ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-30000319-0000
DATE: 20120524

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – COURTNEY ANTHONY NEWELL Defendant

Jonathan Smith, for the Crown
Maija Martin, for the Defendant

HEARD: February 27, 28 and 29, 2012

MOLLOY J.:

REASONS FOR DECISION

A. INTRODUCTION

[ 1 ] Police officers arrested Courtney Newell on May 19, 2010, at which time he was found to be in possession of a loaded handgun and a quantity of marijuana. He was charged with possession of the marijuana and a variety of offences relating to the firearm. Unquestionably, he was in possession of these items at the time of his arrest. The issue before me, however, is whether the actions of the police leading up to that arrest violated Mr. Newell’s Charter rights and, if so, whether the evidence obtained should therefore be excluded. If the evidence is admitted, Mr. Newell is clearly guilty as charged. Without the evidence, the Crown has no case whatsoever.

[ 2 ] The Crown argues that Mr. Newell was validly stopped by officers for driving offences. He was the sole occupant of the car, which was a rental. Routine inquiries with respect to his driver’s license and the rental agreement for the vehicle gave rise to concerns that he did not have a valid license and did not have lawful authority to be driving the car. Although he was asked questions about drugs and whether he had a weapon, he did not say anything to incriminate himself. Therefore, even if this did constitute a Charter breach, it had no impact on the accused. The officers also found Mr. Newell to be acting in a bizarre manner, including that he refused to get out of the car. They allowed him to call his mother and his fiancée and after their arrival he did get out. However, he did so in a suspicious manner and attempted to pass to his fiancée an object resembling a pencil case, which he had been clutching to his abdomen. Based on concerns for officer safety, the police gave him the option of placing the case on the roof of the car out of reach or allowing one of the police officers to look at its contents before permitting his fiancée to take it. Mr. Newell chose the latter. When the officer looked in the case, he found a baggie containing marijuana. He placed Mr. Newell under arrest for possession of marijuana. When the officers searched Mr. Newell as an incident to that arrest, they discovered that he had a loaded handgun in the waistband of his pants. The Crown argues that the search of the pencil case and Mr. Newell’s person were valid in the circumstances and did not violate Mr. Newell’s rights. Alternatively, the Crown submits that if there was a breach it is at the lower end of the spectrum and the evidence should nevertheless be admitted under s. 24(2) of the Charter.

[ 3 ] The defence position is that the officers had no valid basis for stopping Mr. Newell and that everything flowing from his initial detention is tainted. Also, the detention was for an unreasonably long period of time. The questions asked by the police officer about drugs and weapons were improper and, even though no incriminating statement was elicited, this is part of an overall disregard for Charter rights. The defence denies that there was any consent given for the officers to search the pencil case and alleges that this was an unlawful search. The defence submits that in light of the cumulative effect and systemic nature of the Charter breaches, the evidence obtained should be excluded.

[ 4 ] For the reasons that follow, I find no breach of the Charter by the police officers. The Crown has established that there was a lawful basis for the initial detention and for the extended detention after that, as well as valid grounds to search the pencil case. Upon finding the drugs in the pencil case, the officers had grounds to arrest Mr. Newell and to search him as an incident to that arrest. Therefore, the evidence is admissible. Further, even if there had been a Charter breach, I would have admitted the evidence under s. 24(2) of the Charter.

B. THE EVIDENCE

The Initial Stop

[ 5 ] Two Toronto police officers were involved in the initial stop that triggered the series of events leading to the charges in this case – Police Constables Michael Gillespie and Craig Davis, both members of the Community Response Unit. On the morning of May 19, 2010, they were riding their bicycles in the Malvern neighbourhood of Toronto, as part of a routine patrol of the area. At about 10:00 am they were on a pathway in a park area near an apartment complex at 311 Washburn Way. There are a number of schools in the neighbourhood and there had been recent complaints to the police about young people smoking marijuana in the area.

[ 6 ] Both officers testified that as they were approaching the rear of the building, their attention was drawn by the sound of squealing tires. They saw a Ford Focus enter the parking lot behind the building at a high rate of speed, with loud music blaring. The car pulled into one parking spot, and then reversed into another spot behind it. Both officers testified that they decided to investigate the vehicle for speeding and excessive noise. Both mentioned the presence of pedestrians, including children in the area.

[ 7 ] Courtney Newell was the driver and only occupant of the Focus. Neither of the police officers knew Mr. Newell or had any prior contact with him. P.C. Gillespie approached the driver’s side door to speak to Mr. Newell, while P.C. Davies positioned himself, with his bicycle, at the front of the car. The driver’s window was down. P.C. Gillespie asked Mr. Newell to turn down the music and then asked for his driver’s license and ownership. Mr. Newell advised that the car was a rental in his fiancée’s name and that she had the rental agreement. P. C. Gillespie testified that he told Mr. Newell that he had been driving too quickly and that he had been playing music too loudly, given that there were young children around. He noticed that Mr. Newell was sweating heavily, shaking, and appeared nervous. Meanwhile, P.C. Davies radioed police dispatch to run the plates on the car, which confirmed that it was owned by Enterprise Rental. He passed that information on to his partner. P.C. Davies testified that he also noticed at this point that Mr. Newell seemed nervous and was sweating profusely.

[ 8 ] P.C. Gillespie asked Mr. Newell why he was so nervous. He said that Mr. Newell told him that he did not like being around police, that he had seen police do bad things on television, and that he had himself had a bad experience with police in the past. P.C. Gillespie testified that at this point he asked Mr. Newell if there was anything in the car he should know about, mentioning in particular drugs or weapons, and that Mr. Newell replied in the negative. P.C. Davies also testified that he heard this exchange between P.C. Gillespie and Mr. Newell. Both officers testified that this is a standard question they always ask on a traffic stop and that their purpose in asking is for officer safety.

[Text continues exactly as in the original document...]

MOLLOY J.

Released: May 24 , 2012

COURT FILE NO.: 11-30000319-0000
DATE: 20120524
ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Applicant – and – COURTNEY ANTHONY NEWELL Defendant

REASONS FOR DECISION MOLLOY J.

Released: May 24, 2012

[1] R. v. Yousofi 2011 ONSC 2298 at para 6 (l); R. v. Humphrey 2011 ONSC 3024 .

[2] Brown v. Durham (Regional Municipality) Police Force (1998), 43 O.R. (3d) 223, 167 D.L.R. (4 th ) 672 (C.A.); R. v. Nolet , 2010 SCC 24 , [2010] 1 S.C.R. 851; R. v. Sandhu (2011), 103 O.R. (3d) (C.A.).

[3] R. v. Ladouceur , [1990] 1 S.C.R. 1257

[4] R. v. Beepath , 2011 ONSC 4104 at para 22 ; R. v. Grant , 2009 SCC 32 at para. 7 .