COURT FILE NO.: CR-12-90000438-0000

DATE: 20130301

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ATHOL HAYE

Andrew Nisker, for the Crown

John Struthers, for the Defendant

HEARD: February 19 and 20, 2013

M.A. CODE J.

reasons for judgment

A. OVERVIEW

[1] The accused Athol Haye (hereinafter, Haye) is charged in a two count Indictment with possession of crack cocaine for the purpose of trafficking and possession of proceeds of crime. He elected trial by judge alone. The trial was conducted very efficiently, in less than two days, because counsel made realistic admissions and focused on the one live issue in the case. I am grateful to both counsel for the responsible way in which they conducted the trial.

[2] The one live issue in the case is whether there was a violation of ss. 8, 9, and 10 of the Charter of Rights, at the time of Haye’s arrest and search incident to the arrest. As a result of Haye’s arrest and search, the police discovered just over fifty grams of crack cocaine on his person. It is conceded that this is a commercial trafficking quantity of crack cocaine. In addition, the police found $437 in cash.

[3] The trial on the merits and the Charter Motion were heard together, in a blended fashion. It is agreed by the parties that Haye is guilty of possession of the crack cocaine for the purpose of trafficking, if the cocaine seized by the police is admitted in evidence. It is also agreed that Haye is not guilty on this count, if the cocaine is excluded from evidence pursuant to s. 24(2) of the Charter. Finally, it is agreed that the Crown has not proved that the $437 is “proceeds of crime”, regardless of the result of the Charter Motion.

[4] The issue on the Charter Motion is whether the police had proper grounds to arrest Haye. It is agreed by the parties that Haye was lawfully stopped and investigated for a by-law offence, when he was observed entering the Islington subway station in the west end of Toronto. He admittedly entered the station through a “bus only” driveway, rather than through the proper pedestrian entrance, and this conduct admittedly violated a by-law. However, the by-law stop escalated into a criminal law arrest and search for drugs. The arresting officer, P.C. Paul Regan, testified that he observed Haye moving a package from his jacket pocket to his rear waistband, during the by-law ticketing investigation, and that the package appeared to contain drugs. This observation provided the officer with proper grounds for arrest. Haye testified that he did no such thing and that the officer arrested and searched him after confirming that he was on federal parole and for no other reason. No one else directly witnessed this incident and it either did or did not provide grounds for the arrest, depending on which version of events is believed. Aside from the two direct witness accounts, there is some surrounding circumstantial evidence from a second police officer.

[5] It can be seen that the Charter issue raises a stark conflict of credibility. The defence theory is that P.C. Regan has fabricated his grounds, in order to cover up a blatantly false arrest that was based on no grounds at all. The Crown theory is that Haye is lying in order to advance his only defence, namely, that his Charter rights were violated.

[6] Given the above way in which the Charter issue is framed, there is no real disagreement between the parties that the evidence of the cocaine seizure should be excluded, if the defence succeeds in making out the Charter violation that is alleged. I agree with this position. If it is demonstrated, on a balance of probabilities, that P.C. Regan had no grounds for the arrest, and that he fabricated the grounds ex post facto, once he had discovered the drugs, then the breach would be so serious that s. 24(2) of the Charter would require exclusion of the evidence. See: R. v. Harrison (2009), 2009 SCC 34, 245 C.C.C. (3d) 86 (S.C.C.).

[7] In terms of the various burdens on the Charter Motion, the parties agree that the s. 8 search was warrantless and so there is an initial burden on the Crown to establish a lawful basis for the search. The Crown met this burden by establishing that Haye was under arrest for possession of cocaine at the time and that the police relied on common law powers to search for drugs incident to the arrest. See: R. v. Caslake (1998), 1998 838 (SCC), 121 C.C.C. (3d) 97 (S.C.C.). The real issue then became whether the s. 9 arrest was lawful. It is agreed that the burden is on Haye to establish, on a balance of probabilities, that P.C. Regan lacked reasonable grounds to make the arrest and thereby violated s. 9. I agree with this analysis of the respective burdens and that it is, therefore, the s. 9 violation that is critical to the case. 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.)..

B. FACTS

(i) The accused Haye’s evidence

[8] Haye filed a properly particularized Notice of Application, in support of the Charter Motion, and in compliance with Rule 31 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario). However, he did not file the “detailed summary of the evidence” and “statement of anticipated evidence in sufficient detail”, also required by Rule 31. Accordingly, it was agreed that Haye would testify first on the blended trial and Charter Motion, thus giving the Crown some notice of his account of the alleged Charter breach, prior to the Crown then calling the two police officers.

[9] Haye’s account was that he had been visiting a friend who lived near Bloor and Islington in the west end of Toronto. He did not know the friend’s name or address except that he was known as Tony. As already summarized above, Haye acknowledged that he unlawfully entered the Islington bus and subway station through the bus driveway entrance off Bloor Street. It was March 18, 2011 and it was cold and snowy. He was on foot and he wanted to catch a bus to his home in Mississauga. He knew that the proper Mississauga Transit bus stop and shelter was a short distance to the west along Bloor Street. However, he also knew that the Mississauga buses entered the Islington Toronto Transit Commission (T.T.C.) station and picked up T.T.C. passengers inside the covered bus bays. He walked into the bus bay area of the station and waited on the street level platform, in order to get out of the cold. He intended to pay the $3.50 bus fare on the bus, once it arrived, which is the normal way to pay the bus fare. He did not go downstairs into the lower concourse area that leads to the T.T.C. subway train platforms. He had no intention of taking a T.T.C. train into downtown Toronto.

[10] A police officer, P.C. Regan, approached Haye as he waited for the bus and advised him that he had unlawfully entered T.T.C. property. The officer asked for identification and Haye produced his federal parole photo identification card, which he is required to carry, together with his parole “sign-in sheet”. He gave these documents to the officer. The terms of Haye’s parole required him to live at his family’s residence at 894 Kennedy Road in Scarborough, to report twice a week, and to always carry the above parole card and “sign-in sheet”. He was admittedly not carrying a wallet with any other identification.

[11] Haye had been convicted on March 11, 2009 of possession of a scheduled substance for the purpose of trafficking and he was sentenced to three years imprisonment. He had a previous conviction for the same offence, some fifteen years earlier in 1994, for which he had received fifteen months imprisonment. He was now forty years old and he had been granted parole in November, 2009. At the time of the by-law stop, on March 18, 2011, he was at the two year point of his three year sentence. He was admittedly carrying almost two ounces of crack cocaine on his person.

[12] Haye commented to P.C. Regan that other pedestrians had entered the bus bay unlawfully, at the same time as he did, and he wondered why they were not being stopped. Haye advised P.C. Regan that he would pay the bus fare once he got on the bus. The entire conversation between Haye and the police officer, about the by-law infraction and about providing his identification, took place on the bus bay platform at street level.

[13] Once Haye had given P.C. Regan his parole card identification, the officer escorted him down the staircase from the bus platform to the lower concourse area inside the T.T.C. station. He was not advised of his s. 10(b) Charter rights. The officer asked him to sit on a bench in the waiting area of the concourse level. Haye complied and sat on a bench. The officer then placed a call over his police radio, advising the dispatcher of Haye’s name and of his parole status. Haye denied being nervous or worried while seated on the bench, and he denied being fidgety or sweating. He simply expected that the officer would write him a ticket for the by-law infraction and he would be on his way. He did not expect to be arrested and he did nothing to show the officer that he was carrying drugs, such as by moving their location on his person.

[14] P.C. Regan received a call back on his police radio, confirming that Haye was a federal parolee. Haye heard this radio report while he continued to sit on the bench. Upon receiving the radio report, P.C. Regan immediately told Haye to stand up and turn around. Haye complied and P.C. Regan handcuffed him and then called for back-up. Haye was not advised of either his s. 10(a) or s. 10(b) Charter rights. P.C. Regan did a quick pat search and pocket search but found nothing. He told Haye to once again sit on the bench, now in handcuffs, while waiting for the back-up to arrive. Haye complied and sat on the bench.

[15] Two more police officers arrived, in about a minute, and the three officers then took Haye to a private office in the T.T.C. station. They removed his clothes and found the drugs during this further more thorough search in the T.T.C. office.

[16] When asked during examination-in-chief as to where he was carrying the drugs, Haye replied “in a pocket”. When asked which pocket, he replied that he did not recall the specific pocket. He was wearing a short waist length jacket with pockets in the sides, jeans with pockets in the front, and a hoody underneath the jacket. The crack cocaine was white and it was in a clear plastic bag.

[17] In cross-examination, Haye changed or corrected this evidence as to the location of the drugs. He testified that the drugs were never in a pocket. Rather, they were in the front waistband area of his boxer underwear, with his belt securing his jeans over the area where the drugs were located. He agreed that this was a temporary place to hide and carry the drugs, for no more than about an hour. There was no real reason for putting the drugs in this location. He explained that he “just put it there, just because”. When the police did the second more thorough search, in the T.T.C. office, they either found the drugs in his waistband or the drugs fell to the floor when the police dropped his pants. He could not recall exactly how the police discovered the drugs.

[18] Haye testified that his parole card and “sign-in sheet” were never returned to him by the police. When he was transported to the police station and booked in, while being video tape- recorded, the parole card and “sign-in sheet” were not placed with his property. The police must have kept these items. Haye agreed that he told the police that he was living at the 894 Kennedy Road address in Scarborough. This was the address where he was required to live, according to the terms of his parole. He did not want the police or the parole authorities to know about the residence in Mississauga where he had been living.

[19] Haye knew that his parole would be revoked if he was caught carrying drugs. That is why he would never show the drugs to the police and provide them with grounds for his arrest.

(ii) The evidence of P.C. Regan

[20] P.C. Regan had been a Toronto police officer for five years at the time of the relevant events, on March 18, 2011. He was working in plainclothes, with two other officers, in what is known as the Transit Patrol Unit. They patrol the T.T.C. system, proactively looking for cases of fare evasion, as well as responding to calls about incidents on the T.T.C. He was familiar with the Islington bus and subway station as he had done many investigations at that particular station.

[21] There are three separate levels at the Islington bus and subway station. The bus bays and platforms are located on the street level, where T.T.C. passengers board buses and disembark from buses. Mississauga Transit also uses this particular station but a Mississauga Transit bus passenger would not board the bus in the Islington station, unless coming from a T.T.C. train. Rather, the passenger would board at a bus stop on Bloor Street, about thirty feet to the west of the Islington station. The first level of the Islington station below the street is known as the concourse level. There are stairs going down to this level from the bus bays. On the concourse level, there are benches to sit on and wait for the arrival of the buses and various stores are located along a wide corridor. At the north end of the wide corridor, there is a set of glass doors leading into the subway part of the station. Inside this area, T.T.C. passengers who have either disembarked from T.T.C. buses or who have paid their fare at the pedestrian entrance booth, proceed to a further set of stairs leading down to the next level where the train platform is located.

[22] The three officers from the Transit Patrol Unit arrived at the Islington station at about 8:00 p.m. They parked their unmarked vehicle at street level, towards the east end of the bus bay platforms. P.C. Regan proceeded on foot, on his own, to the Mississauga bus platform located at the south end of the various bus platforms. From this position he could see any pedestrians walking the fifty foot distance, from Bloor Street to the Mississauga bus platform, along the prohibited “bus only” entrance driveway. The prohibition against pedestrians entering in this manner is clearly marked with signs. There had been a problem with violations of this by-law and P.C. Regan was watching for this particular infraction.

[23] At about 8:05 p.m., P.C. Regan observed Haye entering the Islington station on foot, walking along the prohibited bus driveway entrance. He walked into the Mississauga bus bay platform and then walked directly past P.C. Regan. No other pedestrians entered the bus bay platform in this manner at the same time as Haye. There was no bus waiting at the platform and Haye walked down the stairs from the bus platform to the concourse level, turned left, and walked to the north along the wide corridor. P. C. Regan followed him at a distance of about ten feet, without losing sight of him. Haye walked past the benches where bus passengers sometimes wait, if it is cold outside. As he reached the glass doors leading into the subway part of the station, P.C. Regan stopped him. Haye had walked a distance of about fifty feet to the north from the Mississauga bus bay platform. P.C. Regan believed that he was about to enter the T.T.C. subway system without paying.

[24] If Haye had stood at the street level bus bay platform waiting for the Mississauga Transit bus, as he testified, P.C. Regan would simply have cautioned him. His practice was not to ticket Mississauga bus passengers who entered the station in this prohibited manner but then got on the bus and paid the Mississauga Transit bus fare, even though they had committed an offence of unlawful entry on T.T.C. property. P.C. Regan testified that he followed Haye down to the concourse level, to within about ten feet of the glass doors leading into the subway part of the station, in order to be sure that Haye was intending to enter the subway system without paying.

[25] P.C. Regan stopped Haye under the authority of the by-law. He told Haye that he intended to issue a Provincial Offences Act ticket, which carried a $425 fine, for the offence of unlawfully entering T.T.C. property. Haye was not under arrest, indeed, there is no power of arrest under the by-law. However, he was detained for the by-law investigation and he was not free to leave. P.C. Regan required Haye’s identification in order to write up the ticket. He produced his police badge, advised Haye of the reason for the stop, and asked for Haye’s identification. They were standing in front of one of the benches along the walls of the wide corridor in the concourse level.

[26] P.C. Regan did not advise Haye of his s. 10(b) Charter rights, although Haye was clearly detained. P.C. Regan understood that for Provincial Offences Act ticketing investigations, such as under the Highway Traffic Act, he was not obliged to comply with s. 10(b) of the Charter. He equated the by-law infraction with a Highway Traffic Act offence.

[27] When P.C. Regan asked for his identification, Haye replied that he did not have any. He verbally identified himself and provided his date of birth. Both the name and date of birth that Haye provided turned out to be accurate. However, P.C. Regan had to verify the name before issuing a ticket. He had a series of questions that he would ask when a suspect has no identification, in order to verify a verbal identification. For example, he would ask if the person has a driver’s license or ask if there have been prior arrests, in order to check the name against police records. If the name cannot be verified, he would caution the suspect for obstruct police. In this case, he asked Haye if he had ever been in trouble with the police and Haye replied that he was on parole. P.C. Regan then radioed the police dispatcher, providing Haye’s name, date of birth, and the fact that he was on parole. He asked the dispatcher to verify Haye’s identity.

[28] Haye did not provide P.C. Regan with his federal parole card and parole “sign-in sheet”. If any identification had been provided, P.C. Regan’s practice was to make a note of it on the back of the P.O.A. ticket. In addition, in a case like this where the suspect was eventually arrested and booked at the station, his identification would be presented and logged in with his valuables, during the video-taped booking procedure, and it would be sealed in his property bag. P.C. Regan was present for the booking procedure and for the “level 3” search at the station and no parole identification card was found.

[29] P.C. Regan’s purpose in questioning Haye was solely to obtain and verify his identification. He did not intend to exercise discretion in relation to the by-law ticket. The fact that Haye was on parole did not change the investigation. P.C. Regan did not ask Haye what offence he had been convicted of and paroled for. Haye asked if he could pay the transit fare and leave. He did not say that he was waiting for the Mississauga bus. P.C. Regan told him to sit on the bench and wait and told him that he could not pay the fare and leave.

[30] Haye sat on the bench, about two feet away from P.C. Regan. He appeared upset and nervous. He started sweating and put his right hand in his right jacket pocket, fidgeting with this hand. P.C. Regan told Haye to remove his hand from his pocket and Haye complied. However, he put his right hand back into this pocket a second time and P.C. Regan again told him to remove it. Haye again complied but this time, as he removed his hand from the pocket, P.C. Regan saw a clear plastic bag in Haye’s right hand. It appeared to contain a white rock crystal substance. In what was described as a quick and smooth movement, Haye’s hand then went to the small of his back and, when his hand returned to the front, there was nothing in it. This movement took a couple of seconds and it looked to P.C. Regan as if Haye had put something in his waistband, at his back, under his jacket. P.C. Regan demonstrated this movement in court, while seated in a chair. He also demonstrated how Haye was holding the plastic bag, by the knot at the top, such that P.C. Regan could see its contents.

[31] P.C. Regan had a number of prior dealings with crack cocaine and he now believed that Haye had crack cocaine on his person. He did not immediately arrest Haye as he did not think it was safe. He was in a public area, he was not in uniform, and he knew little about Haye except that he was on parole for something. Accordingly, he radioed his two partners and asked them to come down to the concourse level. He did not tell them the reason why he was calling for back-up. He proceeded to make small talk with Haye, who remained seated on the bench, without telling him that he had seen the plastic bag. While they waited for P.C. Regan’s two partners to arrive, the police dispatcher radioed back and confirmed Haye’s name and date of birth and confirmed that Haye was on federal parole.

[32] P.C. Bower and P.C. Kuok arrived within about a minute and a half. Haye was still seated on the bench. P. C. Regan told P.C. Kuok that he was about to arrest Haye and asked P.C. Kuok to accompany him. They stood on each side of Haye. P.C. Regan told Haye to stand up, told him he was under arrest for possession of cocaine, and handcuffed him to the rear. Haye had briefly tried to turn away, when told of the arrest, but there was no struggle or attempt to escape. The arrest happened within seconds of the arrival of the two back-up officers.

[33] P.C. Kuok was holding Haye on one side, during the arrest, while P.C. Regan was at the other side. P.C. Regan handcuffed Haye and then reached into the back of Haye’s underwear waistband and seized the plastic bag containing crack cocaine. He handed the plastic bag to P.C. Kuok. The entire arrest, handcuffing and seizure of the drugs were completed within fifteen to twenty seconds of the arrival of the two back-up officers. P.C. Regan agreed that his only grounds to arrest came from his observations of Haye moving the plastic bag, while seated on the bench on the concourse level of the station. Otherwise, he would have issued a by-law ticket for unlawful entry on T.T.C. property and would have escorted Haye out of the building.

[34] Once the arrest and search were complete, the officers moved Haye to a more private area, in a T.T.C. office. It was about forty feet away and it took about a minute to get there. The office was used as a lunch room by T.T.C. employees. Once inside the office, Haye was advised of his s. 10(b) Charter rights for the first time. P.C. Kuok conducted a “level two” search, which is an external pat search and a search of pockets. P.C. Kuok found money in Haye’s pants pocket. No clothes were removed.

[35] P.C. Regan denied having any conversation with Haye up on the bus platform level. He also denied arresting and handcuffing Haye, prior to the arrival of the two back-up officers. Finally, he denied removing any clothing and discovering drugs in the T.T.C. office. It was only an external pat search that was conducted in the T.T.C. office, Haye’s pants were not taken down, and it was only during the booking procedures at the station that a “level 3” search was authorized and conducted. P.C. Regan testified that he would not do a strip search and remove clothes in a place like a T.T.C. lunch room, where employees could enter. The only additional item found by the police, when conducting the “level 3” search at the station, was a small amount of additional money.

(iii) P.C. Kuok’s account

[36] P.C. Gabriel Kuok had been a Toronto police officer for about eight years, at the relevant time, and so he was somewhat senior to P.C. Regan. He confirmed that the three plainclothes Transit Unit officers arrived at the Islington bus and subway station in an unmarked vehicle at about 7:54 p.m. on March 18, 2011. They parked at the east end of the T.T.C. property in an area where buses park and where they had a clear view of the bus entrance. P.C. Regan exited the vehicle and did not return.

[37] P.C. Kuok and P.C. Bower were still in the unmarked police vehicle, parked on the street level near the bus bays, when they received a radio call from P.C. Regan. He advised that he was down on the concourse level and he asked for their assistance. The two officers left the vehicle, entered the bus bays, and went down one of the bus bay staircases to the concourse level.

[38] Upon arrival in the concourse level, P.C. Kuok saw P.C. Regan standing in the wide corridor, at one of the benches, with a male seated on the bench. The male, who he now knows to be Haye, was not handcuffed or under arrest. He was just sitting there. P.C. Kuok described the location where he saw P.C. Regan and Haye as the south end of the wide corridor, closest to the Mississauga bus platform bays and farthest away from the glass doors that lead into the subway area of the station at the north end of the corridor.

[39] P.C. Kuok knew only that P.C. Regan had called for assistance. Once P.C. Kuok arrived, P.C. Regan did not tell him that an arrest of Haye was imminent. P.C. Kuok simply went to Haye’s side, to stand by, and then P.C. Regan told Haye to stand up. This was immediately upon P.C. Kuok’s arrival. P.C. Kuok thought that Haye was reaching towards his front pants pockets, after he was told to stand up, and this gesture made P.C. Kuok nervous. He was concerned for his safety and he told Haye to stop. P.C. Kuok also took hold of Haye’s left arm. P.C. Regan then placed Haye under arrest for possession for the purpose of trafficking. P.C. Kuok was on one side of Haye and P.C. Regan was on the other side. They turned Haye around, to face the wall, and P.C. Regan handcuffed him to the rear. This all took no more than a few seconds. P.C. Kuok watched Haye’s hands, at his back, while P.C. Regan handcuffed him.

[40] Once Haye was arrested and handcuffed, P.C. Kuok continued to stand at his side, holding his arm. P.C. Regan “field searched” Haye and then handed the plastic bag of cocaine to P.C. Kuok. During the search, P.C. Regan was moving around, sometimes in front of Haye and sometimes behind him, sometimes up and sometimes down. P.C. Kuok was watching Haye, mainly at the level of his head, and was watching their surroundings. Sometimes he saw P.C. Regan during the search and sometimes he did not. He did not see where P.C. Regan found the drugs. In particular, he did not see the drugs being removed from Haye’s waistband. P.C. Regan simply handed the drugs to P.C. Kuok, after seizing them. P.C. Kuok and Haye were standing at the bench throughout the search. The entire search was fairly quick, lasting about a minute.

[41] The three officers then escorted Haye to a T.T.C. office, located through the glass doors at the north end of the corridor. In this more controlled environment, P.C. Kuok conducted a full body pat search, from head to toe, and he searched inside Haye’s pockets. He found money in Haye’s left front jeans pocket and seized it. He found nothing else.

[42] P.C. Kuok kept custody of the seized money and drugs. He participated in the booking procedures at the police station. A strip search was authorized and some additional money was found.

C. ANALYSIS

[43] The conflict between Haye’s evidence and P.C. Regan’s evidence is stark. P.C. Regan gave a reasonably detailed account of the central event in the case, namely, Haye’s act of moving the plastic bag of crack cocaine from his jacket pocket to the back of his waistband. Haye swears that this central event never happened. There is no suggestion that Haye did something similar, which has simply been misinterpreted by P.C. Regan. Haye insisted that he did nothing at all, while seated on the bench. Indeed, he was not even nervous. In other words, there is no possibility of an honest mistake by one of these two central witnesses. The event in question either happened or it did not happen. If it did not happen, it has been fabricated. The defence does not shy away from this stark conflict in the evidence as Mr. Struthers’ submission is that the police have “framed a guilty man” by making up the grounds for his arrest.

[44] Not only is there a direct conflict between P.C. Regan and the accused Haye over whether the central event in the case ever occurred. In addition, there are four relatively significant collateral conflicts between the two witnesses, as follows:

• First, Haye testified that he was stopped and questioned entirely in the street level bus bay, where he was waiting on the platform for the Mississauga Transit bus. It was only after completing the ticketing investigation that P.C. Regan escorted Haye down the stairs to the concourse level in order to place a radio call to the police dispatcher. P.C. Regan, on the other hand, testified that he followed Haye to the lower concourse level and only stopped him as he was about to enter the subway area of the station. According to P.C. Regan, the entire ticketing investigation took place on the concourse level;

• Second, Haye testified that he provided P.C. Regan with proper identification, once he was stopped for the by-law ticketing investigation, namely, his federal parole card and “sign-in sheet”. P.C. Regan insisted, on the other hand, that Haye had no identification which explains why P.C. Regan had to radio the police dispatcher, in order to verify Haye’s verbal identification;

• Third, Haye testified that P.C. Regan immediately carried out a de facto arrest and handcuffed him, upon receiving the radio call back from the police dispatcher confirming that Haye was on federal parole. According to Haye, this was all prior to the arrival of the two back-up officers in the concourse level. P.C. Regan denied this, insisting that Haye’s parole status was irrelevant, that he did not arrest him immediately upon receiving the radio call back from the dispatcher, and that Haye was still not under arrest or handcuffed when the two back-up officers arrived in the concourse level;

• Finally, Haye testified that the bag of drugs was not discovered in the quick and cursory search in the public corridor of the Islington T.T.C. station. It was only once the officers had Haye back in a more private T.T.C. office that they removed his pants and discovered the drugs. P.C. Regan flatly denied this account, insisting that the drugs were discovered in the brief search in the public corridor, immediately after the arrest, and that Haye’s pants were never removed in the subsequent search in the T.T.C. office.

[45] The only other witness to testify, P.C. Kuok, was not present when the central event in the case either did or did not happen. As a result, he provided no direct evidence to assist in resolving the conflict on that issue. However, he did provide some evidence that bears on some aspects of the four collateral conflicts. In particular, his evidence supported P.C. Regan in relation to the third and fourth of the above collateral conflicts. However, he also contradicted P.C. Regan on two points, as follows:

• First, P.C. Kuok testified that the bench where Haye and P.C. Regan were located was at the south end of the corridor, near the stairs leading to the Mississauga bus bays and away from the glass doors leading into the subway area of the station. P.C. Regan testified to the opposite effect, namely, that he and Haye were at the north end of the corridor near the glass doors;

• Second, P.C. Kuok testified that P.C. Regan did not advise him that he was about to arrest Haye. He simply told Haye to stand up and then he arrested Haye, after Haye had made a motion with his hands that made P.C. Kuok nervous. P.C. Regan, on the other hand, testified that he did tell P.C. Kuok of his intention to arrest Haye, that he then told Haye to stand up, and that he arrested Haye as Haye briefly made a motion to turn away.

[46] As noted at the beginning of these reasons, the burden of proof in relation to the central s. 9 Charter issue is not on the Crown. That burden is on the defence, on a balance of probabilities. The burden of proof must be borne in mind, when deciding the central issue of credibility in the case, because the evidentiary dispute between the parties relates to the very existence of the only event that could provide sufficient grounds to arrest. In other words, the Charter violation cannot be established by the defence unless it is more probable than not that the central event did not occur. Mr. Struthers concedes there are some difficulties with Haye’s account but, he submits, Haye’s account is more probable than the very improbable police evidence. As Lamer J. (as he then was) put it in R. v. Collins ( 1987), 1987 84 (SCC), 33 C.C.C. (3d) 1 at 14 (S.C.C.), giving the judgment of the majority:

The standard of persuasion required is only the civil standard of the balance of probabilities and, because of this, the allocation of the burden of persuasion means only that, in a case where the evidence does not establish whether or not the appellant’s rights were infringed, the court must conclude that they were not. [Emphasis added].

Also see: R. v. Harper (1994), 1994 68 (SCC), 92 C.C.C. (3d) 423 at 427-8 (S.C.C.).

[47] I have not been persuaded, on a balance of probabilities, that P.C. Regan lacked reasonable and probable grounds to arrest Haye, for the following five reasons:

• First, Haye’s evidence was marred by a fundamental inconsistency that bears on the central issue in the case. He initially testified that he was carrying the drugs in his pocket. He then changed this account and testified that he was carrying the drugs in his waistband. There was no real explanation for this significant change in his evidence. In addition, his evidence was vague as to why he carried the drugs in his waistband and as to how the police found the drugs. In short, he did not testify in a persuasive manner in relation to the central issue;

• Second, the surrounding evidence relating to the four collateral conflicts, between Haye’s account and P.C. Regan’s account, tends on balance to support P.C. Regan. As to the first conflict, Haye’s account is improbable whereas P.C. Regan’s account is rational. It makes little sense that P.C. Regan would take Haye downstairs, simply to use his police radio, given the evidence that the radios do not work well in the lower levels of the T.T.C. stations and given that P.C. Regan’s two partners were much closer at hand, to provide back-up if needed, on the street level of the station. As to the second conflict, Haye’s account of producing his federal parole card and “sign-in sheet” tends to be contradicted by the fact that no such card or document was ever found or produced or placed in Haye’s property, at the time of the video-taped booking procedures. As to the third conflict, Haye’s account of being already handcuffed and under arrest when the two back-up officers arrived, is firmly contradicted by both P.C. Regan and P.C. Kuok. It is also unlikely that P.C. Regan would have arrested and handcuffed Haye, simply because he was on parole, without inquiring into the terms of his parole or the sentence or offence that he was on parole for or anything related to compliance with his parole. Finally, Haye’s account relating to the fourth conflict is also flatly contradicted by both P.C. Regan and P.C. Kuok. In other words, the surrounding circumstantial evidence tends to support P.C. Regan more than it does Haye;

• Third, the central premise of the defence theory is that an experienced parolee like Haye would not “brandish” or “display” his drugs and thereby openly invite an arrest. There are a number of difficulties with this theory. First, the evidence is that Haye moved the drugs “quickly and smoothly”, with a single sweep of his hand that took mere seconds. Haye was seated and P.C. Regan was standing and Haye may well have thought that P.C. Regan would not see exactly what he was doing. In any event, Haye may have been willing to take some risks to better secrete the drugs. If he was already in breach of parole, for not carrying his parole identification card and for not living at his family’s residence in Scarborough, he may have feared further investigation and discovery that he was carrying drugs on his person. I do not know a lot about Haye’s appetite for risk but he was obviously willing to risk a deliberately unlawful entry onto T.T.C. property, while carrying a substantial amount of crack cocaine and while on federal parole. In all these circumstances, it does not strike me as necessarily improbable that he would take some further risk by trying to “quickly and smoothly” move his drugs to a better hiding place;

• Fourth, P.C. Regan testified in a detailed, confident, rational, and straightforward manner. His evidence was not characterized by vagueness, exaggeration or uncertainty. The only inconsistency put to him, from his preliminary inquiry testimony, was an apparent slip that he immediately clarified at the preliminary inquiry. These matters, relating only to his manner of testifying, do not carry great weight in positively establishing proof of any facts but they do make it more difficult to attack his credibility, when the defence bears the burden on that issue;

• Fifth, P.C. Kuok’s evidence was inconsistent with P.C. Regan on two points, as already set out above. However, the two inconsistencies involve the kind of less important details where P.C. Kuok may simply be mistaken or where he may be unreliable if there are no contemporaneous notes on the points. More importantly, if P.C. Regan had seized the drugs and then set out to “frame” Haye, by inventing non-existent grounds for what was a blatantly unlawful arrest and search, it seems unlikely that he and P.C. Kuok would have contradicted each other on these points. It seems more likely that P.C. Regan would have made sure that P.C. Kuok knew the fabricated story that P.C. Regan was going to tell. It also seems unlikely that P.C. Kuok would insist that he never saw P.C. Regan actually finding the drugs, during the search immediately after the arrest in the concourse level corridor. It will be recalled that Haye’s account was that P.C. Kuok was present, in the T.T.C. office, when the drugs were eventually found by the three officers. In other words, P.C. Kuok was a party to the fabricated police story about how, when, and where the drugs were found, according to Haye, and yet he failed to help P.C. Regan on some of the issues and even contradicted him on others. I am satisfied, in these circumstances, that P.C. Regan and P.C. Kuok gave independent accounts and did not get together in order to fabricate a common false story about how, when, and where the drugs were found.

[48] For all these reasons, the defence has not proved the s.9 Charter violation to the requisite civil standard. Absent a s. 9 violation, there was no s. 8 violation.

[49] Mr. Struthers did not press the alleged s. 10(b) Charter violation, independently of the s. 9 violation. I will, nevertheless, address it briefly. Haye was undoubtedly “detained” within the meaning of s. 9 and s. 10 of the Charter, throughout the by-law ticketing investigation on the concourse level of the Islington transit station. P.C. Regan conceded the point. He simply thought that s. 10(b) Charter rights did not apply, during a brief Provincial Offences Act ticketing investigation. He treated the by-law infraction as no different, for these purposes, than a Highway Traffic Act infraction.

[50] P.C. Regan’s understanding of the operation of s. 10(b) Charter rights, during H.T.A. investigations, is undoubtedly correct. A long line of authority has held that the operational requirements of police powers, when stopping motor vehicles and investigating drivers, are incompatible with s. 10(b) of the Charter. It must be remembered that s. 10(b) requires not only that the suspect be informed of his right to counsel but that he be given an opportunity to exercise the right. Brief roadside detentions of drivers, to check their sobriety, licenses, and insurance, would not be feasible if reasonable access to counsel had to be facilitated before completing these investigations. Accordingly, it has been held repeatedly that s. 10(b) rights are subject to s. 1 reasonable limits in these circumstances. See: R. v. Elias; R. v. Orbanski (2005), 2005 SCC 37, 196 C.C.C. (3d) 481 (S.C.C.); R. v. Harris (2007), 2007 ONCA 574, 225 C.C.C. (3d) 193 at paras. 45-9 (Ont. C.A.); R. v. Suberu (2009), 2009 SCC 33, 245 C.C.C. (3d) 112 at paras. 43-5 (S.C.C.).

[51] It may well be that there are good reasons to analogize between the brief investigative detention of a pedestrian, for a by-law infraction, and the brief investigative detention of a motor vehicle and its driver during an H.T.A. investigation. For example, if the detention was solely for the purpose of obtaining identification and serving a ticket or appearance notice, and was not for the purpose of asking questions relating to the offence, it could be argued that s. 10(b) rights are incompatible with effective ticketing practices and that any infringement of those rights is minimal. Also see: R. v. Lenihan (1997), 1997 NSCA 56, 115 C.C.C. (3d) 246 (N.S.C.A.).

[52] However, it would be unwise to decide this issue, given that there was essentially no argument on the point and no s. 1 evidence was called. It is also unnecessary to decide the issue. There is simply no connection between the subsequent seizure of the drugs during a criminal arrest and any failure to comply with s. 10(b) of the Charter during the earlier ticketing investigation. The police were not obliged to hold off their search for the drugs, once Haye was under arrest, even if he wished to speak to counsel. Furthermore, his right to counsel could not realistically be facilitated in a busy T.T.C. subway station. Finally, the only questions asked by P.C. Regan during the by-law ticketing investigation related to establishing Haye’s identity. In all these circumstances, there would have been no proper basis to exclude the evidence of the drug seizure, pursuant to s. 24(2) of the Charter, due to any antecedent violation of s. 10(b) during the by-law ticketing investigation. See: R. v. Debot (1989), 1989 13 (SCC), 52 C.C.C. (3d) 193 at 200 and 221-2 (S.C.C.); R. v. Polaschek (1999), 1999 3714 (ON CA), 134 C.C.C. (3d) 187 at paras. 27-30 (Ont. C.A.).

D. CONCLUSION

[53] For all these reasons, the Charter Motion is dismissed and the evidence of the seized drugs is admitted. In these circumstances, it is agreed between the parties that Haye must be found guilty on Count One and not guilty on Count Two.

M.A. Code J.

Released: March 1, 2013

COURT FILE NO.: CR-12-90000438-0000

DATE: 20130301

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ATHOL HAYE

REASONS FOR JUDGMENT

M.A. Code J.

Released: March 1, 2013