ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-40000765-0000
DATE: 20120316

BETWEEN:

Her Majesty the Queen

Melisa Montemurro for the Crown

• and -

Delroy Mattison

Reid Rusonik for the Accused, Delroy Mattison

Accused

HEARD: March 12, 13, 14, 2012

BACKHOUSE, J.:

Ruling on Section 8 and 9 of the Charter delivered March 16, 2012

Overview

[ 1 ] Delroy Mattison is charged with possessing a firearm and ammunition contrary to s.95(1) of the Criminal Code . He seeks to exclude evidence of a loaded firearm found in the trunk of the vehicle he was driving on the basis that his detention was arbitrary and the search of his vehicle unreasonable, contrary to sections 9 and 8 of the Charter . He contends that the admission of the evidence would bring the administration of justice into disrepute.

[ 2 ] Officers Shen and Tremblay of the Toronto Police Service’s T.A.V.I.S’ unit claim to have observed Mr. Mattison operating a cell phone as he drove a motor vehicle in violation of the Highway Traffic Act and detained him as a result. Although Officer Tremblay testified that he saw an Iphone in the vehicle, no cell phone was seized. Mr. Mattison testified that he had left his cell phone at home that day. He was unable to produce his driver’s license, insurance card or ownership for the vehicle. The officers then searched the vehicle and seized a loaded firearm and ammunition from the trunk. It is submitted on behalf of Mr. Mattison that the officers searched his vehicle without any reasonable grounds for believing it contained contraband and are now falsely attempting to constitutionally justify the search as being an inventory search prior to towing the vehicle as a result of the failure to produce proof of insurance.

[ 3 ] The officers testified that when Mr. Mattison was unable to produce his driver’s license, insurance card or ownership for the vehicle, they decided to impound his vehicle. It is conceded that the “inventory search” which they then conducted was not authorized by law. However, the Crown submits that the loaded firearm seized from the trunk should be admitted pursuant to section 24(2) of the Charter .

[ 4 ] The Crown and defence agree that the evidence of the firearm and ammunition should be excluded under s.24(2) of the Charter only if I find that the police officers were untruthful about their reason for stopping Mr. Mattison or if I find that they did not reasonably believe that the vehicle was uninsured and were conducting an inventory search prior to towing the vehicle rather than searching for contraband.

Evidence of Delroy Mattison

[ 5 ] Mr. Mattison testified as follows. On the day of his arrest, his mother had come to his Keele Street apartment in Toronto at approximately 10:40 a.m. so that he could drive her to work and use her car for the day. He brought his Iphone and Apple charger when he got into his mother’s car, a 2003 black Chrysler Intrepid. His mother gave him the documents for her vehicle which he put into his pocket. He went to the Ministry of Transportation to see about renewing the registration for the vehicle he primarily drove which was a blue 2002 Chrysler Intrepid, also registered in his mother’s name. He left the Ministry of Transportation office with the vehicle license plate renewal application for the vehicle he primarily drove dated July 18, 2011. He had a number of parking violations that he had to pay off before he could renew the license plate. He believes they told him the amount. The renewal application was filled out with the name of the insurance company, Chieftain Insurance, and policy number. This was the same insurance policy which insured his mother’s vehicle that he was driving for the day. He then returned to his apartment for an hour and a half to 2 hours.

[ 6 ] When Mr. Mattison next left his apartment, he was in a rush and left behind in his apartment his cell phone, wallet and the documents for the car he was driving. He took the firearm because he was supposed to go to Scarborough to meet up with Mike to conduct a drug transaction and return the gun. He took the licence renewal application because he had to go to a Ministry of Transportation Office where he could pay off the outstanding parking violations to obtain the license plate renewal.

[ 7 ] Mr. Mattison was travelling eastbound on Eglinton Avenue just east of the Allen Expressway when he was pulled over by an unmarked minivan. Two uniformed officers came to both sides of his vehicle. The Asian officer asked him for his driver’s license, his vehicle ownership and insurance. He asked why he had been stopped. He was not given an answer. He gave the officer his name and birthdate. The officer misheard his birthdate as September instead of what Mr. Mattison said which was December. After returning to the van, the Asian officer came back to Mr. Mattison and said there was no driver’s license. He told the officer that the correct month of his birth was December. He told the officers that he was driving his mother’s vehicle, that it was insured and that he had a valid driver’s license . He told them the insurance was the same as on the vehicle license plate renewal application which was in the car (and was photographed on the front passenger seat after the car was impounded). Both officers returned to the minivan. The white officer then returned and asked him his height and weight. He asked why he was being asked. He was told to shut off the vehicle and step out. The white officer then conducted a pat down search. The Asian officer then signalled to him to come to the minivan where he showed him 3 tickets for failing to produce a driver’s license, failing to produce ownership and failing to produce insurance. There was no mention of driving with a cell phone in his hand. There was no cell phone in the vehicle. The Asian officer said he was going to finish writing up the tickets and then he was free to go. The white officer said he was going to search the vehicle. Mr. Mattison was not given an opportunity to remove valuables. He asked why the vehicle was being searched. The white officer did not acknowledge his question. He saw the trunk pop open. He saw the white officer dump everything out of the bag in the trunk and find the gun. Mr. Mattison panicked and ran. A chase ensued and Mr. Mattison was arrested.

[ 8 ] Mr. Mattison has been in jail since he was arrested on July 18, 2011. The last time he saw his Iphone was in his apartment on July 18, 2011. It was entered as an exhibit by him at trial. The last outgoing call was at 12:58 p.m. on July 18, 2011 which he identified as a call he made to a friend just before he left his apartment. Eleven calls were made to the phone between 1:24 p.m. and 2:01 p.m. on July 18, 2011 which were not answered. Seven of these unanswered calls were from Mike’s phone, the person he was planning to meet in Scarborough that day. There was no further activity to the phone thereafter which he testified was likely due to the battery going dead because he had forgotten to charge it the night before.

[ 9 ] Mr. Mattison was cross-examined about prior occasions in 2011 when he had been stopped by the police while driving. On February 18 th , 2011, he was stopped while driving the blue 2002 Chrysler Intrepid and told police that he lived at 76 Peachtree, Brampton , his mother’s address. The cell phone number he gave to the police at that time was 647-210-8679. On March 19, 2011, he was stopped while driving his sister’s 2004 Mazda. He gave his mother’s address at 76 Peachtree, her home phone number and cellphone number 647-210-0493. He testified that this was his mailing address and he had a bedroom there. On April 13, 2011 he was stopped while driving the blue 2002 Chrysler Intrepid. He gave his mother’s address at 76 Peachtree, her home phone number and cellphone number 647-210-0493. On July 16, 2011, he was stopped while driving his sister’s 2004 Mazda and gave 280 Park Street , Apt.109, Windsor as his address which was the address on his driver’s license at that time. He said that he had not lived in Windsor since 2009 but it was cheaper to insure the car with a Windsor address. He did not use more than one cellphone at a time but might have had a cellphone number on a phone for which he no longer bought time.

[ 10 ] Mr. Mattison has a criminal record for obstructing a police officer, robbery with a firearm and fail to comply with conditions of an undertaking.

Officer Shin’s Evidence

[12] Officer Shin testified as follows. On July 18, 2011, Officer Tremblay and he were working for T.A.V.I.S. patrolling 13 Division in an unmarked minivan. He was the passenger and Officer Tremblay was the driver. They were both in uniform. At 1:59 p.m., they were driving westbound on Eglinton Avenue. As they were passing a vehicle travelling eastbound, he observed the driver with an I phone in his right hand held at chest level. The same time as he observed the driver with the cellphone, he observed that the driver was Black. The van was higher up than the other vehicle and traffic was pretty slow so he had a good opportunity to observe. Officer Tremblay made a u turn and they pulled the other vehicle over which was a 2003 4 door black Chrysler Intrepid. They called in the license plate and found out that the registered owner was Sonia Thompson at 76 Peachleaf, Brampton.

[13] Both officers came to either door of the Chrysler. Officer Shin stood at the passenger side of the vehicle and stated to the driver that he was using a communications device while driving. He asked for the driver’s documents. The driver had no documentation. The driver verbally identified himself as Delroy Mattison with a birthdate of September 10, 1985. The driver did not draw his attention to a Ministry of Transportation vehicle license plate renewal application with the insurance information on it. He asked if the driver had any expired insurance documents but he had nothing. The officers went back to the van. There was no driver’s license hit for Delroy Mattison for September 10, 1985. The driver corrected him on the birthdate, being December 10, 1985. There was a driver’s license for that name and birthdate with a Windsor, Ontario address.

[14] At the preliminary inquiry, Officer Shin testified that he intended to issue Provincial Offence tickets for not having a license, ownership card and insurance card but did not have time to do so. When he was asked on cross-examination at the preliminary inquiry why he did not include the communication device infraction, he said that he had forgotten to mention that.

[15] Officer Shin made the decision that the vehicle should be impounded because the driver could not produce any documents and directed Officer Tremblay to search the vehicle. The driver kept approaching Officer Tremblay and Officer Shin had to tell him twice to keep away for officer safety reasons. He described this as alarming behavior. He did not get out of the vehicle on either occasion and this behavour was not included in his notes. When Officer Tremblay found the gun in the trunk, he yelled “gun” and the driver took off. He was caught with the assistance of an off duty police officer and arrested at 2:15 p.m. Mr. Mattison was turned over to Officers Metzker and Kara and taken to 13 Division. Two other officers arrived to assist in securing the vehicle and towing it. Officer Shin went back to the station to assist with the paperwork and had no further dealings with Mr. Mattison.

[16] Officer Shin did not see the Iphone again after seeing it when the 2 vehicles were passing each other and did not recall asking Mr. Mattison for it. He did not prepare a 208 card on Mr. Mattison.

[17] He did not start to fill out Provincial Offence Tickets. His Provincial Offence Ticket book was entered as an exhibit. The tickets are in triplicate and are numbered in sequential order. Five of the numbered tickets were not in the book. He testified that sometimes officers forgot their POT books and asked another officer to give them some. He gave three to Officer Chakal. Officer Shin did not know if or to whom he gave any other tickets. He testified that he received a message that someone had taken his POT book while he was on leave and when he received it back, it was out of sequential order. He understood that it was in regard to this case.

Evidence of Officer Chakal

[18] Officer Chakal was called to confirm Officer Shin’s evidence that he had given him 3 Provincial Offence Tickets from his book. He testified that on April 9, 2011, he put out a call over the radio for Provincial Offence Tickets because he did not have his book with him. Officer Shin responded. Officer Chakal produced his POT book which fit in his suit pocket. It contained copies of 2 POT tickets that he had received from Officer Shin and that he in turn had issued for HTA infractions. The numbers matched 2 of the missing tickets in Officer Shin’s POT book(4933308A and 4933309A). Officer Chakal testified that Officer Shin may have given him a third POT in case he spoiled one. The spoiled one would have been deposited into a box. Officer Chakal testified that it appeared that Officer Shin gave him tickets out of sequential order because ticket 4933310A was issued by Officer Shin before Officer Chakal put the call out for Provincial Offence tickets.

Evidence of Officer Tremblay

[19] Officer Tremblay testified as follows. He observed the driver of a black Chrysler with a cellphone in his right hand looking down into his lap at 2:02 p.m. as their van travelling westbound passed the other vehicle travelling eastbound. At the same time, he saw that the person was Black. He made a u turn and pulled the driver over. He could not recall if he told Officer Shin why he wanted to pull the driver over. He could not remember what Officer Shin said to the driver. The driver had no identification or vehicle documents. He verbally identified himself as Delroy Mattison with a birthdate of 1985/09/10. There was no driver’s license on file. Officer Shin advised that the vehicle would be towed for no insurance and instructed him to start an inventory to search the vehicle. He did not think there was any way to verify from the cruiser if someone has insurance.

[20] Officer Tremblay conducted the inventory search. He did not take notes as he conducted his search but relied on his memory. He saw an Iphone 4 on the front passenger seat, an Apple charger plugged into the lighter and when he went into the trunk, he found ammunition rolled up in a sock and a gun inside a plastic bag. When he later was making his notes, he noted these items.

[21] In his examination in chief, Officer Tremblay testified that he did not seize the phone and he said that when he went to the detective’s office, there was no mention of seizing the phone. On cross-examination, he testified that he meant to convey that “I believe we asked the detective if they wanted the phone seized and they said no.” He did not know the name of the detective and said that he went himself and did not remember if Officer Shin came. He then testified that he was asked yesterday by the Crown (referring to Ms. Montemurro) what had happened to the cellphone. He did not recall if he told Ms. Montemurro that he or they had asked the detective about seizing the phone and they said no.

[22] Ms. Montemurro advised the court that she had not been told this.

[23] Officer Tremblay did not recall if Officer Shin asked Mr. Mattison where his cellphone was or whether he told Mr. Mattison that he had been stopped for a communications device infraction.

[24] In his examination in chief, Officer Tremblay did not recall filling out a 208 card or field information card on Mr. Mattison, used for collecting information. In cross-examination, the Field Information Report (“FIR”) disclosed by the Crown was produced to him which is the product of the 208 card or field information card. The officers on the FIR are identified as Shin and Tremblay. The date and time was 2011.07.18 at 14:02. The nature of contact was “General Investigation”. The Circumstances were “Vehicle Stop-ON FILE”. Mr. Mattison was identified including his height, weight and address. He testified that possibly both officers participated in filling out the card. He acknowledged that officers could not stop a car for the purpose of filling out a 208 card.

[25] Officer Tremblay looked at the papers on the front passenger seat when he was conducting his search but as they were not valuable, he did not pay attention to them.

[26] The Impounded or Held Vehicle Report had a box to fill in for “List Property Found/Visible in Vehicle”. It was completed with “Nothing of value in front (firearm and ammunition in trunk)”.

[27] Mr. Mattison’s Record of Arrest had a box for “Prisoner’s Property Taken”. Cash, 1 earring and drawstring laces were the only items identified. Officer Tremblay confirmed that when prisoners go into custody, they are not allowed to take cellphones. He did not recall giving Mr. Mattison an opportunity to remove valuables or his cellphone before conducting the search.

Agreed Statement of Facts

[28] Police Constable Osman Haroon (9879) received a radio call at 2:15 pm on July 18, 2011 to attend the location of Eglinton Avenue West and Allen Road to assist officers Shin and Tremblay. He arrived on scene at 2:20 pm and requested a departmental tow shortly thereafter.

P/C Haroon filled out an “Impounded or Held Vehicle Report” on July 18, 2011. He did not search the car before preparing the report, but did a visual inspection of the interior of the motor vehicle from the outside.

The tow truck arrived on scene at 2:55 pm and the Black Intrepid bearing Ontario marker ASTS 924 was then towed to Forensic Identification Services (FIS) garage located at 2050 Jane Street . The Black Intrepid was towed using the hoist method which means that the front end of the car was raised to an angle of approximately 35 degrees.

Detective Constable Luke Ochmanek (9455) prepared a telewarrant to search the motor vehicle Mr. Mattison was driving on July 18, 2011. Once the telewarrant was granted, D/C Ochmanek attended the FIS garage to execute the warrant. The warrant was executed between 9:31 and 9:42 pm on July 18, 2011. During the execution of the warrant, D/C Ochmanek seized a .357 Magnum Smith & Wesson stainless steel revolver and 31 live rounds of .357 ammunition and 3 live rounds of .38 special ammunition from the trunk of the Black Intrepid.

D/C Ochmanek took the photographs that were entered as Exhibit 2 in these proceedings on July 18, 2011 at FIS when he was executing the warrant.

Evidence of Officer Ochmanek

[29] Officer Ochmanek testified as follows on his examination in chief. He conducted a cursory search. He looked at the seats and the floor. He did not go into the crevices of the seats, look under the seats or go into the glove compartment. On cross-examination, he acknowledged that the “one plus one rule” was operating procedure which meant where one gun is found, presume that another will be found until all the places a second gun could be are eliminated. In his notebook he had stated “Searched vehicle for further evidence. Negative results.” On re-examination, he stated that he was looking for evidence of another firearm or ammunition.

The Law relevant to the detention and search

[30] Section 9 of the Canadian Charter of Rights and Freedoms provides:

9. Everyone has the right not to be arbitrarily detained or imprisoned.

[31] Section 8 of the Charter states:

8. Everyone has the right to be secure against unreasonable search and seizure.

[32] Mr. Mattison has the burden of establishing on a balance of probabilities that there was a breach of Section 9 of the Charter . Because the search was warrantless, the Crown has the burden of establishing that the search was not in breach of Section 8.

Submissions

[33] The defence submits that there were no reasonable grounds to either detain Mr. Mattison or search the vehicle he was driving. The defence further submits that both the police claims of having seen him holding a cellular telephone in his hand while driving and that the vehicle he was driving was searched because it was going to be impounded for lack of insurance were ex post facto fabrications concocted to provide a constitutional justification for his detention and search.

[34] The Crown submits that the only way there is a section 9 violation is if the court finds that the officers used the ruse or pretext of the cellphone to justify stopping Mr. Mattison. The Crown submits that a finding that the police officers were not truthful regarding the reason they stopped Mr. Mattison is tantamount to a finding of racial profiling. The Crown further submits that the only way there is a section 8 violation is if the officers did not reasonably believe that the vehicle was uninsured and searched for contraband rather than conducting an inventory search prior to impounding the vehicle.

[35] The Crown and defence agree that the evidence of the firearm and ammunition should be excluded under s.24(2) of the Charter if I find that the police officers were untruthful about their reason for stopping Mr. Mattison or if I find that they did not reasonably believe that the vehicle was uninsured and were searching for contraband rather than conducting an inventory search prior to towing the vehicle.

Analysis and Findings

[36] I find on a balance of probabilities that Officers Shin and Tremblay were untruthful about seeing Mr. Mattison using a cellphone when they drove by him and that Officer Tremblay was untruthful about seeing a cellphone in the vehicle when he conducted a search. My reasons are as follows:

(a) No cellphone was seized from Mr. Mattison or his vehicle. This is confirmed by the Impounded or Held Vehicle Report which stated that nothing of value was found inside the car, the Record of Arrest which did not record a cellphone and the pictures taken of the impounded vehicle which did not show a cellphone.

(b) The vehicle was sealed at the scene. Officer Ochmanek’s claim that he did not search under the seats or in the crevices of the seats when searching Mr. Mattison’s impounded car is incredible. I reject the Crown’s submission that the most Officer Ochmanek can be faulted for was not searching thoroughly. One gun and ammunition had already been found in the trunk of the vehicle. I find that he would have conducted a thorough search and that if a cellphone had moved or fallen from the passenger seat where Officer Tremblay ostensibly saw it, Officer Ochmanek would have found it.

(c) I cannot agree with the Crown’s submission that the fact that Officer Tremblay said he saw an Iphone 4 in the vehicle and the cellphone produced by Mr. Mattison was an Iphone 4, lends credence to the officers’ evidence. Officer Tremblay was familiar with Iphones. I find that what he saw in Mr. Mattison’s vehicle was a charger for an Iphone and not an Iphone and that he recorded in his notes having seen an Iphone 4, a common kind of Iphone, to justify Mr. Mattison’s detention.

(d) The record of calls on Mr. Mattison’s Iphone (Exhibit 1) is consistent with his evidence that he left the phone at his apartment when he departed around 1 p.m. On July 18, 2011, there were 11 unanswered calls made to the phone between 1:24 p.m. and 2:01 p.m.

(e) Officer Shin said he saw the phone held out in front of Mr. Mattison at chest height while Officer Tremblay said he saw Mr. Mattison looking down into his lap. Because both officers testified that they made their observation that Mr. Mattison was using a cellphone while the 2 vehicles passed one another, one would have expected that they both would have seen the cellphone held in the same position.

(f) Officer Shin said that he observed a driver with an I phone in his right hand held at chest level as the 2 vehicles passed in opposite directions. It is improbable that he could identify the type of cellphone from where he was sitting in the passenger seat, across the driver and door of the van into the other vehicle.

(g) Officer Tremblay said he saw the celllphone in Mr. Mattison’s vehicle. Officer Shin did not. Officer Shin was the one talking to Mr. Mattison. The ostensible reason for stopping Mr. Mattison was to give him a ticket for the communication device infraction. As Officer Shin did not see the cellphone in the vehicle, one would have expected him to ask about it, but he did not recall doing this. When the officers first approached Mr. Mattison’s vehicle, the officers did not bring a Provincial Offences Act ticketbook but a 208 card or field information report for gathering information. Officer Shin testified that the POT book will not fit into the pocket of their uniform. This was contradicted by Officer Chakal who pulled his POT book out of his suitpocket.

(h) At the preliminary hearing, Officer Shin testified that he intended to issue tickets to Mr. Mattison for not having his driver’s license, ownership card and insurance card but failed to include in this list the communication device infraction until this was raised in cross-examination.

(i) Officer Tremblay had no memory and no note of what Officer Shin said to Mr. Mattison about the cellphone when he was pulled over or any response from Mr. Mattison.

(j) Both officers were reluctant to acknowledge playing any part in filling out the 208 card which was clearly filled out by one or both of them. Because the time shown on the Field Information Report of 2:02 p.m. was when the officers first stopped Mr. Mattison, one would expect that the “nature of contact” would reference the cellphone infraction or the Highway Traffic Act rather than what was recorded which was “general investigation” as the “nature of contact” and “vehicle stop” as the “circumstances”. Neither officer had a satisfactory explanation for this.

(k) Both officers acknowledged that it was their practice to offer a person whose vehicle was being impounded an opportunity to first remove valuables. Yet neither offered Mr. Mattison the opportunity to remove his cellphone.

(l) Both officers were experienced officers. Both were visibly nervous when they testified. Paper shook in their hands. This is not the norm in my experience when professional witnesses testify truthfully.

(m) There was other testimony that caused me to conclude that neither officer was a truthful witnesses. Both officers testified that Mr. Mattison gave a false birth month of September initially and would not concede that they may have misheard him giving the correct month, December. Yet Officer Shin used the words: “he corrected me” when he approached Mr. Mattison for the second time, suggesting by his choice of words that it was the officer’s error (although he specifically denied this). Officer Tremblay’s evidence that “we asked the detective if they wanted the phone seized and they said no” was not truthful. He could not remember who the detective was, when this was supposed to have occurred and whether he had told Crown counsel about this the day before which he had not.

(n) I also did not find Mr. Mattison to be credible. His claim that he never removed both hands from the steering wheel is not something that he would be able to remember and is not credible. His direct evidence was not consistent with his cross-examination. His story of going a second time that day to the Ministry of Transportation to pay his parking tickets when he knew the amount already but had insufficient funds on him makes no sense. He told the police when he was stopped on prior occasions that he was living in Windsor or Brampton when that was not true. I do not rely on his evidence unless it is confirmed by credible evidence.

[37] Having reached the conclusion that the officers were untruthful about Mr. Mattison being stopped for using a cellphone , it is unnecessary for me to reach a conclusion as to the reason he was stopped.

The Section 24(2) Analysis

[ 38] Given the Crown’s acknowledgement that she cannot ask for the evidence to be admitted under s.24(2) if the officers were untruthful about the cellphone, it is unnecessary for me to go through the Grant [1] analysis. The officers involved showed contempt for the rights protected by the Charter . This court must disassociate itself from the serious and deliberate state misconduct that led to the Charter violation in this case.

Conclusion

[39] I conclude that admitting the evidence would bring the administration of justice into disrepute and the evidence should be excluded.

[40] Having found that the evidence should be excluded under S.24(2) because of the Section 9 breach, it is unnecessary for me to make findings with respect to Section 8. Suffice to say that had I concluded that the stop of Mr. Mattison was proper, I would have found that the search of his vehicle was a technical breach only. In those circumstances, I would have exercised my discretion under S.24(2) and would have concluded that the evidence should not be excluded

Released March 16, 2012 _________________________________

Backhouse, J.

COURT FILE NO.: 11-40000765-0000

DATE: 20120316

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Her Majesty the Queen - and - Delray Mattison Ruling on Section 8 and 9 of the Charter delivered March,16, 2012 Backhouse J.

Released: March 16, 2012

[1] R. v. Grant , 2009 SCC 32 , [2009] S.C.J. No. 32