ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-10-90000468-0000
DATE: 20120113

BETWEEN:

HER MAJESTY THE QUEEN – and – O’Neil Augustus Rose

Ms. Kandia Aird, for the Crown
Mr. Paul Lewin, for the Defendant

HEARD: January 9 and 10, 2012

Corrick J.

REASONS ON SECTION 24(2) CHARTER APPLICATION

The Application

[ 1 ] Mr. Rose is charged with four counts of possession of a controlled substance for the purpose of trafficking, four counts of possession of a controlled substance, and possession of property obtained by crime. He b rings this application pursuant to section 24(2) of the Charter for an order excluding from evidence the controlled substances found on his person in violation of his rights guaranteed by sections 8, 9, 10(a) and 10(b) of the Charter.

Overview of the evidence

[ 2 ] On December 28, 2008, Officers Mildenberger and Lim were patrolling 14 Division on bicycles as members of the Community Response Unit. While in the area of Queen Street West and Bathurst Street at 8:15 a.m., they observed two men exit an after hours club called the Basement. The officers observed the two men walk north on Bathurst Street, turn west on Queen Street and get into a mini-van that was parked on the north side of Queen Street. The officers approached the mini-van. Mr. Rose was in the driver’s seat and Mr. Tan was in the passenger seat. Officer Mildenberger approached Mr. Rose. Officer Lim approached Mr. Tan. Both officers testified that their purpose in approaching the mini-van was to see if they could detect any signs of impairment on the driver.

[ 3 ] Officer Mildenberger had a conversation with Mr. Rose, and within sixty seconds formed the opinion that he was not impaired. Very shortly thereafter, at 8:20 a.m., Officer Lim informed Officer Mildenberger that he was arresting Mr. Tan, the passenger, for possession of marijuana. Based on this information, Officer Mildenberger arrested Mr. Rose for possession of marijuana as well. Mr. Rose got out of the mini-van and Officer Mildenberger performed a pat down search. Mr. Rose was not handcuffed at this time. During the search, Officer Mildenberger felt a bulky object in the front of Mr. Rose’s pants. He asked Mr. Rose what it was. Mr. Rose replied that it was personal use pills and GHB. Officer Mildenberger did not remove the drugs from Mr. Rose at that time. He arrested Mr. Rose for possession of a controlled substance and handcuffed him.

[ 4 ] Officer Mildenberger did not read Mr. Rose his rights to counsel right away, but rather at 8:40 a.m., just prior to turning him over to another officer, who transported him to 14 Division. Officers Mildenberger and Lim returned to 14 Division, and at 9:44 a.m., they conducted a strip search of Mr. Rose at which time they seized the drugs that were down the front of his pants.

Positions of the Defence and Crown

[ 5 ] Defence counsel’s main submission is that the officers followed Mr. Rose and Mr. Tan from the Basement nightclub with the intention of investigating them for possession of drugs, and that their stated intention to determine if the driver of the vehicle was impaired by drugs was simply a ruse for their drug investigation. Defence counsel further submits that Officer Mildenberger had no lawful basis for arresting Mr. Rose for possession of marijuana, and therefore the search Officer Mildenberger conducted incident to that arrest violated Mr. Rose’s rights under s. 8. Finally, defence counsel submits that the drugs found on Mr. Rose should be excluded pursuant to s. 24(2) of the Charter.

[ 6 ] Defence counsel also argues that the officers breached Mr. Rose’s rights to be promptly advised of the reason for his detention, contrary to s. 10(a) of the Charter, and to be informed of his right to counsel without delay, contrary to s. 10(b) of the Charter.

[ 7 ] Crown counsel submits that Mr. Rose was not detained when the officers first approached the vehicle and that his arrest for possession of marijuana that followed was lawful. In the alternative, Crown counsel argues that Mr. Rose was lawfully detained for investigation at the outset and then lawfully arrested when Officer Mildenberger conducted the pat down search of him and discovered the drugs down his pants. In either case, the search of Mr. Rose, according to Crown counsel, was lawfully conducted either as incident to a lawful arrest or as incident to a lawful investigative detention.

[ 8 ] I have concluded that the arrest of Mr. Rose for possession of marijuana was not lawful, that the search conducted incidental to that arrest was therefore unreasonable, and that the admission of the drugs into evidence would bring the administration of justice into disrepute. I therefore order that they be excluded.

Was the arrest of Mr. Rose for possession of marijuana lawful?

[ 9 ] It is necessary to consider the evidence of the officers in some detail to determine whether Officer Mildenberger had reasonable and probable grounds to arrest Mr. Rose for possession of marijuana.

[ 10 ] In December 2008, Officer Mildenberger had been a police officer for six years. Officer Lim had been a police officer for two years. They both testified about their experience with after hours clubs.

[ 11 ] Officer Mildenberger testified that, in his experience, people frequent after hours clubs to dance and consume “club drugs,” which Officer Mildenberger said included MDMA, GHB, Ketamine and cocaine. He testified that he had been in the Basement club three times while in uniform. He did not see any drugs being consumed on any of those occasions. He also testified that he had once arrested someone in a car parked in a parking lot used by patrons of the Basement club for possession of a controlled substance. This arrest had occurred sometime within eighteen months preceding this incident. He was unsure how he knew that the person he had arrested had been at the Basement club, but he assumed it based on the time of day he arrested the person. Most of Officer Mildenberger’s experience with after-hours clubs had been obtained in relation to another club, the Comfort Zone, where Officer Mildenberger had arrested people for drug possession and had attended medical calls for patrons suffering from drug overdoses. Officer Mildenberger testified that the Basement club is well known in 14 Division as an establishment where drugs are consumed.

[ 12 ] Officer Lim also testified that he had learned from his experience as a police officer that the Basement is an after-hours club known for high drug activity that attracts impaired drivers and drug users. He said this was based on his patrols of the area. He had investigated people related to the Basement club for drug offences and impaired driving offences but had made no arrests as a result of those investigations. Ultimately he told Crown counsel in chief that he had learned of the high drug activity in the Basement from his partner, Officer Mildenberger, who had advised him of that fact during the morning of December 28, 2008.

[ 13 ] Officer Mildenberger testified that he believed that anyone exiting an after-hours club at 8:15 a.m. had probably consumed drugs. As a result, once he saw Mr. Rose exit the Basement, he decided to approach him and speak to him to see if he could detect any signs of impairment. He denied approaching Mr. Rose’s vehicle for any other reason.

[ 14 ] Both officers agreed that while they observed Mr. Rose and Mr. Tan walk to the vehicle, they did not act suspiciously, exchange anything, look around suspiciously, yell, stagger, act rowdy, consume anything or speak on a cell phone.

[ 15 ] Once Officer Mildenberger approached Mr. Rose, he engaged him in conversation. Although Officer Mildenberger can’t recall the order in which he asked Mr. Rose questions, he testified that Mr. Rose told him he had not consumed any drugs that evening and that he had not seen any drugs in the Basement. He said that he had driven with Mr. Tan from Scarborough to chill at the Basement for a few minutes. He said that he knew Mr. Tan from the club scene. Mr. Rose was polite, friendly and co-operative. On the basis of this conversation, which lasted no more than 60 seconds, Officer Mildenberger formed the opinion that Mr. Rose was not impaired.

[ 16 ] Even though Officer Mildenberger went out of his way to say that he was not investigating Mr. Rose, but rather having a simple conversation with him, his interest was piqued by some of Mr. Rose’s answers to his questions. He found it suspicious that Mr. Rose had not seen any drugs in the Basement, and he thought it was unreasonable that anyone would drive from Scarborough at 7:00 a.m. on a Sunday morning and stay just a minute or two at the Basement and then leave.

[ 17 ] While Officer Mildenberger was talking to Mr. Rose, Officer Lim was on the other side of the vehicle speaking to Mr. Tan. He asked Mr. Tan if he had any drugs on him. Mr. Tan produced a clear plastic bag containing a small amount of marijuana from the front pocket of his jeans. Officer Lim arrested Mr. Tan for possession of marijuana.

[ 18 ] Officer Lim informed Officer Mildenberger of Mr. Tan’s arrest very shortly after Officer Mildenberger’s conversation ended with Mr. Rose. Officer Mildenberger testified that based on that, and the fact that Mr. Rose had been in an after-hours club, which in Officer Mildenberger’s words is “just about drugs,” and the answers Mr. Rose gave him during their conversation, and the fact that Mr. Tan had drugs on him in Mr. Rose’s vehicle, Officer Mildenberger believed that Mr. Rose knew about the marijuana, and he arrested him for possession of marijuana.

[ 19 ] Officer Mildenberger testified that he did not remember the words Officer Lim used to advise him that he was arresting Mr. Tan for possession of marijuana. He did not know where Officer Lim had located the marijuana; that he only knew it was in the car. Officer Lim testified that, although he did not recall the precise words he used, he advised Officer Mildenberger that he had found marijuana on Mr. Tan’s person. Officer Lim repeated that he told Officer Mildenberger that he had found the marijuana on Mr. Tan’s person at least three times during his evidence. Neither officer made notes about what Officer Lim said to Officer Mildenberger about the marijuana.

[ 20 ] I find as a fact that Officer Lim told Officer Mildenberger that he had discovered marijuana on Mr. Tan’s person. This finding is supported not only by Officer Lim’s evidence, but also by the evidence Officer Mildenberger gave in response to a question about why he testified in chief that he felt the marijuana must have been accessible to Mr. Rose. Officer Mildenberger testified that it seemed reasonable to him that Mr. Rose would be able to say “pass me the marijuana in your pocket” to an acquaintance he had driven to the club, and spent time with in the club, and who was sitting with him in his car. It seemed reasonable to Officer Mildenberger that two friends in possession of marijuana make that marijuana accessible to each other. Officer Mildenberger also testified that it was very likely that Mr. Tan told Mr. Rose about the drugs on his person because they were in an after-hours club and “the conversation between anyone attending these clubs [after-hour clubs] would be about the drugs that they are using.”

[ 21 ] The powers of a police officer to arrest a person without warrant are set out in s. 495(1) of the Criminal Code. To arrest someone without a warrant, the police officer must find the person committing a criminal offence or must have reasonable grounds to believe the person has committed or is about to commit an indictable offence. Reasonable grounds have both a subjective and objective element to them. The arresting officer must subjectively have reasonable and probable grounds upon which to base the arrest, and a reasonable person in the position of the police officer must be able to conclude that there were reasonable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241.

[ 22 ] In my view, a reasonable person in the position of Officer Mildenberger could not have formed reasonable grounds to arrest Mr. Rose for the possession of marijuana found on the person of Mr. Tan. There was no evidence that Mr. Rose had knowledge or control over the marijuana in Mr. Tan’s pocket. Officer Mildenberger’s evidence that Mr. Tan very likely told Mr. Rose about it because they went to an after-hours club together is pure speculation. Even if I were to accept Officer Mildenberger’s evidence, which I do not, that he did not know where the marijuana had been found by Officer Lim, I would still be unable to find that reasonable grounds existed to arrest Mr. Rose for possession of marijuana.

[ 23 ] In my view, Officer Mildenberger’s explanation for believing that Mr. Rose had access to the marijuana is not credible and is, in my view, nothing more than an ex post facto attempt to justify his later search of Mr. Rose. Accordingly, I do not find that he had the requisite subjective grounds to arrest Mr. Rose.

[ 24 ] Having found that there was no lawful basis to arrest Mr. Rose for possession of marijuana, it follows that Officer Mildenberger had no lawful basis to search Mr. Rose incident to that arrest. A detention unauthorized by law is arbitrary and violates s. 9 of the Charter: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 54. Warrantless searches that are not authorized by law are unreasonable and violate s. 8 of the Charter: R. v. Collins, [1987] 1 S.C.R. 265.

Was Mr. Rose detained for investigative purposes?

[ 25 ] I turn now to the alternative argument put forward by the Crown that Mr. Rose was lawfully detained for investigative purposes. It is the Crown’s submission that the answers Mr. Rose gave Officer Mildenberger provided him with reasonable grounds to detain Mr. Rose to investigate him for possession of marijuana. Once Mr. Tan was arrested, Officer Mildenberger was then entitled to conduct a pat down search of Mr. Rose to allay officer safety concerns. There are two problems with this argument. The first is that Officer Mildenberger denied that he was investigating Mr. Rose for possession of drugs. He was clear that he was only looking for signs that Mr. Rose was impaired. The second is that even if Officer Mildenberger had detained Mr. Rose for investigative purposes, he would have been permitted to engage in a pat-down search of Mr. Rose only if he had reasonable grounds to believe that his safety or that of others was at risk: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. This too is contrary to the evidence.

[ 26 ] Officer Mildenberger testified once he arrested Mr. Rose for possession of marijuana, he asked him to get out of the mini-van. He did not handcuff Mr. Rose at that time because, in Officer Mildenberger’s words, “possession of marijuana, while illegal, is not among the most serious of offences, also he was co-operative, his demeanour was friendly, and initially I didn’t see any reason to cuff him.” At that point in time, Officer Mildenberger did not have reasonable grounds to believe that his safety or that of others was at risk, and would not have been authorized to do a pat-down search of Mr. Rose.

[ 27 ] I find that Mr. Rose’s right to be secure against unreasonable search and his right not to be arbitrarily detained were breached. I therefore turn to s. 24(2) of the Charter.

Section 24(2) analysis

[ 28 ] Section 24(2) of the Charter states as follows:

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[ 29 ] The Supreme Court of Canada in R. v. Grant held that in determining whether the admission of evidence obtained in violation of the Charter would bring the administration of justice into disrepute, the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system after having made three inquiries:

a. the seriousness of the Charter -infringing state conduct;

b. the impact on the Charter -protected interests of the accused; and

c. society’s interest in an adjudication on the merits.

Seriousness of the Charter -infringing state conduct

[ 30 ] I must consider the nature of the police conduct that breached the Charter and led to Officer Mildenberger’s discovery of the drugs. I accept that Officers Mildenberger and Lim were entitled to approach Mr. Rose in his vehicle and speak to him to determine if he was impaired. Officer Mildenberger testified that he determined that Mr. Rose was not impaired within sixty seconds of speaking to him. He also testified that the conversation he had with Mr. Rose piqued his interest because he did not believe that anyone would drive from Scarborough to attend a nightclub for only a few minutes. This conversation did not pique Officer Mildenberger’s interest in determining whether Mr. Rose was impaired, as he had already determined that he was not. In my view, it piqued Officer Mildenberger’s interest in determining whether Mr. Rose was in possession of drugs. Once it was clear to Officer Mildenberger that he could not detain Mr. Rose on the grounds of impairment, Officer Mildenberger used the fact of Mr. Tan’s arrest for possession of marijuana as a pretext, in my view, to search Mr. Rose for drugs.

[ 31 ] As I have already indicated, Officer Mildenberger then provided the court with an explanation for his reasonable grounds for believing that Mr. Rose was in possession of the marijuana in Mr. Tan’s pocket that is patently unreasonable. I cannot find that Officer Mildenberger honestly believed that he had reasonable grounds to arrest Mr. Rose for possession of marijuana. The arrest was nothing more than an excuse to search Mr. Rose. I believe that Officer Mildenberger knew that his search of Mr. Rose was contrary to the Charter. In my view, the arrest was not made in good faith. This strongly militates against the admission of the evidence.

Impact on the Charter -protected interests of Mr. Rose

[ 32 ] This line of inquiry considers the seriousness of the Charter breaches from the perspective of Mr. Rose. As the court in R. v. Grant pointed out, Charter breaches can range from technical and fleeting to highly intrusive. T he majority in Grant wrote, at paragraph 76, “the more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.”

[ 33 ] In this case, the breach of Mr. Rose’s s. 8 and 9 rights lead to him being arrested and patted down by a police officer on a public street. He was required to stand handcuffed on the street for 20 minutes waiting for a police car to arrive to transport him to 14 Division. He was subjected to a strip search while at 14 Division. These breaches significantly intruded on Mr. Rose’s protected interests of privacy, liberty and human dignity. This factor as well weighs strongly in favour of excluding the evidence.

Society’s interest in an adjudication on the merits

[ 34 ] The physical evidence uncovered as a result of the Charter breaches is highly reliable and is crucial to the Crown proving the serious charges of possession of controlled substances for the purpose of trafficking. This factor weighs strongly in favour of admitting the evidence.

Balancing the factors

[ 35 ] Balancing the factors under the three lines of inquiry is qualitative in nature and not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion or inclusion. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. In all cases, it is the long-term repute of the administration of justice that must be assessed: R. v. Grant.

[ 36 ] In this case, I find that Officer Mildenberger demonstrated a deliberate disregard for Mr. Rose’s s. 8 and 9 rights when he arrested him when he knew that he did not have reasonable grounds to do so. I find that Officer Mildenberger did so simply to permit him to search Mr. Rose for drugs.

[ 37 ] While not as egregious as R. v. Harrison, 2009 SCC 34 (), [2009] 2 S.C.R. 494, this case does have some similar features. In R. v. Harrison the court excluded 35 kg of cocaine discovered as a result of an unconstitutional detention and search. In balancing the three factors, the Supreme Court of Canada considered the lack of reasonable grounds for the police search of the vehicle in which the cocaine was found, and the officer’s misleading testimony in court. In this case, there were no objective or subjective grounds for the arrest and subsequent search of Mr. Rose. A legitimate investigation of a possible case of impaired driving evolved into an unlawful arrest based solely on speculation. The officer’s testimony became an attempt to justify the unjustifiable.

[ 38 ] Having regard to all of the circumstances in this case, I find that the admission of the evidence in this case would bring the administration of justice into disrepute.

[ 39 ] The application is allowed and the evidence seized from Mr. Rose is excluded.

[ 40 ] I thank counsel for their able and thorough submissions.

Corrick J.

Released: January 13, 2012

COURT FILE NO.: CR-10-90000468-0000
DATE: 20120113

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – O’Neil Augustus Rose

REASONS on sECTION 24(2) CHARTER APPLICATION Corrick J.

Released: January 13, 2012