ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1226/11
DATE: 20120822

B E T W E E N:

Her Majesty the Queen

M. Miller, for the Crown Respondent

• and -

Jermaine John

A. Weisberg, for the Applicant

Applicant

HEARD: August 13, 15, 2012

REASONS FOR RULING

Charter s. 8 ,9 and 10

Wein J

1Mr. John, as he acknowledges, was a street-level drug dealer. Found in his vehicle at the time of his arrest were two cell phones, a small weigh scale, and three packages containing what appeared to be crack cocaine. One package was tested to be caffeine, but the other two amounted to 15 grams of crack cocaine. The cell phones were in plain view in the car but the drugs and the scale were found in a sock hidden behind the center box of the front console of the vehicle Mr. John was driving, his mother's Acura. A third cell phone was hidden under the sock and not found by the police.

2The question to be determined on the voir dire is whether or not the drugs and related paraphernalia were properly seized by the police officer who stopped Mr. John. It is argued that Mr. John’s rights under sections 8, 9 and 10 of the Charter were violated, and that the evidence ought to be excluded.

The facts

3Mr. John was stopped and arrested by a uniformed officer at around 10 a.m. on November 25, 2010, a weekday. He was arrested for both dangerous operation of a motor vehicle and possession of a controlled substance, although the dangerous operation charge was never laid.

4Mr. John was initially seen parked in his mother’s Acura on a short residential side street in Brampton. An officer was patrolling the area, investigating the theft of two earlier model Acura vehicles from the same general neighbourhood, and coincidentally checking that side street because it was an area known for drug transactions. As the officer passed Mr. John, he drove slowly by, focusing his attention on the car. He noted that the vehicle was not one of the stolen vehicles. He decided, however, to speak to Mr. John and so did a U-turn. As he was doing this, Mr. John also did a U-turn, and then drove around the corner at a high rate of speed, causing the vehicle to ‘rock’ on its axle. Mr. John acknowledged that he may have driven quickly, but said he was being careful not to be in breach of any highway traffic laws, because he did not want to be stopped by police.

5Although he knew the area and should have gone west on the street, Mr. John drove east and then down another side street and performed an additional U-turn, then back west. His route could objectively be called evasive. Mr. John said he simply made a mistake in direction, and then corrected it, but I accept that he was anxious to get away from the police, knowing that he had drugs in the car. The officer lost sight of Mr. John’s vehicle, but a minute or two later saw him on a main street and followed him. At this time the vehicle was traveling normally.

6The officer stopped the vehicle, both because of what he deemed to be the dangerous operation that he had witnessed earlier, and also because Mr. John had been in an area known by him for drug trafficking. This was therefore not a highway traffic stop, but part of a criminal investigation from the outset. The officer testified that before he stopped the vehicle he did not realize that Mr. John was black, but had seen that the driver was male. After the stop the officer saw Mr. John make some movements in his car towards the console or a lower area. He thought the movements “seemed excessive”, beyond what a person might do in searching for a driver's license, although he acknowledged the movements were not necessarily unusual. The officer ran computer searches and found that the vehicle had not been reported stolen.

7Mr. John testified on the voir dire that he had been searching in the console of the car for his driver’s license, which was in his wallet in the lower centre console. He denied that he was hiding his drugs in the upper centre console at this time, or that the box in the upper console had been taken out at this point in time. He acknowledged that he had two cell phones in plain view.

8In speaking to Mr. John, the officer noted that the address on Mr. John’s license matched the address of the registered owner, his mother. Although he did not think the vehicle was involved in the thefts he had been investigating, he decided to question Mr. John. He asked Mr. John why he had been on the side street, because he believed it to be a high drug area. Mr. John explained that he had just dropped his son off at daycare. The officer repeated his question but Mr. John just shrugged his shoulders. The officer then arrested him for dangerous operation and possession of controlled drugs, and read his rights to counsel and caution to him. Mr. John asked to speak to his lawyer, whose number he had, and was told he could do that later.

9The officer placed Mr. John in his cruiser and while another officer tended to him, searched the vehicle and found the drugs hidden behind the console. The officer said he noted the front console because the compartment was sitting out a bit.

10The grounds upon which the officer stopped the vehicle and conducted the search were:

1. that he had seen the vehicle parked in a known area where drug transactions occurred;

2. that after the officer drove by the vehicle, the vehicle “peeled away” at a high rate of speed, causing the vehicle to tilt as it went around the corner;

3. when the vehicle was stopped a short time later, Mr. John was seen by the officer to be leaning down to his right, as if fumbling with or possibly hiding something.

The Issue

11The legal question that arises is whether, in conducting this warrantless search, the officer was in breach of S. 8 of the Canadian Charter of Rights and Freedoms . The defence also argues that in stopping the vehicle, s. 9 of the Charter was breached and that in continuing his questioning, sections 10(a) and (b) were breached.

12In my view, the grounds for conducting the search were inadequate, and a breach of s. 8 of the Charter did occur. The requisite analysis pursuant to s. 24 (2) of the Charter leads to the conclusion that the evidence ought not to be admitted at trial.

The Charter Breach

13It has been argued that in addition to the admittedly limited grounds on which the officer claims to have based his decisions, racial profiling played a role. The officer denied that he initially saw that Mr. John was black, and this seems unlikely. The photographs show that there was only light tinting on the windows, and the driver was clearly visible. It is true, however, that the officer at that stage would have been focusing on the model and year of the car because he was still determining whether it was one of the stolen vehicles he was looking for. I accept his evidence that in his mind Mr. John’s race played no role in his assessment of the facts.

14It cannot be denied that racial profiling may play a subtle, subconscious role in the multifaceted, instantaneous decision-making that is required of police officers on the street. They must strive to be aware of this possibility so that it can be deliberately factored out of their decisions. Still, not every arrest of a person of a certain race is tainted by profiling. In this case as in many, the decision of whether reasonable grounds to investigate further exist is not easy. At a minimum the officer had a proper basis for stopping the vehicle given the manner of driving shown earlier.

15The determination of the precise point at which suspicion and good police work reaches the stage of reasonable grounds for arrest on a particular offence is often difficult for officers, even those with extensive experience. The objective assessment of reasonableness has to be considered on the basis of the totality of the circumstances relied on by the officer, including the dynamics within which the police officer acted, and including his or her experience.

16In similar cases, such as R. v. Brown, 2012 ONCA 225 , the Court of Appeal has held that there must be something that lends objective justification or verification to the officer's belief that a drug transaction is occurring, or that drugs are present. A reasonable person standing in the shoes of the police officer must be able to see the grounds for the arrest. The Court has stressed the need to impose discernible, objectively measurable limits on police powers. The facts in this case bear similarity to those in a lower court decision: R. v. Anderson , 2011 ABPC 326 . In that case the officers had placed unwarranted reliance on the fact that bits of tiny plastic bags were seen on the floor of a vehicle they had stopped. The officers believed these to be somehow related to drugs, but the belief was held not to be objectively founded and the subsequent search was held invalid.

17Here, there was an important dispute in the evidence concerning whether or not Mr. John was hiding the drugs after he was stopped, or was searching for his license as he testified. He said he had previously hidden the drugs after he dropped his son off at daycare and that the upper console was not loose. In this case, Mr. John acknowledged his actions inside the car somewhat as described by the officer. The officer did acknowledge that the motions made by Mr. John in the car were not entirely dissimilar to those done by persons frantically searching for ownership, license and insurance.

18However, given the fact that the officer immediately went to this area, it is highly likely that the console box was visibly askew, because he immediately searched behind it. I accept as a fact that the drugs were being hidden after Mr. John was stopped.

19Nonetheless, from within the cruiser the officer could not have specifically seen what Mr. John was doing, and the motions he were making were equally consistent with the innocent explanation of searching for documents. Justification for the search of a driver cannot be augmented by actions that may be innocent.

20The overall constellation of circumstances relied on by the police amounted to strong suspicion, proven correct ex post facto . However, that same set of circumstances cannot cumulatively be said to objectively justify an arrest and subsequent search. Accordingly there was a breach of s. 8 of the Charter .

21It is also argued that this officer was oblivious to the duty to stand down from asking questions prior to the exercise of the right to speak to counsel, and I find there was an ancillary breach of s. 10 (a) and (b) of the Charter in the later questions asked at the scene.

Admissibility of the Evidence

22The Grant framework for determining whether evidence obtained in breach of the Charter must be excluded pursuant to s. 24 (2) of the Charter requires a balancing of factors, drawn from three lines of inquiry.

23Assessment of the seriousness of the Charter infringing conduct requires an assessment of good faith on behalf of the police. In this case, I accept that the officer genuinely, if subjectively, believed that he had adequate grounds. In doing so, he might conceivably have been subconsciously affected by the race and youthfulness of Mr. John, and also may have under assessed the strength of the grounds required. It is well-known that where police have nothing but suspicion they must leave the suspect alone. Even a solid suspicion or decision cannot justify a Charter breach. Good faith alone is not enough to mitigate the seriousness of the breach.

24The impact on the C harter protected interests of an accused person who is a driver must also be considered. It is clear that motorists have a lower expectation of privacy in their vehicles. The regulation of highway safety means that drivers may expect to be stopped for a number of reasons. However, drivers can nonetheless expect to be left alone absent other justification for being stopped. Mr. John was driving his mother's car, to which he had free access: it was a family vehicle, and as the sole driver at this time he had a reasonable if modest expectation of privacy. This was not an egregious intrusion, but it was nonetheless of moderate significance

25Society's interests in adjudication on the merits almost always favours admission, given the public interest in having the case adjudicated on its merits. Indeed in this case Mr. John openly admitted on the voir dire that he was in possession of the drugs for the purpose of trafficking.

26However, balancing these factors tilts towards excluding the evidence. A significant majority of members of the public are drivers. They must be assured that the police will not unreasonably stop and more importantly proceed to search their vehicles for reasons unrelated to traffic safety. Public confidence demands that a high standard be placed on police officers, and that police officers themselves be ready to subject their decisions to their own close scrutiny and analysis.

27In this case the admission of the evidence would undermine the public's confidence in the administration of justice, and the rights that drivers have to go about their business unimpeded by police suspicions.

28Accordingly, the evidence must be excluded. The charge of possession for the purpose of trafficking is dismissed.

Wein J