REASONS FOR JUDGMENT

A. OVERVIEW

[1] The accused Damian Frank (hereinafter, Frank) is charged in a three count Indictment with possession of cocaine for the purposes of trafficking, simple possession of cocaine, and possession of proceeds of crime. He elected trial by judge alone. At the end of a five day trial, I reserved judgment.

[2] The three offences are alleged to have taken place on May 1, 2010. On that day, Frank was a passenger in a car that was stopped by the police. It was discovered that an arrest warrant existed for Frank on a charge of breach of probation. He was arrested on the warrant and was searched incident to arrest. The police found $1,349 in cash and a small amount of marijuana in his pockets. He was arrested for possession of the marijuana and placed in the backseat of a police cruiser. Upon arrival at the police station, 25.48 grams, or about an ounce of crack cocaine was found in a plastic bag behind the backseat area where Frank had been seated in the police cruiser. It is admitted that this is a commercial trafficking quantity of crack cocaine.

[3] There are two issues in the case. The first issue is whether Frank was “detained” in the car that was stopped by the police and whether asking for his name was a “search and seizure”. This issue arises in the context of a Motion brought pursuant to ss. 7, 8, 9 and 24(2) of the Charter of Rights. It is submitted that Frank was “detained”, within the meaning of s. 9 of the Charter, that asking for his name violated s. 8 of the Charter, and that all of the Crown’s evidence flows from this s. 8 breach and should be excluded pursuant to s. 24(2) of the Charter.

[4] The second issue, if the Crown’s evidence is admitted, is whether it has been proved beyond reasonable doubt that Frank was in possession of the ounce of cocaine found in the backseat area of the police cruiser. The evidence on this point is circumstantial and it includes the following: the police had searched the backseat area of the cruiser, prior to starting their shift, and found nothing; Frank was the first prisoner placed in the backseat during the officers’ shift; an object of some kind was felt in the area of Frank’s buttocks during the search incident to arrest at the scene of the motor vehicle stop; the cocaine was discovered immediately behind where Frank was seated; he was confronted with the cocaine in the sally port at the station and he made a gesture and a sigh that could be interpreted as an acknowledgement of defeat; and the plastic bag containing the cocaine had a small amount of feces on the outside.

[5] The Crown and the defence called evidence on a single blended trial and Charter Motion. The two arresting officers testified for the Crown and Frank testified for the defence. The Crown then called brief reply evidence from two officers. Frank denied being in possession of the cocaine. The defence theory is that some earlier prisoner, on some earlier shift, must have left the cocaine in the backseat of the cruiser and that the two arresting officers simply failed to discover it when they started their shift.

[6] I dismissed the Charter Motion at the conclusion of the trial, with reasons to follow, and then heard submissions on the merits of the case. These are my reasons on both the Charter Motion and on the merits.

B. FACTS

(ii) The facts relating to the s. 9 and s. 8 Charter issue

[7] Many of the facts relevant to the Charter Motion are not in dispute. The two arresting officers and Frank are all in general agreement concerning the events that preceded the motor vehicle stop. There is also a considerable amount of agreement about the events that unfolded once the motor vehicle was stopped. I am satisfied of the following narrative, except where there is some divergence in the evidence, in which case the differing accounts will be set out.

[8] Frank was the front seat passenger in a blue Chev Impala that was being driven by his friend Tetomar Brown (hereinafter, Brown). It was about 5:28 p.m. on May 1, 2010 and it was a sunny day. Frank and Brown were southbound on Hamilton Street in a downtown residential neighbourhood of Toronto. The police had been told to patrol the area as it is known for drug activity. The two officers noticed the car driven by Brown because it had very dark tinted windows which may have violated the Highway Traffic Act. The police followed the car for a few blocks. It made two right hand turns at stop signs without signalling. This gave rise to further Highway Traffic Act concerns. At this point, the police turned on the emergency equipment in their marked cruiser and the Chev Impala pulled over.

[9] It is conceded that this was a lawful Highway Traffic Act stop. Brown, as the driver of the vehicle, was undoubtedly “detained” within the meaning of s. 9 of the Charter, for purposes of a police investigation of his car and his driving. The issue in the present case is whether the passenger, Frank, was also “detained”.

[10] The two officers in the marked police cruiser were both in uniform. Constable Sandeep Gill was the driver. He had been a police officer for about four years at the time of the motor vehicle stop. He was the more senior of the two officers and he took the lead at all times. His partner was Constable David Delima who had been a police officer for four months at the time. Cst. Delima was essentially in training and everything was new to him. He was still struggling with the practice of note-taking. This case was the first time he had ever testified and he was nervous and uncertain on many points. Cst. Gill was a much more assured and reliable witness.

[11] Both officers got out of their cruiser, which was parked behind the Chev Impala. Cst. Gill went to the driver’s side and had a conversation with Brown through the driver’s window. Cst. Gill told Brown that he was stopped because of the dark tint to the car windows and because of failing to signal. He asked Brown for his license and it was provided.

[12] Cst. Delima went to the passenger side and kept an eye on Frank through the partially rolled down passenger side window. He was standing near the passenger door, but a little behind, and he was simply watching Brown for reasons of officer safety. In particular, he was watching Brown’s hands to make sure he did not reach for a weapon. It was never suggested to Cst. Delima that he said anything to Frank or that he was blocking Frank’s exit from the car. When Frank testified, his account was that Cst. Delima told him, “please keep your hands visible”. Cst. Delima spoke to Frank in a “nice” manner. When asked whether he felt he could leave the car, Frank testified that he wanted to leave but Cst. Delima was “blocking off my door” and so “I couldn’t leave”.

[13] Cst. Gill and Frank both agree that Frank was already on his cell phone when Cst. Gill approached the car and spoke to the driver. These witnesses also agree that Frank told Cst. Gill that it was his lawyer who he was speaking to on the cell phone. Finally, they agree that Cst. Gill told Frank to get off the cell phone, for reasons of officer safety, and that Frank eventually complied but only after being told twice. Cst. Gill agreed that it was a demand or “command” to get off the phone, as he did not know who Frank was calling. Frank understood that Cst. Gill’s concern was that Frank could be calling in associates to come and “ambush” the police and so he complied. Once Frank hung up, Cst. Gill finished speaking to Brown and then he walked around to the passenger side of the car, asked Frank for his name, and Frank gave it. Frank testified that he was not concerned about giving his name to the police. His concern was that he did not want to “have anything to do with talking to them”.

[14] The only difference of any significance between Cst. Gill’s and Frank’s accounts of this interaction at the car, is that Cst. Gill testified that Frank initiated the discussion. According to Cst. Gill, Frank seemed flustered or upset about the vehicle stop and essentially interrupted Cst. Gill, who was trying to give Brown the reasons for the Highway Traffic Act stop and was asking for Brown’s license. Cst. Gill described Frank as being “on my case” about the vehicle stop. He was “talking over” Cst. Gill, telling Cst. Gill that he was on the cell phone to his lawyer, and asking Cst. Gill to speak to his lawyer on the cell phone. Cst. Gill found this behaviour to be unusual and wondered why Frank was acting this way and whether he was engaged in come criminal activity. This is why he asked for Frank’s name. Otherwise, he may not have even spoken to Frank who was simply a passenger in the car.

[15] Frank’s somewhat different account on this point was that he did not initiate the discussion with Cst. Gill. Rather, it was Cst. Gill who interrupted his telephone call to his lawyer. Cst. Gill “asked me to hang up the phone for their safety” and explained that “it could be anybody you’re talking to”. It was stated twice by Cst. Gill, as a “command”, and it made Frank feel that “I have to get off the phone”. So he hung up the phone and Cst. Gill “went back to speaking to Mr. Brown”.

[16] Once Cst. Gill had obtained Brown’s driver’s license and Frank’s name, the two officers left the blue Chev Impala. They both walked back to the police cruiser, got in, and ran various computer searches on the two names. The purpose of these computer checks was to see if there were any warrants or court orders relating to the two men. It appears from the computer records that the officers returned to their police cruiser at about 6:33 p.m., ran the computer check on Brown at 6:34 p.m., and ran the computer check on Frank at 6:35 p.m. This latter computer search revealed that 52 Division had an arrest warrant for Frank on a charge of breach of probation.

[17] Frank testified that as soon as the officers left him and Brown alone in the blue Chev Impala and returned to their cruiser, he immediately called his lawyer back. He testified that he was “afraid” and felt that he had to “sneak” this further call to his lawyer. They talked on the phone for a few minutes and he obtained advice about whether he had to speak to the police. He testified that once the officers had left him, “I felt that I could call again”. Cst. Gill had simply told him, “I am here right now, hang up your phone, I’m dealing with something now, hang up the phone until I’m done with you guys, you can call your lawyer later”.

[18] Both officers testified that Frank was not “detained” in their minds. They never told Frank that he could not leave, although they also did not tell him that he was free to leave. Passengers sometimes do leave in a Highway Traffic Act stop, according to the officers, as it is the driver who is detained.

(ii) The facts relating to the merits of the case

[19] It was during the evidence relating to the merits of the case where more serious conflicts appeared. In particular, Frank denied ever being in possession of the ounce of crack cocaine whereas the Crown’s circumstantial evidence raises the inference that he did possess it and disposed of it in the backseat of the police cruiser. Nevertheless, there are a number of areas of broad agreement as to the relevant events.

[20] The witnesses all agreed that Cst. Gill returned Brown’s license to him, cautioned or warned him about making unsafe turns in a residential neighbourhood, and did not give him a ticket. The witnesses also agreed that Cst. Gill removed Frank from the car, hand-cuffed him, and arrested him on the basis of the 52 Division warrant. It was now 5:38 p.m. The only difference in the witnesses’ accounts was as to the exact sequence of these events. Frank recalled that Cst. Gill went first to the driver’s side of the blue Chev Impala and cautioned Brown. He then went to the passenger side and arrested Frank. Cst. Gill, on the other hand, believed that he first arrested Frank and then he returned Brown’s license and cautioned him. Frank also recalled that he was still talking on his cell phone to his lawyer, when Cst. Gill came to arrest him, and that Cst. Gill was upset that he was still on the phone. Frank then offered the phone to Cst. Gill, suggested that he speak to Frank’s lawyer, and Cst. Gill took the phone and ended the call. Cst. Gill was unsure about this aspect of the events but he agreed that Frank may have been back on the phone and he did not deny ending the phone call at a point just prior to the arrest of Frank.

[21] Once Frank was under arrest and was standing at the rear of the blue Chev Impala, the witnesses all agreed that Cst. Gill advised Frank of the warrant and then conducted a search incident to arrest. It was also agreed that the search led Cst. Gill to find $1,349 in cash and a small amount of marijuana in Frank’s front pants pockets. Frank was further arrested for simple possession of the marijuana. Finally, it was agreed that Cst. Gill’s search then moved to the rear buttocks area of Frank’s pants, that he conducted an external pat search in the middle of the buttocks where the legs meet the buttocks, that Frank squirmed or resisted this aspect of the search, and that Cst. Gill repeated it a second time. Frank was then advised of his right to counsel and was placed in the back seat of the police cruiser. It was now 5:43 p.m.

[22] It can be seen that there is substantial agreement about this part of the narrative. The only disagreement is whether Cst. Gill found anything during his twice repeated external pat search of Frank’s lower middle buttocks area (which Frank referred to as his “crack”). Cst. Gill’s account was that he felt a hard object, Frank pulled away quickly, Cst. Gill felt the object a second time and asked Frank what it was. Frank pulled away again and said that it was “nothing” and that he had “hemorrhoids”. Cst. Gill did not get a good feel of the object as it was under Frank’s jeans and underpants and he was pulling away. It was small, hard, and spherical. Cst. Gill did not believe it was a weapon. Cst. Gill guessed that it was drugs but he could not be sure and he thought that it might be something relating to a hemorrhoid condition. He did not believe that he had grounds to search further in this part of Frank’s body, especially by pulling down Frank’s pants on the street, and he knew that he would be able to search beneath Frank’s clothes once they arrived back at the police station.

[23] Cst. Delima was present, at the passenger side of the blue Chev Impala, when Cst. Gill took Frank out of the car, took him to the rear of the car, arrested him on the warrant, and then searched him. Cst. Delima was keeping an eye on Brown in the driver’s seat and did not actually see what happened during the search, although he was peripherally aware that a pat search of Frank was going on to his left at the rear of the car.

[24] Frank testified that there was no cocaine on his person and that “there was nothing there” when Cst. Gill twice ran his hand up between Frank’s legs and “in my crack”. Frank had his hands on the car, with his legs spread apart, and Cst. Gill was behind him. Cst. Gill’s hand came up, after completing a pat search of his legs, and was “in between … my two buttocks cheeks”. Frank was uncomfortable and he moved away. Cst. Gill said, “What are you doing? What is that you got there?” Frank replied “nothing” and Cst. Gill did it again, this time touching the area of Frank’s anus.

[25] Once Frank was placed in the backseat of the cruiser and read his rights to counsel, at 5:43 p.m., there was a thirty minute delay at the roadside. At 6:13 p.m. the police left the scene of the arrest and drove with Frank to 55 Division station. The drive took seven minutes and they arrived at the station garage, or sally port, at 6:20 p.m. There was a further seventeen minute delay at the sally port, while they waited in the police cruiser for the booking sergeant to become available. At 6:37 p.m., the police car entered the sally port and the garage door closed behind them.

[26] There is a dispute in the evidence as to what accounted for the thirty minute delay at the roadside, after Frank’s arrest and before the police cruiser left for the station. All of the witnesses agreed that a third police officer, Sgt. Jeff McDuff, arrived at the scene in his marked cruiser during this period. The witnesses also agreed that Frank was protesting throughout that there was no warrant for his arrest and that the information in the police computer about an arrest warrant was mistaken. Finally, the witnesses agreed that there was a conversation in the cruiser between Cst. Gill and Frank, about whether he could or would provide information to the police in exchange for withdrawal of the charges on which he was arrested. Beyond these three broad areas of agreement, the evidence diverged.

[27] Cst. Gill’s account was that Sgt. McDuff stopped briefly, as he was patrolling the area and heard of the arrest on his police radio. He simply confirmed that everything was under control and then he left. Sgt. McDuff testified in reply and confirmed this account. He was at the scene for no more than five minutes. The two arresting officers already had Frank in custody, everything was in order, and so he left. Both Cst. Gill and Sgt. McDuff denied that they conducted a search of Brown’s car, together with Cst. Delima. This suggestion was never put to Cst. Delima.

[28] Frank gave a very different account. He testified that after he was placed in the backseat of the cruiser, Sgt. McDuff arrived. All three officers left him alone in the cruiser and went to Brown’s car. They removed Brown from the car, searched him, and then thoroughly searched the inside of the car, including the trunk. Frank described it as “tearing the car apart”. Frank agreed that Brown is a friend who he has known for a long time and that Brown “is in custody right now in this building [the Court House] … on some other charges”. Brown was not called as a witness.

[29] Cst. Gill testified that the main reason for the thirty minute delay at the scene was that Frank began telling Cst. Gill, as soon as he was arrested, that there was no warrant and that the arrest was a mistake. Frank was sure that there was no warrant for him for breach of probation. He was quite convincing and seemed to know something about it. He continued to protest about it being a mistake, once they were inside the cruiser, and so Cst. Gill decided to call 52 Division. He wanted to confirm whether the warrant was still outstanding, as indicated on the computer screen. He called on his cell phone, reached 52 Division, and an officer went to search for the warrant. Cst. Gill waited for a period of time, the officer eventually called back and confirmed the warrant, and the officer agreed to bring the warrant to 55 Division station where Frank was to be taken. Cst. Gill’s notes state, “contact 52 Div. who confirm they have warrant”, with a time of 6:11 p.m. noted for this confirmation call. On the video and audiotaped recording of the booking process at 55 Division, Cst. Gill can be seen and heard telling the booking sergeant that he called 52 Division and confirmed the arrest warrant and that it was being brought over to 55 Division.

[30] Frank agreed that as soon as he was arrested on the warrant he told Cst. Gill, “ that couldn’t be, I just got released … I got sentenced and cleared up my warrant … There physically could not be a warrant for me because I just got out of prison [and] just a week ago, tops, I was in a police property place where they have to scan my name … getting my money back”. In his testimony, Frank explained that he had been arrested in late February or early March 2010 for breach of probation and about $2,000 was seized from him at the time of this earlier arrest. He served a short period of custody – about thirty days – and was then released from jail. He retrieved his $2,000 from the police property bureau on April 26, 2010, which was just five days before his arrest on May 1, 2010 in the case at bar. This explained the $1,349 found by Cst. Gill in his pants pockets. Frank agreed that Cst. Gill listened to his protest, to the effect that there was no arrest warrant for him, but Frank insisted that all Cst. Gill did was show Frank the computer screen where it stated that there was an outstanding warrant for his arrest. Frank was sure that Cst. Gill never called 52 Division, to confirm the warrant, while they waited at the scene in the cruiser.

[31] As to the conversation about providing information to the police, both Cst. Gill and Frank agreed that this conversation took place in the cruiser at the scene. They also agreed that the conversation led to Cst. Gill calling an officer at 52 Division named Bosco. The disagreement between the witnesses was over who initiated the conversation. Cst. Gill’s account was that Frank initiated it. Frank said that he knew the location of a gun and he asked whether the police would withdraw the charges in return for this information. Frank told Cst. Gill that an Officer Bosco knew him and would vouch for his reliability and so Cst. Gill called this officer on his cell phone. Officer Bosco told Cst. Gill that he did not know Frank. The discussion of this subject then ended with Cst. Gill advising Frank that he had no authority to make deals but that he would advise D.C. Hutchings at the station of Frank’s offer. Later that evening, at 7:00 p.m. according to his notes, Cst. Gill took Frank up to the Detectives Office at the 55 Division station and told D.C. Hutchings about Frank’s offer to provide information. D.C. Hutchings called the Guns and Gangs Task Force and they came and spoke to Frank.

[32] Frank’s account of this conversation was that it was entirely initiated by Cst. Gill and that Frank had never offered to give information to the police in return for withdrawal of his charges. He testified that Cst. Gill said, “give me a gun, give me drugs, give me anything right now and I can let you go right now from here”. Frank replied that he was “not involved in that stuff no more, I’m tired of jail, I’ve changed my life”, and that he could not provide any information. Cst. Gill then asked Frank whether he knew Officer Bosco and whether Bosco would say that “you’re a good guy”. Frank knew Officer Bosco and he told Cst. Gill that Bosco “would have no reason to tell you that I’m a bad guy”. As a result, Cst. Gill called Officer Bosco. When he got off the phone, Cst. Gill told Frank that he had never provided any information to Bosco. Cst. Gill told Frank that he was going to jail and drove him to the station. Frank agreed that later that night, at the 55 Division station, an officer from the Guns and Gangs Task Force came to see him. The officer told him, “you give me a gun with a body right now and you can go home”.

[33] The final area of evidence relates to the finding of the ounce of crack cocaine in the backseat of the police cruiser. This event is captured on the sally port video and audiotape. It shows Cst. Gill removing Frank from the rear passenger side seat, handing him over to Cst. Delima, and then going back into the place where Frank had been seated and finding the bag of crack cocaine. Cst. Gill and Cst. Delima testified that these searches are routine, both at the start of each shift and after removing a prisoner. They both testified that they started their shift at 4:00 p.m. After parading before their sergeant and being given their assignment, they went to the cruiser and searched it. The purpose of the search was to ensure that all equipment was working, that there was no damage, and that there was nothing in the backseat that could be used as a weapon. They removed the bench portion of the seat, which pulls forward, banged and shook the back of the seat to dislodge anything behind it, and then checked the floor area of the backseat. They found nothing. Frank was the first prisoner arrested and placed in the backseat during their shift. Neither Cst. Delima nor Cst. Gill kept an eye on Frank, while he was in the backseat, and neither officer saw him dispose of anything. The search procedures, after removing Frank from the backseat, were same as at the start of the shift. Cst. Gill can be heard, on the sally port video and audiotape, banging or shaking the backseat just before he emerged from the back passenger side door with the bag of crack cocaine.

[34] Cst. Gill agreed that the reason for this routine procedure is because objects can be secreted behind the back portion of the backseat. There is a crack or seam between the bench, which pulls forward, and the back, which is fixed. You can reach your hand into the crack and place an object into a small space that is located a few inches up and behind the back portion of the seat. In this case, the bag of cocaine dropped out easily when Cst. Gill shook the back portion of the seat. It was located immediately behind where Frank was seated, that is, where his hands would have been located.

[35] Cst. Gill held the bag up to Frank, after emerging from the backseat. There was an exchange of words that is not clear from the audiotape. The two officers testified that Cst Gill asked, “is this yours” or “what’s this” and Frank replied “no” and then said “oh my” or “my God”. Frank can be seen on the videotape, apparently sighing and leaning or stepping back against the garage wall with his head tilted back, in a gesture that could be interpreted as resignation or defeat.

[36] Frank was then paraded before the booking sergeant at 6:40 p.m. Once again, this part of the events is all video and audio taped. Cst Gill can be seen holding the bag of crack cocaine in his left hand. He is wearing blue plastic gloves which he had put on prior to the search of the backseat. Cst. Gill advised the booking sergeant that he searched the backseat and found the bag of crack cocaine “tucked under the seat right below where he [Frank] was sitting”. Cst. Gill proceeded to place all of Frank’s seized property, in particular the money, on the counter in front of the booking sergeant. Cst. Gill briefly put the bag of cocaine on the counter but then took it back with his left hand and put it in his left pants pocket. The booking sergeant began to count the money while Frank and the arresting officers stood in front of her.

[37] At about 6:43 p.m., Cst. Gill began to look at his gloved left hand. He testified that it was at this point that he started to realize or suspect that there was feces on his glove. At 6:45 p.m., Cst. Gill again looked at his gloved left hand. He testified that at this point he became sure that there was feces on the glove. He can be seen reaching into his left pants pocket, pulling out the bag of crack cocaine, and looking at it. It was a clear plastic bag. Cst. Gill testified that he saw yellowish brown smears or streaks on the outside of the bag. There was not a lot of fecal material on the bag and Cst. Gill did not smell it immediately upon seizure. It was watery, soft or liquid-like and it had a smell of feces. Cst. Delima confirmed that he saw and smelled a slimy brown material on the outside of the clear plastic bag. He concluded that it was fecal material, based on the smell and appearance.

[38] At 6:45 p.m., the officers removed Frank from the booking area. At 6:46 p.m., Cst. Gill can be seen returning to the booking area, putting the plastic bag of crack in a fresh plastic exhibit bag, removing his blue plastic gloves, putting them in the garbage can, and obtaining a new pair of gloves. He can be heard telling the booking sergeant that the plastic bag has “feces” on it. The officers conducted a full strip search of Frank and found nothing on his person. There was nothing in the buttocks area that would account for the object that Cst. Gill had felt during the pat search at the time of the arrest.

[39] The crack cocaine was removed from the plastic bag and weighed. A sample was taken and sent for testing. It tested as cocaine. The plastic bag was thrown away as it was not sanitary. Cst. Gill agreed that the plastic bag was never tested for fingerprints or DNA. He did not believe that the charge was serious enough to be able to obtain DNA testing.

[40] Cst. Gill testified at the preliminary inquiry before he viewed the booking video. He testified that he got fecal material on his hands, that he washed them, and then he put on gloves. He testified that he was quite upset about getting feces on his hands. Once the booking video was played to him, at the preliminary inquiry, he realized his mistake and acknowledged that he did not get feces on his hands but rather on his gloves. He did wash his hands afterwards and he was upset at getting feces on the gloves. But he was clearly wearing gloves throughout and he changed the gloves, once he realized he had feces on them.

[41] When Frank testified, he acknowledged a lengthy criminal record. He is now twenty-six years old. He had one conviction in Youth Court for carrying a concealed weapon, in 2004 when he had just turned eighteen. The rest of his convictions were as an adult, between 2004 and 2011. There were twenty-four separate occasions when he was convicted and sentenced, often for multiple offences. His convictions included the following: assault (two convictions), mischief, theft, fail to appear (two convictions), obstruct police (two convictions), fail to comply with a recognizance or with probation (twelve convictions), and trafficking cocaine or possession of cocaine for the purpose of trafficking (eight convictions).

C. LAW

(i) The s. 9 and s. 8 Charter issue

[42] The Applicant Frank submits that he was “detained”, within the meaning of s. 9 of the Charter, in the course of his interaction with Cst. Gill and Cst. Delima during the motor vehicle stop. He further submits that, once “detained”, the police request for his identification was a “search and seizure” within the meaning of s. 8 of the Charter. He concedes that any “detention” was lawful, as an incident of the Highway Traffic Act (hereinafter, H.T.A.) investigation of the driver Brown, but submits that the “search” was without any lawful authority and, therefore, violated s. 8.

[43] Frank’s position, as summarized above, is based on the leading authority in this province concerning the detention and investigation of passengers during lawful motor vehicle stops. See: R. v. Harris (2007), 2007 ONCA 574, 225 C.C.C. (3d) 193 (Ont. C.A.). Like the case at bar, Harris was a case where the police had valid H.T.A. grounds to stop and investigate the driver of the vehicle. It was not a random “check stop” where there was a s.9 violation and where the investigation of the driver was, therefore, subject to strict s. 1 limits as set out in cases like R. v. Ladouceur (1990), 1990 CanLII 108 (SCC), 56 C.C.C. (3d) 22 (S.C.C.) and R. v. Mellenthin (1992), 1992 CanLII 50 (SCC), 76 C.C.C. (3d) 481 (S.C.C.). The issue in Harris, as in the case at bar, was whether the passenger was detained and whether asking for his identification, in order to conduct a computer check of his name, violated s. 8 of the Charter.

[44] The trial judge in Harris found that the passenger was subject to a psychological detention, based on the particular facts of the case. She particularly relied on the fact that the officer who stopped the car had concerns for his safety, due to certain movements he had observed in the car. As a result, the officer had “ordered everyone in the car to keep their hands where he could see them”. Doherty J.A., giving the unanimous judgment of the Court of Appeal on the s. 9 issue, agreed with the trial judge on this point. He emphasized, however, that the question of whether a passenger is detained during an H.T.A. vehicle stop “demands a fact-specific inquiry”.

[45] Applying Doherty J.A.’s “fact-specific” approach, a number of subsequent decisions have held that passengers were not detained during H.T.A. vehicle stops. See: R. v. Bradley (2008), 2008 NSCA 57, 233 C.C.C. (3d) 129 (N.S.C.A.); R. v. Johnson, 2010 ONSC 1490, [2010] O.J. No. 975 (S.C.J.); R. v. Yousofi and Safi, 2011 ONSC 2298; R. v. Humphrey (2011), 2011 ONSC 3024, 237 C.R.R. (2d) 109 (Ont. S.C.J.).

[46] The burden of establishing that Frank was “detained” for s. 9 purposes falls on the Applicant. See: R. v. Bush (2010), 2010 ONCA 554, 259 C.C.C. (3d) 127 at para. 74 (Ont. C.A.); R. v. B.(L.) (2007), 2007 ONCA 596, 227 C.C.C. (3d) 70 at para. 60 (Ont. C.A.). On the particular facts of the present case, I am not satisfied that Frank has proved on a balance of probabilities that he was “detained” at the time of the motor vehicle stop.

[47] It is well established that merely asking a suspect for identification does not give rise to a detention. This was the only investigative question that the police asked Frank. They did not question him about any suspected criminal activity and so there was no “focused interrogation amounting to detention”. Frank testified that he was not concerned about giving his name to the police. This part of the interaction between Cst. Gill and Frank could not possibly form the basis for a finding of “detention”. See: R. v. Grafe (1987), 1987 CanLII 170 (ON CA), 36 C.C.C. (3d) 267 (Ont. C.A.); R. v. Hall (1995), 1995 CanLII 647 (ON CA), 22 O.R. (3d) 289 at 295 (Ont. C.A.); R. v. Harris, supra at para. 42; R. v. Mann (2004), 2004 SCC 52, 185 C.C.C. (3d) 308 at para. 19 (S.C.C.); R. v. Grant (2006), 2006 CanLII 18347 (ON CA), 209 C.C.C. (3d) 250 at paras. 13 and 29 (Ont. C.A.), aff’d 2009 SCC 32, 245 C.C.C. (3d) 1 at paras. 6-7 and 37-52 (S.C.C.).

[48] The other circumstance arising from Cst. Gill’s interaction with Frank, that is said to give rise to a “detention”, is the fact that Cst. Gill twice told Frank to end his cell phone call. I do not accept Frank’s testimony to the effect that this order from the police caused him to be “afraid” and to feel that he had to “sneak” a second call to his lawyer. On the contrary, Frank was open and assertive about the fact that he was on the phone to his lawyer and he invited Cst. Gill to speak to his lawyer. This action by the police, interrupting his call to his lawyer, was little more than a temporary inconvenience to Frank. It did not interfere with his freedom of movement, he understood that the reason for the police direction was officer safety, and he immediately resumed the cell phone call once the officers left. I did not understand Frank to say, during his testimony, that the brief interruption of his telephone call led him to believe that he was not free to leave. This circumstance could not possibly rise to the level of a “significant deprivation of liberty”, as required by the modern authorities concerning the meaning of “detention”. See: R. v. Suberu (2009), 2009 SCC 33, 245 C.C.C. (3d) 112 at paras. 23-35 (S.C.C.).

[49] Frank testified that there was one circumstance which caused him to feel that he was not free to leave. This was Cst. Delima’s request to “please keep your hands visible” and Cst. Delima’s position, standing at the passenger door of the car, which Frank described as “blocking off my door” so that “I couldn’t leave”. I am not satisfied that this circumstance actually happened or, if it did happen, that it gave rise to a “detention” for the following reasons:

• First, Cst. Gill and Cst. Delima both walked away from the blue Chev Impala, got into their police cruiser, and left Frank and Brown alone in the front passenger seat of their own car. The two officers and the two civilians remained apart, in their separate cars, for a few minutes. This is not consistent with a “detention” and it indicates that any “blocking” of the front passenger door must have been temporary and brief;

• Second, Frank agreed that Cst. Delima spoke in a “nice” manner and said “please” when he asked Frank to keep his hands visible. The whole tenour of their interaction does not sound like one where Frank could reasonably believe that Cst. Delima was significantly interfering with his freedom to leave;

• Third, and most importantly, this one circumstance was the most significant aspect of Frank’s “detention” evidence and yet it was never put to Cst. Delima in cross-examination. It was completely missing from the Applicant’s Rule 31.05(1)(d) “statement of anticipated evidence” and so neither the Crown or the defence dealt with the issue when examining Cst. Delima. When explaining this rather significant omission, Mr. Webster frankly conceded that he did not anticipate this aspect of the Applicant’s evidence. In all these circumstances, it appears that Frank’s evidence on this point is a recent invention. Furthermore, it is a recent invention that Cst. Delima has not been asked to respond to and so I have no evidence from him on the point.

[50] For all these reasons, I was not satisfied that Frank was “detained” in the front passenger seat during the motor vehicle stop. Absent a “detention”, the law is clear that merely asking for identification does not constitute a s. 8 “search or seizure”. In R. v. Harris, supra at paras. 33-44, Doherty J.A. repeatedly stressed that asking for identification only engages s. 8 Charter interests when the subject of the request is detained:

Answers to police questions may or may not give rise to a s. 8 claim. As with other aspects of the s. 8 inquiry, a fact-specific examination of the circumstances is necessary. Where the subject of the questioning is under police detention and reasonably believes that he or she is compelled to provide the information sought in the questions, I do not think it distorts the concept of a seizure to describe the receipt of the information by the police as a non-consensual taking of that information from the detained person.

A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police: R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.). In the circumstances, Harris’s identification in response to the officer’s question constitutes a seizure and attracts s. 8 protection. [Emphasis added.]

[51] In the case at bar, Frank was not “detained” when he was asked for identification. In these circumstances, Doherty J.A. held in Harris, supra at para. 42, that the Grafe line of authority applies and the police may “properly request identification” without engaging either s. 8 or s. 9 of the Charter.

[52] Given that there was no s. 8 violation, it is not necessary to reach s. 24(2) of the Charter. I note that one unusual feature of this case is that the cocaine in the backseat of the police cruiser had clearly been abandoned by whoever left it there. Accordingly, Mr. Webster conceded that the Applicant Frank had no standing to seek exclusion of the cocaine on the basis of any s. 8 violation arising at the time of the seizure. See: R. v. B.(L.), supra; R. v. Nesbeth (2008), 2008 ONCA 579, 238 C.C.C. (3d) 567 (Ont. C.A.); R. v. Plummer (2011), 2011 ONCA 350, 272 C.C.C. (3d) 172 (Ont. C.A.). Mr. Webster’s submission was that the only s. 8 violation was the asking of the one question, concerning Frank’s identification, and that the Crown’s circumstantial evidence flowed from that violation. He sought the exclusion of the circumstantial evidence. Given that Frank was not concerned about providing his name to the police, it would be difficult to conclude that asking this one question amounted to serious state misconduct or that it interfered significantly with Frank’s s. 8 Charter interests. However, since I have found no violation of s. 8 of the Charter, I need not address the s. 24(2) issue by applying the three sets of Grant factors.

(ii) The merits of the case

[53] The Crown’s case, alleging that Frank was in possession of the bag of crack cocaine found in the back seat of the police cruiser, is entirely circumstantial. Accordingly, the inference of guilt must be the only rational inference from the primary facts. See: R. v. Cooper (1978), 1977 CanLII 11 (SCC), 34 C.C.C. (2d) 18 at 33 (S.C.C.); R. v. Elmosri (1985), 1985 CanLII 3545 (ON CA), 23 C.C.C. (3d) 503 at 506 (Ont. C.A.); R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 at 303 (S.C.C.).

[54] The first step in a circumstantial case is to determine which primary facts have been proved. The second step is to determine which rational non-speculative inferences flow from the primary facts. See: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 at 31-2 (S.C.C.); R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 at 209 (Ont. C.A.).

[55] The parties agree that the primary facts in the case at bar, on which the Crown relies to infer that Frank was in possession of the crack cocaine, are as follows:

• the search of the backseat area of the police cruiser by the two officers, at the start of their shift, which did not dislodge any drugs from the small space behind the backseat;

• the fact that Frank was the first prisoner on the shift who was arrested and placed in the backseat of the cruiser;

• the pat search of Frank’s buttocks area, upon arrest, leading to Cst. Gill’s discovery of a suspicious object underneath Frank’s jeans and underwear;

• Frank’s location, seated on the passenger side of the backseat, in the area where the drugs were found;

• the search of the backseat of the cruiser, immediately after Frank was removed, and the finding of the drugs;

• Frank’s reaction to the finding of the drugs, as heard and depicted on the sally port video and audiotape, which could be interpreted as signifying defeat or resignation;

• the observation by the officers that there was feces on the plastic bag containing the crack cocaine;

• the fact that nothing was found in the area of Frank’s buttocks, when he was strip searched at 55 Division after being booked.

[56] The defence attacks the strength of some of the above eight circumstances. In addition, the defence relies on Frank’s own evidence in which he asserted that he was not in possession of the crack cocaine and denied having any object in the area of his buttocks when Cst. Gill conducted the pat search on arrest. This defence evidence, of course, must be assessed in accordance with the well known principles set out in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and in R. v. D.(B.) (2011), 2011 ONCA 51, 266 C.C.C. (3d) 197 (Ont. C.A.). Mr. Webster submits that Frank’s denial was credible and ought to be believed. In the alternative, he submits that Frank’s denial at least raises a reasonable doubt when considered with all the other evidence. Finally, he submits that even if Frank’s denial is completely disbelieved, the Crown’s circumstantial evidence is not sufficiently compelling to prove guilt beyond reasonable doubt.

[57] I do not attach much weight to the sixth primary fact set out above, concerning Frank’s reaction in the sally port immediately after the crack cocaine was found. It is true that his body language could be interpreted as acknowledging defeat, as the police interpreted it, but it could also infer exasperation or resignation. The cause of the exasperation or resignation is unclear because the words spoken are not clear. It is a very subjective piece of evidence and I attach little or no weight to it.

[58] Mr. Webster’s attacks on the other primary facts are less persuasive. He speculates that the officers failed to find or dislodge the cocaine, left by some earlier prisoner on some earlier shift, when they searched the backseat area at the start of their shift. However, this submission also presupposes that the officers who removed the earlier prisoner on the earlier shift also failed to search effectively, after removing their prisoner. In other words, the defence theory concerning some earlier prisoner abandoning the cocaine in the backseat area, requires at least two ineffective or negligent police searches before the third search finally discovered the abandoned drugs.

[59] Mr. Webster’s attack on Cst. Gill’s evidence, concerning the pat search of Frank’s buttocks on arrest and the discovery of the suspicious object, relies on three distinct points. First, he notes Cst. Delima’s failure to observe the pat search and/or the finding of the suspicious object by Cst. Gill. Second, he relies on the fact that Cst. Gill did not tell Cst. Delima about the suspicious object and did not instruct Cst. Delima to keep an eye on Frank in the backseat. Finally, he submits that Cst. Gill would have immediately seized the suspicious object at the roadside, if all the circumstances were as described by Cst. Gill. While there is some force to these submissions, they do not cause me to doubt Cst. Gill’s account on this point. Cst. Delima’s testimony makes sense, that he was keeping an eye on the driver Brown at this stage, who was the subject of a caution that the officers had by now seen on CPIC. As a result, Cst. Delima was only peripherally aware of the pat search of Frank. Although it would have been better if at least one of the officers had kept an eye on Frank in the backseat, they were both young and inexperienced and the disposal of contraband in the backseat of a police cruiser, while handcuffed, must be a rare occurrence. Finally, the suggestion that Cst. Gill would and should have seized the suspicious object at the roadside is an invitation to act unlawfully. Cst. Gill did not believe that the object was a weapon and he could not lawfully search beneath Frank’s clothing at the roadside. He showed a real appreciation of the limits of his common law powers. See: R. v. Golden (2001), 2001 SCC 83, 159 C.C.C. (3d) 449 (S.C.C.).

[60] What is more significant, in evaluating Cst. Gill’s account of the pat search at the roadside, is that the other evidence tends to corroborate it. Frank’s own testimony described Cst. Gill as searching twice in the “crack” of his buttocks, including at the anus, and asking Frank “what have you got there”? This tends to infer that Cst. Gill had found something. Furthermore, the feces on the outside of the bag also infers that the bag was hidden in the area of the anus, underneath both pants and underpants. Mr. Webster submits that the odour of feces could not have been strong, as it took a while before Cst. Gill discovered it. However, this is simply a reflection on the quantity and the freshness of the feces. There is no question that there was feces on the plastic bag.

[61] I am satisfied that the Crown has proved seven of the eight primary facts. The remaining issue is the cogency of the inference that the Crown seeks to draw from those seven facts. Before turning to that question, however, I must assess the credibility of Frank’s denial of possession of the crack cocaine. If that denial is believed, or if it raises a reasonable doubt when combined with the other evidence, then there must be an acquittal.

[62] I do not believe Frank’s denial of possession of the crack cocaine, nor does it leave me in a state of uncertainty such that it could give rise to or contribute to a finding of reasonable doubt, for the following reasons:

• First, his significant criminal record is cause for concern;

• Second, as noted earlier in these reasons, I do not believe his assertion that Cst. Delima told him to keep his hands visible and blocked his exit from the car. Indeed I am satisfied that this part of Frank’s story is a recent invention. His related assertions, that he was “afraid” of the police and had to “sneak” a call to his lawyer, are also contradicted by his own account, wherein he openly talked on the phone in Cst. Gill’s presence, while arguing or negotiating with the police about whether they should speak to his lawyer. In short, there were a number of falsehoods in his evidence relating to the Charter issue;

• Third, I do not believe Frank’s account of what happened during the thirty minute delay while he was seated in the police cruiser, after his arrest on the warrant. I am satisfied that this part of his story is riddled with improbabilities and further falsehoods. Sgt. McDuff and Cst. Gill credibly contradicted Frank’s allegation that the three officers thoroughly searched Brown’s car, “tearing it apart”. Brown was available at the Court House and he was not called as a witness to confirm this allegation. In addition, the allegation was never even put to Cst. Delima. Frank’s assertion that Cst. Gill did not call 52 Division to confirm the warrant, while they waited in the car, is equally untrue. Cst. Gill made a contemporaneous note of doing this and he informed the booking sergeant that he had done it. I am satisfied that Cst. Gill’s account is honest and reliable on this point. Finally, Frank’s denial of offering to provide information to the police, and his insistence that Cst. Gill initiated this discussion and that he rebuffed it, makes no sense. Cst. Gill had no authority, as a very junior 55 Division uniform patrol officer, to bargain away 52 Division’s arrest warrant. He could not possibly have said, “give me anything right now and I can let you go right now from here”. It is also improbable that an officer from the Guns and Gangs Task Force would have come down to 55 Division, in order to meet with Frank and discuss this matter late at night, if it was Cst. Gill who had initiated and pressed the request for information and if Frank had rebuffed it. In short, Frank’s entire account of what happened during this thirty minute period is simply not true and Cst. Gill’s account is credible;

• Fourth, the cogency of the seven primary facts, and the circumstantial inference arising from those facts, weighs against Frank’s denial. I will turn to that evidence in a moment but it is now settled law that acceptance of conflicting evidence is a proper basis for rejecting an accused’s account. As Doherty J.A. put it in R. v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 at para. 53 (Ont. C.A.), speaking on behalf of the Court:

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

Also see: R. v. M. (R.E.) (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 at para. 66 (S.C.C.).

[63] It can be seen that Frank’s testimony was characterized by repeated falsehoods and that there is a body of cogent circumstantial evidence that contradicts him. The seven primary facts proved by the Crown satisfy me beyond reasonable doubt that he was in possession of the bag of crack cocaine. The finding of the bag, immediately after Frank was removed from the police cruiser, in the location where he was seated, is a strong piece of evidence on its own. The officers searched this area at the start of their shift and found nothing and Frank was the first prisoner who they placed in the back seat. These facts alone could support a finding of guilt. The inference of guilt becomes overwhelming when the further facts are added in, particularly, Cst. Gill’s discovery of the suspicious object during the pat search of Frank’s buttocks area, Cst. Gill’s discovery of feces on the bag, and the strip search of Frank which revealed nothing in his buttocks area. There is simply no reasonably possible inference, consistent with innocence, that can be drawn from these facts. The convergence of all seven circumstances cannot be a coincidence and they lead to only one rational inference, namely, that Frank was in possession of the bag of crack cocaine found in the back seat of the cruiser.

D. CONCLUSION

[64] For all these reasons, I am satisfied that the Crown has proved guilt beyond reasonable doubt on Count 1, which charges possession of cocaine for the purpose of trafficking. Count 2, which charges simple possession of the same cocaine, is a lesser included offence in Count 1 and it should be stayed as it is entirely duplicative of Count 1.

[65] Count 3 alleges that the $1,349 seized from Frank on May 1, 2010 was the proceeds of drug trafficking. While this might normally be a reasonable inference from the proved facts in this case, Frank has advanced a persuasive innocent explanation for his possession of the money. As noted above, he testified that about $2,000 was seized from him in late February or early March 2010, when he was arrested for breach of probation, and that the money was returned to him on April 26, 2010 after he had served a short period of time in custody. This would have been five days before his arrest on the present charges.

[66] The Crown looked into the matter during Frank’s testimony and made an admission at the end of the trial that Frank had, indeed, been arrested by a Cst. Blacklaw on March 15, 2010 and $1,956.23 was seized from him. The Crown also admitted that the money was returned to Frank on April 26, 2010 when he attended at a police station. Given these facts, Ms. Bellerose fairly conceded that the Crown had not proved guilt beyond reasonable doubt on Count 3. I agree with the Crown’s concession. Frank is not guilty on the “proceeds” count and the seized money should be returned to him.

[67] I note, however, that these admitted facts concerning Frank’s recent time in custody and his recent attendance at a police station, shortly before his arrest on the present charges, work against his credibility in other areas. It will be recalled that Cst. Gill testified that Frank persuasively and repeatedly argued that there could not possibly be an outstanding warrant for his arrest. As Cst. Gill put it, Frank seemed to know what he was talking about and so Cst. Gill took the time, at the roadside, to call 52 Division and to wait for confirmation of the warrant, before taking Frank in to the 55 Division station. It can be seen that Frank had a strong basis for believing that the information in the police computer was mistaken, as it sometimes is. He had recently been released from custody and had recently attended at a police station, and there had been no “hold” on him at that time. This part of Cst. Gill’s evidence is, therefore, confirmed by the facts relating to the “proceeds” count that were eventually admitted by the Crown at the end of the trial. Frank, of course, denied that Cst. Gill ever took the time to phone 52 Division and confirm the warrant, while they waited at the roadside. Instead, he invented two stories about the three officers “tearing apart” Brown’s car and about Cst. Gill offering to somehow withdraw the 52 Division charge in return for information.

[68] The admitted facts relating to the “proceeds” count, therefore, tend to further confirm my findings of credibility concerning both Frank and Cst. Gill.

[69] In the result, there will be a conviction on Count 1, a stay will be entered on Count 2, and there will be an acquittal on Count 3.

M.A. Code J.

Released: November 8, 2012

COURT FILE NO.: CR-12-90000253-0000

DATE: 20121108

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DAMIAN FRANK

REASONS FOR JUDGMENT

M.A. Code J.

Released: November 8, 2012

Her Majesty the Queen v. Damian Frank, 2012 ONSC 6274

Case Summary

REASONS FOR JUDGMENT

A. OVERVIEW

B. FACTS

(ii) The facts relating to the s. 9 and s. 8 Charter issue

(ii) The facts relating to the merits of the case

C. LAW

(i) The s. 9 and s. 8 Charter issue

(ii) The merits of the case

D. CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 4