached this second vehicle on the passenger side and spoke to the female passenger. She arrested this passenger but ultimately released her unconditionally.

[23] Digout admitted that she had already made up her mind to stop this vehicle if it left 255 Charing Cross, even before she ran the incorrect plate.

[24] While dealing with this passenger, Digout heard one of the other officers advise Taylor he was under arrest.

Officer Christopher Archi

[25] Archi has been a police officer with the Brantford Police since 2017.

[26] On the date of these events, he was acting as Cozma’s training officer as Cozma was new to policing.

[27] He and Cozma were together that night and were the officers who responded to Digout’s request for back up, arriving on scene at 1:56 am.

[28] At 1:57 am, Archi and Cozma assisted in blocking in the first motor vehicle stopped by Digout.

[29] When the second vehicle being operated by Taylor approached, Archi stepped into the road, flagged it down, and stopped it.

[30] He approached this vehicle on the passenger side and advised Taylor he was stopped for the improper plates.

[31] He then asked Taylor for his documentation for the vehicle and his licence.

[32] Archi said Taylor initially ignored him, did not respond to this demand and kept facing forward, looking out the front windshield. He made the demand again and Taylor indicated his licence was suspended. Taylor also advised the vehicle was a rental.

[33] Archi asked for any identification and Taylor retrieved a small grey backpack from the area of the centre console.

[34] He placed the backpack between his legs on the driver’s side wheel well. This appeared to Archi to be an attempt to conceal the backpack from his view, so he asked Taylor if he had any weapons.

[35] Taylor initially ignored this question and ultimately when asked again he denied having any weapons. At this time Taylor retrieved a wallet from the grey backpack and then closed it back up while still between his legs.

[36] Taylor produced an Ontario photo identification card that was provided to Archi and upon viewing it, he was satisfied with Taylor’s identity.

[37] Archi then requested a CPIC check be done on Taylor and he proceeded to the driver’s side and instructed Cozma to arrest him for drive suspended.

[38] Archi stated the decision to arrest as opposed to release on a Part III summons was based primarily on officer safety. These concerns were based on Taylor initially ignoring him when he demanded identification, the concealing of the backpack between his legs and, then again not answering right away when he was asked about weapons in the vehicle.

[39] Archi also indicated the investigation was still unfolding and the police had yet to have a chance to review the status of the vehicle.

[40] Archi then returned to the vehicle and searched an Ontario Cannabis Store container found in the centre console but which upon inspection, contained only M&Ms.

[41] He then requested from the passengers the backpack Taylor retrieved the wallet from so he could secure it with his property while he was in custody.

[42] A passenger initially handed him a different backpack but he ultimately retrieved the one he observed Taylor with.

[43] He stated he searched the backpack incident to arrest for weapons, evidence in relation to the offence and, for any means of escape.

[44] Archi also stated it was policy when taking somebody into custody to take their property with them and it is searched to ensure it does not contain anything that could put them or the arrested person at risk. As well, it is prudent to document a detained person’s property when coming into the custody of police to avoid liability issues if it is later alleged something is missing.

[45] When he looked inside the backpack, Archi immediately saw what he believed was a large amount of crystal methamphetamine.

[46] Upon finding this, he immediately advised Digout as the officer in charge and turned the backpack over to her.

[47] He returned to the vehicle to speak with the rear passenger. The windows were tinted and he stated he had difficulty speaking to them through the driver’s side front door so he opened the rear door on the driver’s side.

[48] Officer Barber was on the other side of the vehicle and opened the passenger side rear door.

[49] When the rear door was opened, Archi observed a conductive energy device beside the rear passenger as well as a baseball bat.

[50] At some point information was received that the licence plates were the proper ones registered to the vehicle. Archi was not able to recall if he received this information before, or after arresting Taylor.

Officer Radu Cozma

[51] Officer Cozma has been a police officer with the Brantford Police since September 2021.

[52] On this night he was still in his coaching period and was with Archi, his coach/training officer.

[53] When the vehicle operated by Taylor was stopped, Cozma went to the driver’s side.

[54] Cozma stated as he went to the driver’s side, before he could say anything, Taylor told him the vehicle was a rental and that he was a suspended driver.

[55] When it was learned he was a suspended driver, Taylor was removed from the vehicle and arrested by Cozma.

[56] Cozma was unable to recall if he made the decision to arrest or whether he was directed to do so by Archi.

[57] Cozma stated the decision to arrest for driving suspended was made for officer safety reasons and the factors that went into that decision were, the time of night, there were three people in the vehicle, the area where this took place and, he felt the person in the rear of the vehicle was trying to hide his face.

[58] In terms of how the rear passenger was hiding his face, he observed him to be wearing a hoodie and he had the hood up and he was looking down.

[59] Also, at the time of arrest, it was still believed the licence plate was not correct for the vehicle. It was not until after Taylor’s arrest that it was confirmed the proper plate was on the car.

[60] Cozma testified he had not considered whether to release Taylor yet as the investigation was still ongoing and, everything had to be taken into consideration.

[61] Cozma searched Taylor upon arrest and found a quantity of cash, two cell phones, and three credit cards in different names, which he found suspicious.

[62] Cozma indicated while he was dealing with Taylor at the cruiser, the other officers continued the investigation and within two minutes of his arrest of Taylor, the weapons had been located in the rear of the vehicle.

Officer Jason Barber

[63] Officer Barber has been with the Brantford Police since 2003 and holds the rank of Sergeant.

[64] Barber was the platoon Sergeant on duty that night and heard this call on the radio and attended the scene to assist.

[65] When he arrived on scene, Taylor was already in custody.

[66] He initially spoke to the front passenger of the vehicle. He wanted to ascertain if she was licenced and could drive the vehicle if after checking its status, they decided to release it. It turned out however, she was not licenced to drive.

[67] The windows of the vehicle were heavily tinted and rolled up. He opened the rear passenger door to ask the rear passenger if he was licenced.

[68] When he opened the door, he observed an item with a black textured hand grip that he initially thought was a firearm. When he saw this, he advised the officers on the other side of the vehicle to take him into custody. This item turned out to be the conductive energy device mentioned earlier.

Issue 1 – The Lawfulness of Taylor’s Arrest

[69] Section 217(2) of the Highway Traffic Act (“HTA”) authorizes the arrest of a person found driving under suspension. This authority though is discretionary, not mandatory.

[70] Once the decision to arrest has been made, s. 149 of the Provincial Offences Act (“POA”) requires the person to be released on a summons or offence notice unless the officer has reasonable and probable grounds to believe that, it is necessary in the public interest for the person to be detained, having regard to all the circumstances including the need to establish the persons identity, preserve evidence relating to the offence, to prevent the repetition or continuation of the offence or, if the person ordinarily resides outside of Ontario and would not respond to a summons.

[71] This section is mandatory, the officer shall release if these preconditions to continued detention are not met.

[72] These considerations on continuing an arrest in s. 149 of the POA mirror the powers to arrest without warrant granted to officers under s. 495(2) of the Criminal Code. The difference between these two sections is that under the Criminal Code, these considerations must be taken into account prior to making an arrest, while under the POA, they must be considered after an arrest when deciding whether to release.

[73] Here Taylor argues none of the preconditions to his continued arrest were present so his arrest was arbitrary and unlawful and violated his s. 9 Charter right.

[74] Archi testified he was satisfied with the identification he received from Taylor, there was no further evidence in relation to the drive suspended to preserve, there was no concern about the repetition of the offence as the vehicle could be seized or towed or the keys taken from him to prevent him from driving it, and Taylor was a resident of Ontario.

[75] Although both Archi and Cozma were involved in the arrest of Taylor, it was Archi who made the decision to arrest and it was him who directed Cozma to do so.

[76] Archi stated he made the decision to arrest based primarily on officer safety concerns.

[77] What informed his concerns for his safety and the safety of others present, according to Archi was the fact Taylor initially ignored him and continued to stare straight ahead when asked for documentation. Further, when he retrieved the backpack, he immediately put it down in the wheel well, his legs in what seemed to Archi to be an attempt to conceal it, and when after placing the backpack like this he was asked if he had weapons, he again did not answer.

[78] Taylor argues that these purported safety concerns are not very compelling, and Archi is using officer safety to mask his real intent, which was to conduct a generalized criminal investigation. The non-response to the documents question could be due the vehicle being a rental and him thinking about where they were, the hesitation about weapons was not very long and it should not be considered unusual to put the backpack behind his legs as he did.

[79] The issue here is similar to that which Justice Moldaver addressed in R. v. Aucoin, 2012 SCC 66, at par 35. The issue here is not whether Archi had the authority to arrest, the issue is whether in all the circumstances, he was justified in doing so.

[80] Much of the focus in this case on this issue and the search issue to be addressed later in these reasons, focussed on whether the enumerated preconditions to continue an arrest pursuant to s. 149 of the POA or s. 495(2) of the Criminal Code existed.

[81] In my view to focus solely on the enumerated factors somewhat misses the mark. Those are a non-exhaustive list of factors to consider.

[82] I recognize that Justice Parry was no doubt correct in R. v. Brown, 2019 ONCJ 56, at par. 53 when he stated, “While that list may not be exhaustive, it is a good start - and likely describes almost every justifiable decision to arrest.”

[83] The key word in Justice Parry’s quote is “almost”. To the enumerated list I would add the authority to arrest or to continue an arrest would exist if there are legitimate concerns for officer safety.

[84] I also acknowledge that the resort to officer safety rationalizations has at times been used as a pretext to open the door to more invasive actions by the police. As well, at times these type of claims can be difficult to assess. What might be a cause of concern to one, might not be to another. Also, the lowering of the bar as to what constitutes a safety concern should be avoided, given the power that flows to police, in terms of pat downs and other searches that flow from an arrest.

[85] However, I find that is not the case here. I find Archi’s resort to officer safety concerns to justify his arrest of Taylor was reasonable in the circumstances.

[86] In addition to the factors he listed, sight cannot be lost of the other issues here. The stop took place late at night, was in an area of the city that had been the subject of recent complaints about criminal activity and, in particular from a residence where police had attended on prior occasions for weapon and drug related calls. As well, there were two other people still in the vehicle. This was still a fluid investigation, with other things happening at the same time. As Cozma noted, he was still dealing with Taylor at the cruiser, less than two minutes after his arrest when the conductive energy device was found.

[87] The factors cited by Archi have to be viewed in their entirety not individually then discounted one by one. When that is done, with all the factors kept in mind, his decision to arrest for officer safety was objectively reasonable.

[88] The courts have a legitimate role in assessing police actions but should be cautious about second guessing police in circumstances such as this (See Aucoin, supra, par. 40).

[89] For these reasons, I find that the decision to arrest Taylor was a proper exercise of his discretion by Archi and was therefore lawful. This alleged Charter breach is unfounded.

Issue 2 – The Search of the Backpack

[90] Taylor has alleged that when the police searched the backpack, they breached his s. 8 Charter right to be free from an unreasonable search or seizure.

[91] He argues the search was unlawful because it was not done incident to a valid arrest or, even if the arrest is found to be valid, the search was not done for a valid purpose connected to the arrest.

[92] The power of police to search incident to a lawful arrest has long been recognized. It does not require reasonable and probable grounds beyond the grounds sufficient to support the lawful arrest. It is a discretionary power. The police do not have to search incident to arrest, but if they do, it must be for a valid purpose.

[93] This was succinctly summarized by Justice L'Heureux-Dubé in Cloutier v. Langlois, [1990] 1 S.C.R. 158, at par. 49 as “the police have a power to search a lawfully arrested person and to seize anything in his or her possession or immediate surroundings to guarantee the safety of the police and the accused, prevent the prisoner's escape or provide evidence against him.” See also: R. v. Caslake, [1998] 1 S.C.R. 51 and R. v. Fearon, 2014 SCC 77.

[94] Since I have already held the arrest was valid, the argument that the search as not done pursuant to a valid arrest fails.

[95] That leaves the argument that it was not done for a purpose truly incident to Taylor’s arrest.

[96] In this regard Taylor again points to the enumerated factors in s. 149 of the POA and s. 495(2) of the Criminal Code to demonstrate there was no valid reason for the police to search the backpack.

[97] The police were satisfied with Taylor’s identity and, there was no reason to search the backpack for evidence of the drive suspended offence he was arrested for.

[98] Also, he was handcuffed and in the control of Cozma so he could not access the backpack or its contents to utilize anything within it to make his escape or put the safety of the officers in jeopardy.

[99] Archi testified to a twofold basis for the search. He had to search the backpack as it was policy and good practice to search the backpack to document its contents as it was going to be taken into custody with Taylor. Also though, the search was conducted for safety purposes, to ensure there was nothing in it that could hurt police or Taylor or anyone.

[100] I need not decide if the inventory type search relied on by Archi was valid as I am satisfied that the other basis upon which he searched the backpack was valid, that being for officer safety.

[101] My reason for this are the same as my reasons for finding that the arrest was valid. The entire constellation of factors present and known to Archi at the time gave him a valid basis to search the backpack.

[102] It was late at night in a part of the city where criminal activity had been a problem, and there were two other persons in the vehicle at the time. The investigation was still fluid and unfolding.

[103] Added to this was Taylor’s behaviour when interacting with Archi. The hesitation when asked for documents, and especially the manner in which he handled the backpack which prompted Archi to ask about weapons, which again elicited a delayed response by Taylor.

[104] Given this cumulative constellation of factors, the decision to search the backpack for officer safety purposes fell well within the constitutionally permitted parameters as set out by Justice L'Heureux-Dubé in Cloutier above and the cases that followed.

[105] For these reasons I find the search of the backpack was a valid search incident to a lawful arrest.

[106] As such, this alleged Charter breach is also unfounded.

Issue 3 – Section 24(2)

[107] Given I have found Taylor’s Charter rights were not breached, it is not necessary to consider if he was entitled to a remedy pursuant to s. 24(2) of the Charter.

Issue 4 – Was Taylor in Possession of the Controlled Substances

[108] The controlled substances in this case were located in the backpack that was searched incident to Taylor’s arrest.

[109] In order to prove he was in possession of them, I must be satisfied beyond a reasonable doubt that he had knowledge and control of them.

[110] I am satisfied the Crown has proven Taylor was in possession of the substances.

[111] First, Taylor was in the vehicle with the backpack and he was in close enough proximity to it when he was asked for identification, he was able to reach for the bag in the centre console area and retrieve it.

[112] Second, once he retrieved it, he placed it on the floor of the vehicle behind his legs. This points both toward control of the backpack but in trying to conceal it from view like this, also points to his knowledge of what was inside.

[113] Third, Taylor opened the backpack and from inside he retrieved his wallet which contained his identification. This as well, points to a direct connection to him and the backpack.

[114] Fourth, immediately upon retrieving his wallet, he closed the backpack up again. This this again points to a level of control and also a desire to conceal its contents which points to his knowledge of the contents.

[115] Fifth, when Archi opened the backpack, he immediately noticed a large quantity of crystal methamphetamine inside. Two things can be drawn from this, the first is that anyone who opened the bag and looked inside would immediately know it contained drugs and, second it is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the backpack (See: R. v. Bains, 2015 ONCA 677, at paragraphs 145 and 157).

[116] The only reasonable inference available on all these factors is that Taylor was in possession of the backpack and its contents and knew of the controlled substances in it.

[117] As such, I am satisfied the Crown has proven beyond a reasonable doubt Taylor was in possession of the drugs.

Conclusion

[118] Having found no breaches of Taylor’s Charter protected rights, the controlled substances seized are admissible at the trial herein.

[119] I am also satisfied that Taylor was in possession of the controlled substance. As a result, findings of guilt will be made on the four counts of possession of a controlled substance for the purpose of trafficking.

[120] Finally, a finding of guilt will also be made on the charge of breach probation. Possession of the controlled substance for the purposes of trafficking, means Taylor was not keeping the peace and being of good behaviour as required by his probation order.

Released: May 16, 2023 Signed: Justice Robert S. Gee