NEWMARKET COURT FILE NO.: CR-09-09406
DATE: 20130226
CORRIGENDA: 20131007
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
GILBERT GONZALES
Applicant
R. Warren, for the Crown
C. Bottomley and C. Sewrattan, for the Applicant
HEARD: October 22, 23, 24 and 25, 2012
REVISED RULING ON APPLICATION TO EXCLUDE EVIDENCE
The text of the original Ruling has been corrected with text of corrigendum
(released October 7, 2013) appended.
McIsaac J.
INTRODUCTION
[1] The applicant is charged in a nine-count indictment alleging seven firearm and ammunition offences and two offences of possession of marihuana for the purpose of trafficking. He seeks exclusion of all of the evidence relating to those allegations suggesting breaches of ss. 8, 9, 10(a) and 10(b) of the Charter. If successful, this would result in a total evisceration of the Crown’s case.
[2] For the following reasons, I am dismissing the application and permitting these charges to be determined on the merits.
BACKGROUND
[3] On October 5, 2008 members of the Property Crime Unit of the York Regional Police Form were conducting a “proactive” initiative in relation to recent break and enters that had taken place in the Town of Markham. In particular, some of those entries had occurred in daytime and involved “front-door kick-ins”.
[4] As a result of input involving crime analysis, the Unit was concentrating on a residential area of Markham known as Copper Creek, a subdivision that contained both occupied homes and homes under construction. This initiative involved both surveillance of known suspects and general patrol of the area by plainclothes officers operating unmarked police vehicles looking out for “suspicious” individuals. In particular, members of this Unit had decided to conduct “street checks” of any “suspicious persons and/or vehicles” according to the recommendations of the weekly bulletins issued by the crime analysts: see Exhibits 3 to 5.
[5] The applicant first “entered the radar” of Detective Ward on September 30, 2009 when he was observed operating a Dodge minivan at 1:30 p.m. with a male passenger. It struck the officer as odd for two younger males to be operating this type of family vehicle at that time of the day. It also had come from the rear of the subdivision that had no access points and where home construction was underway. It pulled into the garage of a residence at 31 Hislop Drive which would have been accessed from outside the subdivision from a direction opposite from the direction the vehicle was first observed travelling.
[6] Detective Ward who was the initiative supervisor was operating an unmarked pickup truck. He decided to park near this residence to see if the minivan left. It did not and after an hour of unremarkable surveillance the officer left the area. He made no notes at the time other than to record the license plate of the minivan on a piece of scrap paper. He had the plate “run” by another officer and he learned that the minivan had been rented from Hertz by one Gilbert Gonzalez who resided at 132 Gilley Road in Toronto. It was reported that the vehicle was overdue by a couple of days.
[7] Detective Ward returned to Copper Creek on October 5, 2009 when he saw the applicant operating the same minivan in the midday again with a male passenger. On this occasion, the applicant did a u-turn and then drove past 31 Hislop Drive some four or five houses before pulling over to the side of the road. Because this manoeuvre seemed suspicious and because the occupants of the minivan appeared nervous when they saw his truck, he decided to initiate a traffic stop. As he pulled in behind the minivan, the applicant pulled out and left. Detective Ward activated his police lights and followed the minivan which appeared to be avoiding the stop. It eventually did stop at which time the officer approached the driver’s side and showed his police badge and warrant card to the applicant who then opened his window. Detective Ward testified that, at that point, he smelled the strong odour of “fresh” marihuana, that is, raw marihuana as opposed to burnt marihuana. He also noticed that the cargo area of the minivan had all of the seats either removed or stowed and was full of many large, sealed cardboard boxes.
[8] He asked the applicant to produce his driver’s license, ownership for the vehicle and insurance. Mr. Gonzalez provided his driver’s license and the rental agreement. When Detective Ward asked him what was in the boxes, he refused to answer this question although he appeared quite nervous. The officer felt he had reasonable grounds to arrest the two occupants for marihuana possession but decided to defer that step until he could get some “back-up” from other officers. Accordingly, he took the applicant’s documentation back to his truck and made a call for assistance which arrived some seven minutes later.
[9] The applicant and his passenger were then arrested for marihuana possession and Detective Ward decided to open one of the boxes to ascertain the contents. All of them were assiduously taped and sealed. When cut open, it revealed two large industrial-type plastic bags that contained several clear Ziplock bags containing raw marihuana. At this point, the applicant and his companion were advised that they now faced a charge of possession for the purpose of trafficking. Despite this revelation, he decided to close the box, place it back inside the vehicle, and obtain a search warrant for the contents of the minivan. Once obtained, the subsequent search disclosed large quantities of raw marihuana in all of the boxes and a large stash of money in a plastic bag located between the two front passenger seats.
[10] Another search warrant was obtained for the residence at 31 Hislop Drive and this execution generated a further load of raw marihuana along with a loaded firearm that was seized from the master bedroom. The seizure from the vehicle yielded 245 pounds of marihuana and $105,000 cash money. That from the residence yielded 185 pounds of marihuana, approximately $19,000 cash money Canadian and approximately $4,000 cash money, U.S.
[11] The applicant alleges various breaches of the Charter and urges exclusion of all of this evidence given their magnitude and profound impact on his constitutional rights.
ANALYSIS
1. Section 9 – Arbitrary Detention
[12] The applicant suggests that his right to be free from arbitrary detention was breached on two separate occasions: first, when he was stopped at the roadside and, second, when he was arrested.
(i) Roadside Stop
[13] Detective Ward testified that the “grounds” for the traffic stop was to investigate for possible residential break and entries. He stated that, in furtherance of that end, he would attempt to identify the driver and passenger and look into the back of the minivan for stolen property. He would ask for the driver’s license, ownership and insurance. If everything “checked out”, he would ask them for the reason they were in that area.[^1] They would then be allowed to go on their way. Both Detective Ward and another member of the Unit, P.C. Rinna, testified that this form of “proactive” enforcement was routine and also formed part of general patrols.
[14] The Crown suggested that the totality of the circumstance facing Detective Ward justified an “investigative detention” of the applicant’s rented minivan: see R. v. Simpson (1993), 1993 3379 (ON CA), 12 O.R. (3d) 182 (C.A.). Although certain phrases in the testimony of this witness may suggest that this was the foundation for this stop, I am satisfied that a fair reading of all his evidence on this point confirms that what was really driving this interception was the power conferred by the Ontario Highway Traffic Act (“HTA”) in particular, s.216(1) thereof which permits an officer to stop a driver “in the lawful execution of his or her duties and responsibilities”. One of the items that needed confirmation in the mind of Detective Ward was the identity of the individual who was driving the rented minivan. It could have been the “Gilbert Gonzales” whose name was on the contract or it could not. One way to establish that point was to stop the vehicle and have the driver produce his license: see s.33(1) Highway Traffic Act.
[15] Mr. Bottomley suggests that this constituted an abuse of the statutory power and was merely a “ruse” or “pretext” to investigate this suspicious minivan and the people inside it. However, this submission ignores a potential middle ground of “dual purpose” stops that have been found to be constitutionally permissible: see R. v. Humphrey, 2011 ONSC 3024 at paras. 90 to 102. I cannot improve on the excellent analysis by Code, J. in this case. Suffice it to say, in the absence of the applicant satisfying me that there was no legitimate highway traffic purpose to this stop, even though the predominant motivation may have related to the investigation of this rash of residential burglaries, this complaint must fail. Borrowing a phrase from Mr. Bottomley’s oral submissions, the police may have been conducting a wide-ranging “catch and release” program to gather intelligence about potential perpetrators of these property offences, they were doing so in statutorily mandated waters. If I were to accede to the complaint in this context, I fear that I would be placing an unreasonable limit on legitimate police investigatory powers. I am not prepared to go that far given the limited intrusion into the applicant’s liberty interests in relation to the highly regulated privilege to operate a motor vehicle on a public highway.
[16] I find some significant parallels between this case and one of those canvassed by Code, J. in R. v. Humphrey, supra. In Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d), (Ont. C.A.) the police had set up a roadblock to check all members of outlaw motorcycle clubs. It was conceded by the police that the reasons for this initiative was to gather intelligence in furtherance of efforts to combat the illicit activities of these groups. The police also conceded that they were using their power under s.216(1) of the HTA to do so. At para. 31 of the judgment, Doherty, J.A. observed:
The gathering of police intelligence is well within the ongoing police duty to investigate criminal activity. As long as the additional police purpose is not improper and does not entail an infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating s.216(1) of the HTA, I see no reason for declaring that a legitimate police interest beyond highway safety concerns should taint the lawfulness of the stop and detention.
[17] The parallels between that case and the instant case are compelling:
Both were motivated to provide intelligence for legitimate police interests:
Both were selective in the sense of targeting only “suspicious” members of the driving public and were, in that sense, not arbitrary;
Both involved “plain view” assessments of the drivers, passengers, vehicles and equipment; and
Both were limited to the requirements of the HTA and did not involve intrusive searches of persons and property.
[18] I am satisfied that it provides a complete answer to this component of the applicant’s complaints.
(ii) Arrest
[19] The applicant suggests that the alleged strong odour of “fresh” marijuana was insufficient to justify the arrest herein. He argues that it offends the holding in R. v. Polashek (1999), 1999 3714 (ON CA), 45 O.R. (3d) 434 (C.A.). In that case, Rosenberg, J.A. was dealing with a situation involving the officer’s arrest based upon an alleged “strong odour” of marijuana emanating from a vehicle. The officer could not tell whether the odour was of burnt or raw marijuana and he saw no smoke. In upholding the conviction, it was held that the “combination of circumstances” were sufficient to validate the arrest, including a statement by the accused, the location of the stop and the officer’s extensive experience in marijuana seizures. At para. 14 of the judgment, Rosenberg, J.A. noted:
On the other hand, I would not go so far as was urged by the appellant that the presence of the smell of marihuana can never provide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observations was made will determine the matter. It may be that some officers through experience or training can convince the trial judge that they possess sufficient expertise that their opinion of present possession can be relied upon. Even in this case, the Crown adduced sufficient evidence from which the trial judge could reasonably conclude that Constable Ross accurately detected the odour of marihuana rather than some other substance. (my emphasis added)
[20] In the present case, there was significant support for Detective Ward’s opinion:
He was able to provide definition to the odour in that it was “fresh”, that is, “raw” being in a “vegetative state” or having been “freshly cut”;
The odour was distinctive, that is “skunky”;
He had been involved in “numerous” drug investigations that required dismantling of marihuana grow operations;
The applicant had refused a direct request to disclose what was inside the cardboard boxes; and
His opinion was supported by two other experienced officers.
[21] I am satisfied that this constellation of circumstances was more than sufficient to justify this arrest under s.495(1)(b) Criminal Code. If one were persuaded to “carve away” the applicant’s refusal to disclose the nature of the contents of the boxes as urged by Mr. Bottomley on the basis of a legitimate exercise of his right to silence, I am still satisfied there was an abundance of grounds justifying this arrest: see R v. Harding, 2010 ABCA 180 at paras. 15 to 30.
2. Section 10(a) – Right to be Advised “Promptly” of Reasons for Arrest or Detention
[22] The applicant suggests that s.10(a) was breached when the focus of the investigation shifted from the traffic stop to the possession of marihuana once Detective Ward detected the strong odour emanating from the minivan and he was not advised of this change of circumstances. The Crown takes the position that Mr. Gonzales was advised of this change of focus to a drug investigation “as soon as practicable” once the “back-up” officers had arrived on scene.
[23] In R. v. Suberu, 2009 SCC 33, 2009 S.C.C. 33, the court observed that the right of an individual to be informed “without delay” of his or her s.10(b) entitlements was subject to “concerns for officer or public safety”: see para. 42. I see no reason in law or logic to exclude those concerns from the obligations imposed by s.10(a). Accordingly, Detective Ward was justified given his vulnerable circumstances to await the arrival of “back-up” before disclosing his newly-generated interest in the odour wafting from this vehicle and the contents of the cardboard boxes.
[24] I appreciate counsel’s submission that this alleged vulnerability based on the officer not having his protective equipment because of this undercover operation did not prevent him from posing a question about the contents of the cardboard boxes. Despite that factor, I am still satisfied that the prudent course taken by Detective Ward was justified in the circumstances then prevailing. The question was relatively open-ended and was not accusatory. The applicant has failed to satisfy me that s.10(a) was breached by this delay.
3. Section 10(b) – Right to Counsel
[25] The Crown concedes that this advise (“RTC”) was not given “immediately” upon the focus of the interception changing to a drug investigation. For the same reasons canvassed in relation to s.10(a), I am satisfied that Detective Ward was justified in delaying this obligation until after his “back-up” arrived. However, P.C. Ng who affected the applicant’s arrest at the direction of Detective Ward conceded in cross-examination that he did not give the RTC until some 18 minutes after the arrest. He explained this delay on the basis of taking a “peek” into the applicant’s purse to look for weapons and conducting an inventory of the cash on the arrestee’s person. I accept that officer safety concerns justify the search of the purse; the delay related to the inventory does not. Accordingly, I find that there was a breach of s.10(b) of some indeterminate duration not exceeding 18 minutes. The case relied on by the applicant, R. v. MacDonald, 2012 ONCA 495, is distinguishable from the instant case because, in that case, there was no attempt to justify the original delay in the RTC on the basis of officer safety. Accordingly, I prefer to defer the complaint related to the question about the contents of the boxes to the consideration of the alleged breach of s.8 of the Charter. There is an overlap between the s.10 and s.8 complaints: see R. v. MacDonald, supra, at para. 19.
4. Section 8 – Unreasonable Search and Seizure
(i) Search Related to the Contents of Boxes
[26] After smelling the odour of “fresh” marihuana and well before the applicant was arrested and given his RTC in relation to the drug investigation, Detective Ward asked Mr. Gonzales what was inside the many boxes stashed inside the minivan. He refused to answer this question. If he had answered, that could have constituted a breach of s.8 of the Charter. In R. v. Harris, 2007 ONCA 574, Doherty, J.A. stated , at para. 34:
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 question, 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. (my emphasis added)
[27] Accordingly, there was no “seizure” in the case at bar for two reasons; firstly, the applicant clearly was aware of his right to silence because he refused to give Detective Ward the information he was seeking; and second, there was no “taking” because of the selfsame refusal.
[28] In the result, there was no breach of s.8 in this exchange.
(ii) Search of the Single Box
[29] I am satisfied that this took place after the applicant and his companion had been placed under arrest for possession of marihuana and that it was incidental to that arrest: see R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51. In all of the circumstances, there was a reasonable prospect that drugs would be found therein, indeed in all of the boxes.
(iii) Search of the Vehicle
[30] Despite having found a significant amount of marihuana in this single box and arranging for the applicant to be advised that he would be facing a charge of possession for the purpose of trafficking, Detective Ward decided to close this box, return it to the minivan and proceed to obtain a search warrant to have the minivan searched once it had been towed to the police station. I can only come to the conclusion that this was done out of an abundance of caution as the officer was perfectly entitled to search the entire minivan on the legal authority of search incidental to a CDSA arrest: see R. v. Caslake, supra, at para. 15.
[31] Prior to the documentation for the search warrant being presented to the justice of the peace, Detective Ward learned from a Land Registry search that the applicant was a joint owner of a property located at 31 Hislop Drive. The “fresh” information was not incorporated into the ITO and the applicant suggests it was done so deliberately as it may have provided an innocent explanation for his presence in the Copper Creek subdivision on both September 30 and October 5 sufficient to reject the authorization sought.
[32] Although there is an obligation to provide “full, frank and fair” disclosure when seeking such judicial authorization, I am far from persuaded that Detective Ward made a conscious choice to exclude this circumstance from the material in the ITO. This was a situation that quickly evolved from a rather prosaic surveillance for suspicious persons potentially related to this rash of break and enters to a full-blown major drug “bust”. As Binnie, J. observed in R. v. Nolet, 2010 SCC 24, 2010 S.C.C. 24, “…roadside stops sometimes develop in unpredictable ways”: see para. 4. Given the flurry of activity generated by the unfolding events, I am not surprised that this ownership factor was omitted from the ITO which contains some 31 paragraphs of exquisite detail. At worst, it was an inadvertent error on the part of the affiant.
[33] As well, I take a different view as to the impact of this single piece of information than that advanced by the applicant. Rather than mitigating the case against him, it could have aggravated it. Given that there was this large shipment of processed “raw” marihuana located in the minivan on the date of the arrest, there was a likelihood that the processing was taking place at this residence partly owned by the applicant and which was located in the immediate vicinity of the interception. In my view, the inclusion of this missing factor would only have fortified the already compelling basis for issuance of the warrant.
[34] Although this omission qualifies as a technical breach of the requirement for full disclosure, it did not, in my view, invalidate the authorization issued: see R. v. Colbourne (2001), 2001 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.) at paras. 39-45.
(iv) Strip Search
[35] The applicant bases this complaint on the fact that it would have been a profound intrusion on his personal integrity to be subjected to such a process, assuming there were no reasonable grounds for his arrest. Having found that there was an abundance of circumstances justifying this arrest, this complaint evaporates. There were no additional factors advanced suggesting that this strip search was not warranted.
5. Section 24(2) – Exclusion
[36] The applicant has failed to establish most of his constitutional complaints. He was not subject to an arbitrary detention or arrest; the delay in being advised of the new jeopardy he was in was justified; there were no breaches of s.8 of the Charter related to the initial search of the single box containing marihuana, the subsequent ones of the minivan, the applicant’s residence and his person. Although there was an attempt to breach s.8 by asking the applicant about the contents of the boxes before he was given his ss.10(a) and 10(b) rights, he was well aware of his rights and refused to answer the question posed by Detective Ward. In the result, this exchange did not constitute a s.8 breach under R. v. Harris, supra. That being said, I am prepared to “accelerate” the seriousness of the found s.10(b) breach because of this circumstance that indicates an insensity to the limits placed on questioning a vulnerable detainee.
[37] That leaves only the single breach of s.10(b), albeit an “accelerated” breach for the reasons above noted, for consideration of the template enunciated in R. v. Grant, 2009 SCC 32, 2009 S.C.C. 32.
(i) Seriousness of the Conduct
[38] The applicant has failed to persuade me that the misfeasance of P.C. Ng represents a “willful or reckless disregard” of his Charter rights. The advice was delayed, not denied. Although it does not justify the delay, the inventory of the money found on Mr. Gonzales was not a frivolous or unwarranted exercise; it simply should not have taken precedence over his constitutional entitlements. Even as aggravated by the attempt to breach the applicant’s s.8 right to silence, I am far from convinced that this is the kind of default from which the court should be required to dissociate itself. There is no suggestion that P.C. Ng’s default was representative of a systemic pattern of his police force. Looking at all the circumstances, I would describe this “accelerated” Charter breach as only moderately serious.
(ii) Impact on the Applicant’s Charter Interests
[39] Despite the breach of s.10(b), the applicant made no incriminating statements in the interim before he received the appropriate advice. Indeed, the applicant has advanced no evidence of attempts on the part of the authorities to take advantage of his vulnerability during this brief period of time. I can find little if any impact on Mr. Gonzalez’s Charter interests flowing from the failure to immediately advise him of his RTC.
(iii) Society’s Interest in an Adjudication on the Merits
[40] The evidence of the drugs, money and firearm is extremely reliable and fundamentally important to this prosecution. As I have already stated, a ruling excluding these items would eviscerate the Crown’s case. On the other hand, I appreciate that there is no rule of presumptive admissibility of reliable evidence.
(iv) Weighing the Factors
[41] The applicant has relied upon the judgment in R. v. Harrison, 2009 SCC 34, 2009 S.C.C. 34 in support of exclusion, assuming I was to find all or most of the Charter infringements alleged. However, based on the findings I have made, I am of the view that the present circumstances are light years away from the extremely egregious ones that supported the exclusion in that case. Given the relatively minor misfeasance prevailing here, the non-existent impact on the applicant’s Charter interests and the reliable nature of the targeted evidence, I am of the view that a disposition allowing this prosecution to continue is overwhelmingly in order.
6. Conclusion
[42] For all of these reasons, the application herein is dismissed.
McISAAC J.
Released: October 7, 2013
CORRIGENDA
1. Page 1, para. 1, line 3 now reads: …the evidence relating to those allegations …
2. Page 1, para. 2, line 2 now reads: ... charges to be determined on the merits.
3. Page 4, para. 15, last line now reads: ….relation to the highly regulated …
[^1]: The applicant wisely did not suggest that this detention was invalidated by the fact that one of the elements of the initiative was to ask the occupants of stopped vehicles the reasons for their presence in these locations. The police concerns were neither unfounded or arbitrary because each of the stops were based on articulable reasons. For instance, this stop was initiated by the observed anomalies associated with the minivan on the two days it had been observed in this subdivision. This was far from the offensive program in R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615 which involved a ploy of a traffic stop to conduct either “an unfounded general inquisition or an unreasonable search”: see p.624.