COURT FILE NO.: 11-30000389-0000 and 12-30000239-0000
DATE: 20120419
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KIRK STUBBS
Applicant
Lisa Will, for the Crown
Shauna Fattal, for the Applicant
HEARD: April 2, 3, 4, 10, 13, and 16, 2012
backhouse j.
reasons for decision Released April 19, 2012
[1] Mr. Stubbs is charged with a number of firearm offences. He alleges breaches of sections 8, 9 and 10 of the Charter and seeks to exclude the firearm and ammunition seized from a vehicle he was driving on November 30, 2010.
Evidence of Officer Jones
[2] Officer Jones testified as follows. He was on general patrol at 2:40 a.m. in Toronto at Kennedy Road, just north of Ellesmere, facing northbound, when he observed a green BMW make a sudden and erratic lane change across 2 lanes of traffic. He ran the license plate. The results of the CPIC search were that there was a “1066” warning which is a code used to alert officers of officer safety issues. Any interaction with the vehicle was to be done with caution because of potential firearms. Kirk Stubbs with a date of birth of January 22, 1977 was associated with the vehicle. Officer Jones called for backup. He did not tell the dispatcher of the Highway Traffic Act (“HTA”) infraction.
[3] Officer Jones followed the vehicle. The vehicle stopped 8 to 10 feet past the stop line at a traffic light at Progress Avenue. The vehicle turned right onto Progress and twice went into the left lane and back into the curb lane approaching Keller Street. Officer Jones activated his emergency lights on his police car and pulled the vehicle over.
[4] Officer Jones approached the driver’s window which was already down. Officer Jones stuck his head inside the vehicle and observed that the driver had bloodshot eyes. He asked him if he had had anything to drink. Mr. Stubbs said: “Yes, a couple. That’s all.” Officer Jones detected the odour of alcohol on Mr. Stubbs’ breath. He made the roadside demand. He read Mr. Stubbs the breath sample approved screening device demand from the back of his memo book which Mr. Stubbs said he understood. Officer Jones asked him for his driver’s licence. Mr. Stubbs said that he was suspended. Officer Jones advised him he was under arrest for driving while under suspension which Mr. Stubbs said he understood. Officer Jones read him his rights to counsel and Mr. Stubbs said he understood. Officer Jones asked Mr. Stubbs if he wanted to contact a lawyer. Mr. Stubbs responded by asking if he would be released that night. Officer Jones said he probably would. Mr. Stubbs did not respond to whether he wished to speak to counsel.
[5] While Officer Jones was dealing with Mr. Stubbs, Officers Woodyer and Machell each arrived in separate police vehicles, having responded to Officer Jones’ call for back up assistance. At the preliminary inquiry Officer Jones testified that he told the other officers of the CPIC results once they got there. At trial, Officer Jones testified that he did not tell the other officers of the results of the CPIC search because he was already talking to Mr. Stubbs when they arrived. Officer Jones did not tell the other officers when they arrived the reason he stopped Mr. Stubbs’ vehicle.
[6] When Officer Jones went to handcuff Mr. Stubbs, he could feel something under his jacket which Mr. Stubbs said was a bulletproof vest because he had been shot before. Approximately $3000 was in the outer pockets of his jacket. He was not handcuffed initially because he advised that he had recently had surgery to his arm. He was escorted to the police vehicle and sat with his feet out on the pavement where he provided a breath sample into the roadside screening device. The result was “fail.” At 2:50 a.m., Officer Jones advised Mr. Stubbs that he was under arrest for having over 80 mg. of alcohol /100 ml. blood and read him his rights to counsel again which he said he understood. Mr. Stubbs did not ask to speak to a lawyer at that time but again asked if he would be released that night. Officer Jones said he did not see why not. Mr. Stubbs asked if he had to go to the station. Officer Jones responded: “Yes.” Mr. Stubbs asked: “Where’s my car going to go?” Officer Jones recorded this in writing. He responded: “The pound at Markham and Finch.” Officer Jones had not administered the caution at this point. Defence counsel conceded the voluntariness of this statement.
[7] Officer Jones denied that when he first questioned Mr. Stubbs, he asked Mr. Stubbs where he was coming from or going to, whether he had any weapons or drugs in the vehicle or whether he was on bail. He only asked questions about alcohol consumption. No Highway Traffic Act tickets were issued to him.
[8] At 2:59 a.m., Officer Jones transported Mr. Stubbs to 41 Division for a breath test with Officer Woodyer following in his own vehicle. Officer Machell was left in charge of the impounded vehicle which was to be towed because it was in a live lane of traffic. As they were pulling into the station lot at 3:06 a.m., Officer Machell called and said that he had found a loaded handgun under the front seat of the vehicle. They had to wait then until 3:18 a.m. to get into the sallyport. Mr. Stubbs was paraded before the staff sergeant and stripsearched. At 3:38, Mr. Stubbs gave the contact number for his lawyer, Shauna Fattal, and Officer Jones left a message on her answering machine. At 3:50 a.m. at Mr. Stubb’s request, Officer Jones made 2 calls in an effort to contact Mr. Stubb’s girlfriend. At 3:58 a.m., Mr. Stubbs called Ms. Fattal and left his own message. At 4:01 a.m., a call was placed to duty counsel on Mr. Stubbs’ behalf. At 4:05 a.m., duty counsel called back and Mr. Stubbs was placed into a private phone booth and had a conversation with duty counsel. At 4:10 a.m., Mr. Stubbs was off the phone to duty counsel. At 4:13 a.m., 2 more attempts were made to contact Mr. Stubbs’ girlfriend. At 4:42 a.m., the breathalyzer was administered to Mr. Stubbs. The first reading was 80. At 5:02 a.m., the second reading was 68 so Mr. Stubbs was not charged with impaired. At 7 a.m., Mr. Stubbs was served with a 3 day suspension form. At 7:15 a.m., he was served with a notice of criminal charges.
Evidence of Officer Woodyer
[9] Officer Woodyer gave the following evidence. He responded to the radio call seeking backup for Officer Jones and arrived a minute or two later. He heard Officer Jones arrest Mr. Stubbs for driving under suspension. He observed Officer Jones make the breath demand and administer the breath test. He assisted in removing Mr. Stubbs’ bulletproof vest which Mr. Stubbs advised he was wearing for his protection. He found a large quantity of cash on him which was counted at the station and was approximately $2800. He observed that Mr. Stubbs smelt of alcohol. He had no specific information about Mr. Stubbs when he arrived at the scene. On cross-examination, when confronted with a document confirming that he had conducted a CPIC search at 2:41 a.m., he said that he had no recollection of that or of receiving the information that the vehicle was associated with a “1066”. He testified that he did not believe Officer Jones told him this and that he already had a heightened sense of awareness about officer safety from his observation that Mr. Stubbs was wearing a bulletproof vest.
Evidence of Officer Machell
[10] Officer Machell gave the following evidence. He responded to a call for backup at 2:41 a.m. in regard to a traffic stop of a vehicle made by Officer Jones. He arrived on scene after Officers Jones and Woodyer. He observed the roadside breath test being administered and at some point learned that Mr. Stubbs had failed. He observed Officer Jones arrest Mr. Stubbs, and conduct a patdown search. He observed that Mr. Stubbs was wearing a bulletproof vest while he was being handcuffed to the rear. Officers Jones and Woodyer left with Mr. Stubbs for 41 Division. He began to check the vehicle for items of value and any damage to the vehicle prior to it being towed to a private lot. It was necessary to tow the vehicle because it was in a live lane of traffic and Mr. Stubbs had been arrested. It is police policy to conduct an inventory search to make sure valuables are secured and the condition of the vehicle is noted prior to it being towed. He located a silver object with a wooden handle under the front passenger seat which he recognized as a handgun. He immediately stopped any further check of the vehicle and called Officer Jones by cellphone to report what he had located and that he would not be searching further. By 3:05 a.m., he had located the firearm. He cancelled the Williams contract towing that Officer Jones had requested and ordered Toronto Police towing which was required once a firearm was involved. Starting at 3:14 a.m., he conducted CPIC searches on the vehicle and Mr. Stubbs.
Evidence of Officer James
[11] Officer James gave the following evidence. He is a Scenes of Crime officer. He arrived at 41 Division to execute the search warrant at 11:35 a.m. He seized the fully loaded firearm from under the front passenger seat located above the floor between the mechanics of the seat and the bottom of the seat. He read Schedule A of the search warrant prior to commencing his work and made sure that it was signed by a Justice of the Peace and dated that day. He located a knife, a PetroCanada receipt for an oil change in Mr. Stubbs’ name and an empty prescription pill container for oxycotin in Mr. Stubbs’ name dated November 24, 2010. The container stated that it contained 50 tabs. The instructions were to take 1 to 2 tablets by mouth every 4 hours when needed.
[12] The affidavit of Terry Ann Duarte sworn January 7, 2011 deposes that there is no firearm certificate or license issued to Mr. Stubbs.
[13] It is conceded on behalf of Mr. Stubbs that the firearm seized was a restricted weapon capable of being discharged and that Mr. Stubbs had no licence or registration for it.
Evidence of Officer Verspeeten
[14] Officer Verspeeten testified that at at 6:04 a.m. on November 30, 2010, he sent an email to Mr. Stubbs’ counsel to advise that Mr. Stubbs was going to 1911 Eglinton Avenue East, Courtroom 412 at 10 a.m. At 8:08 a.m.,Officer Verspeeten provided the telephone to Mr. Stubbs to speak to his counsel
Evidence of Detective Digiovanni
[15] Detective Digiovanni testified that he prepared the Information to obtain the search warrant. The request for a telewarrant was declined so that it was necessary for him to wait until 1911 Eglin Avenue E. opened. The search warrant was signed at 9:25 a.m. on November 30, 2010. The search was conducted from 11:35 a.m. to 12:29 p.m. on November 30, 2010. He participated in searching the vehicle, after ensuring that the vehicle was first photographed by Forensics. He seized an arm brace and a welfare needs shelter receipt in the name of Mr. Stubbs. He left the garage where the vehicle was being searched at 12:29 p.m. and informed Mr. Stubbs that he was being charged with firearm offences. Mr. Stubbs was cooperative but did not want to say anything in regard to the charges.
Agreed Upon Evidence
[16] It is agreed that Officer Gendi stated in his notes that there was a possible connection between Mr. Stubbs and a homicide.
[17] It is further agreed that Mr. Errol Stubbs, Mr. Stubbs’ father, made a video statement where he stated that he gave the car key to Mr. Stubbs’ girlfriend when she was pregnant so that she could drive back and forth to school. He never saw his son drive the vehicle. It is 2 to 3 years since he has seen the vehicle. It was not Errol Stubbs’ handgun in the vehicle.
Evidence of Kirk Stubbs
[18] The evidence of Kirk Stubbs is as follows. At 4 p.m. on November 29, 2010, he went to the house of his friend, Shaggy, (real name Cliffinton Ford), now deceased. At 7 p.m., he asked if Shaggy could drive him to play poker. Shaggy said no so Mr. Stubbs asked him for the key to the BMW belonging to Mr. Stubbs’ father which Shaggy frequently drove. Mr. Stubbs had given Shaggy the key and Shaggy drove him wherever he wanted to go.
[19] In 2007, Mr. Stubbs’ father had lent the BMW to Mr. Stubbs’ then girlfriend, Kadeja James, because he knew that Mr. Stubbs did not have a licence. Ms. James was pregnant with his child and needed a car to get to school. Ms. James and Mr. Stubbs were living together at the time. Ms. James and Shaggy drove him to places he needed to go. Ms. James mainly drove the car. On cross-examination, he reluctantly acknowledged the driving licence record for Ms. James which showed that her driver’s licence had been suspended since 2005. He and Ms. James broke up in 2009. Mr. Stubbs acknowledged driving the vehicle himself approximately 3 times per month. Ms. James permitted her sister to drive the car. He testified: “One time my friend told me that he saw someone drive my car.” When Mr. Stubbs asked Ms. James about this, she said it was her boyfriend. He told her not to let her boyfriend drive it or his father would take it from her. The boyfriend had a criminal record and was associated with the Galloway boys. One of Shaggy’s brothers, the one with dredlocks, also drove the car. The hats in the vehicle were not Mr. Stubbs’ but belonged to Shaggy or his family. The knife found in the BMW belonged to Mr. Stubbs as did the documents. The clothing in the vehicle was not his except for the shoes. He made sure the vehicle had oil changes and that there was gas.
[20] At around 7 p.m. on November 30, 2010, he drove the BMW to a bar to play poker. He had 1 Guiness stout and ate some food. Before leaving, he had a second drink around 2 a.m. He took 1 oxycotin for pain early in the day before leaving home. He left the bar at around 2:30 a.m. He noticed the police vehicle stopped in the median lane as he was travelling northbound on Kennedy Road. He signalled and moved into the centre lane. He came to a stop at the light at Progress and Kennedy. He did not cross the line. The police officer pulled up right behind him. He put his signal on and made a right turn onto Progress. Five to 10 seconds after he turned, he noticed the police lights go on and he pulled over immediately and rolled down his window. He did not understand why he was being pulled over and Officer Jones did not say. Nothing was said about any traffic violations. Officer Jones asked his name, where he was coming from, where he was going and whether he had any drugs or weapons in the car. Officer Jones said that Mr. Stubbs had better tell him before he searched the car and found it. Officer Jones did not ask him if he had had anything to drink and he did not say that he had had a couple of drinks. He had Mr. Stubbs step outside the car for a breath test because he smelled alcohol. Officer Jones did not smell this right away. Officer Jones did not read the demand from the back of his notebook. Mr. Stubbs told him that his licence was suspended and Officer Jones put him under arrest for driving while suspended. Two other police vehicles arrived. Both officers went to the passenger side of Mr. Stubbs’ vehicle. They opened the door and looked inside with a flashlight.
[21] Mr. Stubbs was not handcuffed or searched initially. He took the breath test and Officer Jones told him he failed. He did not show him the results of the test and there is no way he could have failed. Officer Jones told him he was arrested for drinking and driving. He searched him and found the money in his jacket which he told Officer Jones he had won playing poker. Officer Jones said it was from selling drugs which Mr. Stubbs said he did not do. Mr. Stubbs was wearing a bulletproof vest underneath a rugby shirt and jacket which the officers found when they did their patdown search. He told the officers that the reason he was wearing a bulletproof vest was for his protection and that he had been shot before. He was shot at a bar on September 12, 2009 and spent 7 days in the hospital. He did not know by whom he had been shot but was afraid to go out of his house.
[22] Mr. Stubbs in his evidence in chief said that he was not given his right to counsel for either arrest. He asked to speak to a lawyer when they told him he was under arrest for over 80 and was told he could do so when they got to the station. On cross-examination, he contradicted himself and said that after he failed the breath test at the scene, he was given his rights to counsel.
[23] Mr. Stubbs was taken to the station at 3:05 a.m. and had to wait to get into the sallyport. When he was paraded, there was no mention of a firearm having been located. He was not told about the firearm until hours after his arrest. He was put into an interview room. Someone from Guns and Gangs came in and told him a gun had been found in the car. Another officer came in, said there was a gun in the car and showed him the search warrant. Mr. Stubbs denied that there was a gun or drugs in the car. Someone brought the phone in to enable him to speak to duty counsel. He testified that this was after he took the breathalyser test at the station. He had already been told about the gun in the car when he spoke to duty counsel. An hour or so later, he was given the phone to speak to his lawyer, Ms. Fattal. The door was not fully closed.
[24] Mr. Stubbs was not offered an opportunity to call someone to remove his vehicle such as his ex-girlfriend or Shaggy, both of whom he could have called. A tow truck had arrived at the scene before he was taken to the station. When he said to Officer Jones: “Where is my car going?”, he meant not that the car was his but that he wanted to be able to tell his father or Ms. James where to pick it up.
[25] Mr. Stubbs did not put the handgun under the seat and did not know who did. The gun was not Ms. James’ or his father’s.
Submissions of the Defence
Section 9
[26] The defence submits as follows.
[27] There must be an infraction under the Highway Traffic Act to form a legal basis to stop a vehicle. The alleged HTA infractions were a ruse to investigate Mr Stubbs’ vehicle for firearms and drugs as a result of information obtained from the CPIC search that the vehicle was associated with a code 1066. This is established by the fact that Officer Jones conducted his initial CPIC search at 2:39 a.m. and he testified that it was 2:40 a.m. when the vehicle came to his attention and he pulled it over. Mr. Stubbs was detained from the moment Officer Jones pulled up behind him and engaged his emergency equipment. Officer Jones called for back up before the occupant of the vehicle was even spoken to. The detention of Mr. Stubbs had nothing to do with any HTA infraction or impaired offence. This is established by the following:
Officer Jones did not say anything to Mr. Stubbs or anyone else about the alleged HTA infractions;
Officer Jones did not ask Mr. Stubbs for his driver’s license or documentation for the vehicle which is routine when stopping a vehicle under the HTA:
Officer Jones immediately started to ask Mr. Stubbs about his comings and goings and whether he had drugs or weapons in the vehicle.
It defies common sense that Mr. Stubbs who was driving without a driver’s licence and who was aware of the police car would do anything to draw the attention of the police.
Section 10
[28] Mr. Stubbs was not informed promptly of the reason for his detention despite his asking and was not told of his right to counsel upon detention. He was not provided with access to counsel until hours after his arrest notwithstanding the availability of his cellphone at the scene.
Section 8
[29] To call the search that was conducted an “inventory search” is an after the fact justification for a search that took place for contraband prior to the issuance of a search warrant.
Section 24(2)
[30] The Charter violations were of a serious nature. There was a blatant disregard for Mr. Stubbs’ fundamental rights. To admit the evidence would bring the administration of justice into disrepute.
Possession of the firearm
[31] Mr. Stubbs lacked the requisite knowledge and control to be found in possession of the firearm. Mr. Stubbs’ evidence that he was not the primary driver of the BMW should be accepted. Officer Machell’s evidence confirmed that the firearm could not be seen from the driver’s seat. There was no forensic evidence linking the firearm or ammunition to Mr. Stubbs. Mr. Stubbs’ evidence denying any knowledge of the firearm was not shaken on cross-examination and should be accepted. His testimony that he did not clean the car regularly and did not search under the seats was credible and consistent with the messy state of the vehicle.
Submissions of the Crown
Section 9
[32] It is submitted that notwithstanding inconsistencies in the officers’ evidence, it should be accepted that Mr. Stubbs was stopped for the reasons that Officer Jones gave. The known facts that Mr. Stubbs had been drinking and had taken medication lends credence to Officer Jones’ testimony of erratic driving. An inference can be drawn that if the alcohol Mr. Stubbs had in his system when he took the breathalyzer at 4:42 a.m. was 80 and at 5:06 a.m. was 60, it was likely over 80 at 2:40 a.m. when Officer Jones observed him driving.
Section 10(a)
[33] Officer Jones’ evidence should be accepted that he observed Mr. Stubbs’ bloodshot eyes, smelt alcohol on his breath and asked questions about what Mr. Stubbs had to drink. Both Officer Jones and Mr. Stubbs testified to Officer Jones asking Mr. Stubbs to get out of the car and take the breath test because Officer Jones smelled alcohol. Coupled with what Mr. Stubbs knew about his own drinking and driving, he knew why he was being detained. Almost immediately thereafter he told Officer Jones that his driver’s license was suspended and he was told that he was being arrested for driving without a license. There was no section 10(a) violation.
Section 10(b)
[34] Officer Jones’ evidence that he gave Mr. Stubbs his right to counsel in regard to both charges should be accepted. The delays in making the call to duty counsel and Mr. Stubbs’ counsel, Ms. Fattal, were not unreasonable, given the delay in getting into the sallyport and Mr. Stubbs’ request which was accommodated to reach his girlfriend by calling various phone numbers. The officers’ evidence should be accepted that Mr. Stubbs spoke to duty counsel at 4:05 a.m., prior to taking the breathalyzer test at the station.
Section 8
[35] It was open to the officer to stop Mr. Stubbs to investigate him with respect to the HTA infractions. When Officer Jones made his observations about Mr. Stubbs’ impairment, the matter moved into an investigation under the Criminal Code for impaired driving. There was nothing nefarious about calling for back up when the CPIC search raised the issue of officer safety. Inventory searches have been approved by the courts and are commonly done where a vehicle is to be impounded. Even if this was a breach, it was a technical breach. When the search resulted in the firearm being found, the search was discontinued and a warrant obtained. There was no section 8 breach.
Possession of the firearm
[36] The facts that Mr. Stubbs was afraid of being shot, was wearing a bulletproof vest and had a lot of cash on him all support that it was his firearm. The firearm was readily accessible to the occupant of the front seat of the vehicle with the handle of the gun facing front. There was evidence to support that Mr. Stubbs used the vehicle more than he was prepared to admit. He was the driver and sole occupant on November 30, 2010.
Analysis and findings
[37] The burden of proof is on Mr. Stubbs on a balance of probabilities with respect to whether there has been a Charter breach and if so, whether the evidence should be excluded under Section 24(2) of the Charter.
Credibility of the Officers
[38] There were inconsistencies between Officer Jones’ evidence at trial and at the preliminary inquiry. For example, he initially could not recall whether he called for backup. It was only after his evidence at the preliminary inquiry was put to him that he acknowledged that he had called for back up.
[39] Officer Jones was reluctant to acknowledge that prior to stopping the BMW, he conducted a CPIC check on the license plate and was aware that there was a 1066 warning in regard to the vehicle and Mr. Stubbs, a fact clearly established by the CPIC report. The other officers who testified were also reluctant to acknowledge that they were aware of the 1066 warning.
[40] While Officer Jones’ evidence was unreliable on this point and on some other minor points, I nevertheless found him generally to be a truthful witness and reliable on the material parts of his evidence for the following reasons:
His evidence that he observed Mr. Stubbs driving erratically and stopped him because of this is consistent with Mr. Stubbs’ consumption of alcohol and pain medication.
Officer Jones noted the details of the HTA infractions in his notebook.
The fact that he did not inform Mr. Stubbs, the dispatcher or other officers about the HTA infractions can be explained by the investigation quickly turning into a Criminal Code investigation after he observed Mr. Stubbs’ bloodshot eyes and odour of alcohol.
Officer Jones’ evidence that Mr. Stubbs failed the breath sample screening device demand is consistent with Mr. Stubbs’ results on the breathalyser some 2 hours later.
I do not agree with defence counsel’s submission that Officer Jones’ evidence that he did not tell the other officers who attended as backup about the code 1066 upon their arrival was completely unbelievable. I find that Officer Woodyer had conducted his own CPIC search and was aware of the code 1066 when he arrived at the scene and that the information had gone out over the radio so that Officer Machell was also aware of it when he arrived.
[41] There were inconsistencies between the officers as to the exact time the firearm was discovered by a few minutes. I do not consider this material and it is to be expected in a matter of this kind where there are a number of officers testifying to the same events.
[42] There were also inconsistencies between the officers in regard to when it was discovered that Mr. Stubbs was wearing a bulletproof vest. Officer Woodyer testified that Mr. Stubbs’ jacket was not zipped all the way up and that he could see the bulletproof vest underneath. Officers Jones and Machell testified that the bulletproof vest was only discovered when the patdown search was conducted which I accept.
[43] I do not agree with defence counsel’s submission that it was significant that Detective DiGiovanni testified that Crown counsel advised all of the officers that Mr. Stubbs had brought a number of Charter applications while none of the other officers, according to their testimony, were aware of the Charter applications. Detective Digiovanni’s evidence was that Crown counsel mentioned that there were Charter applications being brought in the presence of the other officers. As the officer in charge, it is likely that he paid more attention to this than the other officers did.
[44] I am satisfied that the officers acted in good faith throughout.
Credibility of Mr. Stubbs
[45] In reaching a conclusion in regard to Mr. Stubbs’ credibility, I disregarded his criminal record. There are no convictions for dishonesty and the last conviction was in the year 2000.
[46] I did not find Mr. Stubbs to be a credible witness. He first testified that he was not given his rights to counsel at the scene for either arrest. He then contradicted himself and said that he was given his rights to counsel after the impaired arrest.
[47] Mr. Stubbs testified that he had the breathalyser tests administered at the station before he talked to duty counsel. This was clearly wrong. The times Mr. Stubbs talked to counsel and the times the breath samples were subsequently taken were recorded in Officer Jones’ notebook and by the technician in the case of the breath samples and I accept them as correct.
[48] Mr. Stubbs’ evidence that he was playing poker for 7 hours at Pablo’s Jerk bar or that the $2800 in cash he had when he was arrested was from poker winnings is not credible.
[49] The explanation Mr. Stubbs gave for why his father gave the BMW to his then girlfriend and not to Mr. Stubbs was that Mr. Stubbs did not have a license. Yet it appears from the driving record for Ms. James that her license has been suspended since 2005. Ms. James may have been the primary driver of the vehicle when Mr. Stubbs and she were living together. However, they have not been together since 2009. There was a great deal of evidence to connect Mr. Stubbs to the vehicle and only Mr. Stubbs’ evidence as to others using the vehicle. Ms. James did not testify. I find that Mr. Stubbs was evasive and exaggerated Ms. James’ current use of the vehicle.
[50] Mr. Stubbs attempted to minimize his involvement with and control over the BMW. This was contradicted by the known facts. His father was the registered owner. Mr. Stubbs testified that he gave the car to Shaggy to drive and when Mr. Stubbs wanted to drive the car, he got the key from Shaggy. When he objected to Ms. James allowing her boyfriend to drive the car, he threatened her with removal of the car. The number of items in the car that belonged to him belied his minimal involvement with the car. So did his admission, in accordance with the oil change receipt in his name found in the vehicle, that he looked after oil changes and put gas in the car. His having been charged on 2 separate prior occasions with driving under suspension while driving this vehicle suggested that he was a much more regular driver than he was prepared to admit. Further, his testimony at trial when referring to the BMW as “my vehicle” contradicted his evidence that his ex girlfriend was the primary driver. While he had an explanation for why he referred to the vehicle as “my car” when speaking to Officer Jones, that he was concerned to find out where the vehicle was being taken so that his father or ex girlfriend could pick it up, this explanation had no application to his testimony at trial where he continued to refer to the vehicle as “my car”.
[51] Mr. Stubbs’ evidence of how much he had to drink and that there was no way he failed the roadside breath test was not credible. According to his evidence, he was in the bar from approximately 7 p.m until 2:30 a.m. He first testified that he had one beer. Later in his evidence he said that he had two beer. He attempted to explain this in cross-examination by saying that he had one beer when he arrived and one more beer just before he left. I found him evasive in regard to this testimony. His evidence that he did not commit any infraction of the HTA was not credible, given his alcohol consumption and his ingestion of pain medication which is not supposed to be taken with alcohol. The alcohol in his system two hours after he was first stopped was still sufficient to register 80. The prescription container for oxycotin found in the vehicle was dated 6 days before his arrest and the 50 oxycotin pills it had contained were all gone. I do not believe Mr. Stubbs’ evidence that he was certain that he took only 1 oxycotin that day because he had left the rest of the medication at home. This was belied by the empty pill container in the vehicle.
[52] Mr. Stubbs’ evidence was not credible that Officer Jones did not ask him how many drinks he had had after he smelled alcohol on him. Similarly, his evidence that he spontaneously volunteered that his license was suspended and that Officer Jones did not ask for his driver’s license is incredible.
[53] Mr. Stubbs’ evidence that the firearm was not his and that he did not know it was there was not credible and was inconsistent with the known facts. He was the driver and sole occupant of the vehicle in which the firearm was found. He had been shot and was sufficiently traumatized by that to be afraid to come out of his house. He was wearing a bulletproof vest. He had a large amount of cash on him. Mr. Stubbs’ efforts to suggest that the firearm had been placed in the vehicle by Ms. James’ boyfriend or Shaggy or someone in Shaggy’s family were not believable. Other judges have noted that a loaded firearm being left in a vehicle used by another person is not a likely scenario, given the value in a firearm, its potential discoverability by the person using the vehicle or someone else and the very significant consequences if the loaded firearm is discovered by the authorities.
Charter violations
Sections 8 and 9
[54] I find that Officer Jones observed Mr. Stubbs’ vehicle proceeding erratically. He ran the CPIC search, received the information that the vehicle was a code 1066 and called for back up. I reject defence counsel’s submission that it defies common sense that Mr. Stubbs would do anything to draw the attention of the police when his license was suspended. Mr. Stubbs may well not have been aware of his erratic driving, given his alcohol consumption. Contrary to his testimony, Mr. Stubbs may not have been aware of the police presence.
[55] Officer Jones stopped the vehicle. He saw that Mr. Stubbs had bloodshot eyes and smelled alcohol when he put his head inside the window. Mr. Stubbs said that he had had a couple of drinks. The officer administered a road-side test which Mr. Stubbs failed. The fact that Mr. Stubbs’ breathalyser results approximately 2 hours later confirmed alcohol in his system corroborates Officer Jones’ evidence which I accept that Mr. Stubbs was stopped for erratic driving. This is not a situation where there was no reason to stop Mr. Stubbs or where he was stopped only because of the results of the CPIC search. In my view, Mr. Stubbs was not arbitrarily detained and there was no breach of Section 9 of the Charter.
[56] Officer Jones asked for Mr. Stubbs’ driver’s license and Mr. Stubbs told him he was suspended. Mr. Stubbs was arrested for driving while suspended and driving over 80. The vehicle was impounded because it was in a live lane of traffic. An inventory search was conducted in accordance with Toronto Police Services policy. Upon discovering what appeared to be a firearm, the search was discontinued until a search warrant was obtained.
[57] Pursuant to Section 48(12) of the Highway Traffic Act, R.S.O.1990,c.H.8 as am., the police had the right to impound the vehicle because the driver failed the roadside test. The Ontario Court of Appeal has determined that the right to impound includes the right to inventory its contents. (R. v. Wint 2009 ONCA 52, [2009] O.J.No.212. The police may also have been looking for a gun as a result of the CPIC search “1066” warning. However, this did not render the search unlawful (R. v. Wint, supra at para.11, R v. Caprara (22006), 211 O.A.C.211 at para.8.) Accordingly, I find that there was no breach of Section 8 of the Charter.
[58] In my opinion the departmental policy requiring the inventory of the contents was lawful in the context of a statutory right to impound the vehicle. If the search was intended to be justified as a common law right incidental to arrest, there was no connection between the search and the offences for which he was arrested. (See R. v. Caslake 1998 CanLII 838 (SCC), [1998] S.C.J.No.3) However, as already noted, this case is governed by different principles because of the statutory right to impound the vehicle.
Section 10
[59] The investigation moved from a HTA investigation of driving infractions to driving without a license and impaired driving. Mr. Stubbs was informed promptly of the reasons for his arrest for driving while under suspension and over 80. He was advised of his rights to counsel. The delay in assisting Mr. Stubbs to speak to duty counsel was not unreasonable. When he was asked at the scene whether he wished to exercise his right to counsel, he responded with a question. There was a delay in getting into the sallyport because someone else was being paraded. In just under an hour from the time he was stopped, Mr. Stubbs gave the phone number for his counsel and a message was left. At his request, the next two calls that were placed on his behalf were to reach his girlfriend. A second message was left for his lawyer twenty minutes after the first message and three minutes later a call was placed to duty counsel on his behalf. According to Mr. Stubbs’ own evidence, he was aware that a firearm had been found in his vehicle prior to his discussion with duty counsel at 4:05 a.m. It was only after his discussion with duty counsel that the breathalyser tests were administered. I find no breach of section 10.
Determination on the Merits
[60] Counsel agree that the only issue in determining the merits is whether there is sufficient evidence to prove beyond a reasonable doubt that Mr. Stubbs was in possession of the firearm located in the vehicle.
[61] Section 4(3) of the Criminal Code sets out the definition of possession:
4(3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[62] The caselaw has clearly established that in order for Mr. Stubbs to be found in possession of the firearm, I must be satisfied that he had knowledge and control of the firearm.
[63] Mr. Stubbs was the driver and sole occupant of the vehicle in which the firearm was found on November 30, 2010. I find that he was a regular user of this vehicle and asserted control over it. He referred in his evidence to the vehicle being “my car”. I find that the BMW was his vehicle.
[64] Mr. Stubbs testified that the firearm was not his father’s or Ms. James’. If the vehicle was in fact used by others as Mr. Stubbs testified to, there is no reason to believe that those others would leave a firearm in the vehicle, given the value of such an item and the consequences of it being discovered.
[65] Mr. Stubbs had been shot and was sufficiently traumatized by that to be afraid to come out of his house without wearing a bulletproof vest. He had a large amount of cash on him. It can be reasonably inferred from these facts that Mr. Stubbs had a firearm and that he brought it with him in the BMW for his protection. While it could not be seen from the driver’s seat, the loaded firearm was located within reach of Mr. Stubbs. The fact that there was no forensic evidence linking the firearm or ammunition to Mr. Stubbs is not unusual. I do not believe Mr. Stubbs’ evidence that he did not put the firearm in the vehicle or that he had no idea who had. Although I do not believe Mr. Stubbs, I have considered whether his evidence leaves me with a reasonable doubt about his guilt. I have concluded that it does not.
Conclusion
[66] In all the circumstances, I find that Mr. Stubbs had the requisite knowledge and control of the firearm. I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Stubbs was in possession of the firearm and is guilty of the firearms offences with which he is charged.
Released April 19, 2012 ______________________
Backhouse, J.
COURT FILE NO.: 11-30000389-0000 and 12-30000239-0000
DATE: 20120419
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KIRK STUBBS
REASONS FOR decision
Backhouse J.
Released: April 19, 2012