ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-0383

DATE: 20130616

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

PATRICK DALE

Respondent

Sam Humphrey, for the Crown

Richard Morris, for the Respondent

HEARD: June 6, 2013

On appeal from the decision of Justice Robert Selkirk, Ontario Court of Justice at Pembroke, dated November 8, 2012

T.D. Ray J

Introduction

1The Crown appeals the acquittal of the respondent in which his Honour found that the police had breached the respondent’s Charter rights, and dismissed two counts of breach of probation; and asks that a conviction be entered on both counts.

2The respondent was one of two passengers in a car which was stopped at a RIDE program on April 1, 2012 by an OPP officer who as part of the stop asked the passengers for identification; and when given his original birth certificate by the respondent, left the car to have a CPIC check conducted. The CPIC check advised that the respondent was on probation, a term of which was that he neither possess nor consume alcohol. When the officer returned to the car, he asked the respondent to step out of the car, and formed the opinion that the respondent had been drinking. The respondent was charged with being in breach of terms of his probation. The trial judge found several Charter breaches and excluded the evidence under section 24(2), which resulted in an acquittal.

Standard of review

3The standard of review requires that an appellate court should not interfere merely because it would have reached a different result and should only interfere if the trial judge made a finding that is unsupported by the evidence or that is unreasonable and would have affected the result.¹ The application of a legal standard to the facts of a case is a question of law and is subject to review for correctness.² The weighing and examination of the evidence is only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion.³

Trial Judge’s Decision

4The trial judge found the respondent had been detained at the moment his “identification is demanded and he provides it to the officer who then walks away with it.” And further “He is, effectively, held captive there until his identification is returned to him”⁴. Since the officer admitted, he had no idea of any offence having been committed, the trial judge found there were no grounds for the detention, and therefore it was ‘arbitrary’.

5He found the seizure of the respondent’s birth certificate to be a warrantless seizure without reasonable cause. The trial judge found the search to be in contravention of s 8.of the Charter, and that there were s 9 and 10(b) breaches.

6The trial judge found that “Constable Graveline explained that, “we run everyone we stop”, meaning every person in every car is queried on CPIC”.

7The trial judge considered that this practice offended the principles set forth in R v Mellenthin⁵, Pinto⁶, and Harris⁷ which he said were clear statements that this practice was in contravention of the Charter. Accordingly, he excluded the evidence under section 24(2) after applying the three factors in R v Grant⁸; and acquitted the respondent.

The Position of the Crown

8The Crown appeals on the basis that the trial judge had misdirected himself on the law, and that in fact the request of the respondent, a passenger in the vehicle, was not in contravention of the authorities. Since it was understood at the trial that but for the Charter breaches a conviction would be entered, he asks that the acquittal be set aside and a conviction be entered on both counts.

9The Crown submits the trial judge erred in finding that the respondent had been ‘searched’ within the meaning of section 8 of the Charter when the police asked him for his identification; in finding that the respondent had been ‘’detained” within the meaning of s. 9 at any point before the officer asked him to exit the vehicle; and excluding any evidence under s. 24(2). The Crown concedes that the respondent had been detained when asked to step out of the vehicle. However, the Crown contends that the trial judge erred in finding that his detention should have led to the exclusion of any evidence, or the acquittal of the respondent.

10The Crown takes the position that the court in R v Harris conceded that there is a line of cases⁹ that accepts that the police may in the course of their duties request identification where the police have no reason to suspect that person of any misconduct.¹⁰ He further contends that in any event, in the line of cases including Harris and Pinto, they were faced with a respondent who was under detention at the time of the request or ‘search’. He points to several cases which take the law to be that “absent a detention, the law is clear that merely asking for identification does not constitute a s. 8 search or seizure”.¹¹

11The Crown contends that the trial judge erred in finding that the respondent had been detained at the time the request for identification was made. He says that for such a finding there must be a significant psychological or physical restraint;¹²and the trial judge erred in finding that the respondent was not detained when he was asked for identification, but was detained when the officer took the respondent’s identification and left for his cruiser to check CPIC. He argues that since the officer had no legal authority to require identification, the mere fact that the respondent “chose to cooperate with the Officer by giving him his original birth certificate” does not mean he was detained, and relies on R. v. Humphrey,¹³ and R. v. Blackwood.¹⁴

12Further, the Crown contends that the trial judge erred in finding on the evidence that the respondent’s poor history with police led him to feeling detained, and that he in fact was detained when the officer walked off with his birth certificate.¹⁵

13As for the trial judge’s section 24(2) exclusion of the evidence which led to the acquittal, the Crown says that the trial judge erred in finding bad faith by the officer, that the law was not as clear as the trial judge suggested, and that it was an error to be critical of the officer for doing something that was not in clear contravention of the relevant authorities.

The Position of the Respondent

14The respondent contends the appeal is without merit, and that the trial judge’s findings were based on the evidence. He notes the respondent’s evidence that the officer was forceful in asking him about a backpack on the back seat of the car, and when the respondent asked the officer if he had a warrant, the officer said – all right I want ID from everyone. The respondent’s evidence was that he had had prior interactions with the police which were unpleasant and he wanted to avoid any repetition.

15The respondent referenced a number of cases where the courts have disapproved of the practice of asking passengers in a routine traffic stop for identification.¹⁶

Analysis

16Notwithstanding the Crown’s urging to reassess the evidence in light of the trial judge’s findings, I consider there was evidence before the trial judge to enable him to conclude that the officer’s ‘demand’ (as opposed to a request for his identification) marked the beginning of his detention. In fact the respondent’s evidence at trial was that the officer leaned in the window of the car at the stop and asked – what’s in the back pack? When the respondent asked if he had a warrant, the officer then told them “I want identification from everyone”. In addition the respondent described previous interactions with the police that did not go very well for him. It was reasonable to conclude that that the respondent felt compelled to comply with a demand for his identification for fear of physical consequences. I am satisfied that the trial judge’s findings were supported by the evidence.

17The Court of Appeal in R v Johnson¹⁷ commented on R v Harris, and reiterated that Doherty JA, had left open the possibility that “ upon a HTA stop, the driver and the passengers are automatically detained”, while acknowledging that some courts have been of that view while, others have held that something more was necessary. In Johnson, the court found it unnecessary to deal with that question since in overruling the trial judge it held on the facts of that case that requiring a passenger to put his hands on the seat in front of him during a roadside stop amounted to a detention.

18Having found that there were sufficient grounds in law and in the evidence for the trial judge to find the several Charter breaches, I must consider whether the trial judge erred in his section 24(2) analysis to exclude the evidence.

19I remind myself that the trial judge is a very experienced judge, who prior to his appointment had a successful criminal defence practice. He is a resident judge here in Renfrew County, and must be taken to be in touch with public sentiment and police practices. His expressed concern of the seriousness of the police conduct in this case must be given great deference. The Crown concedes that the courts have consistently disapproved of using highway traffic stops for general investigative activities.¹⁸ Yet that was precisely the evidence before the trial judge as to what the police officer routinely did during a RIDE program. I see no error in the trial judge’s analysis of the Grant factors in his 24(2) consideration. It was open to him to exclude the evidence.

20The appeal is dismissed.

Honourable Justice Timothy Ray

Released: June 6, 2013

COURT FILE NO.: 12-0383

DATE: 20130616

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Appellant

– and –

PATRICK DALE

Respondent

REASONS FOR JUDGMENT

Honourable Justice Timothy Ray

Released: June 6, 2013

Footnotes

1. 1Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
2. 2R v Shepherd 2009 SCC 35, 2009 S.C.C 35, para 20.
3. 3R v Burns, 1994 127 (SCC), [1994] S.C.J. No. 30 (SCC).
4. 4Trial judge decision, paragraph 26, Appeal Book.
5. 5R v Melenthin, (1992), 1992 50 (SCC), 76 C.CC(3d) 481 (SCC).
6. 6R v Pinto, [2003] OJ. No. 5172 (S.CJ.).
7. 7R v Harris, (2007), 2007 ONCA 574, 225 CCC. (3d) 193 (Ont.CA.).
8. 8R v Grant, [2009] 2 S.C.R. 53.
9. 9R v Grafe (1988), 1987 170 (ON CA), 36 C.C.C. (3d) 267 (O.C.A.) at 274.
10. 10R v Harris, paragraph 42.
11. 11R. v. Frank, 2012 ONSC 6274, [2012] O.J. No. 5242 (S.C.J.) at para. 50.
12. 12Note 5, @ para. 44.
13. 13[2011] O.J. No. 2412, 2011 ONSC 3024.
14. 14[2009] O.J. No. 5393 (S.C.J.) at paras. 4-14.
15. 15Trial Judge Decision, paragraph 27-8, Appeal Book, tab 4.
16. 16R v Chronopoulos, [2009] O.J. No. 1619 (S.CJ.); R. v Dennis [2005] OJ. No. 5662 (C.J.); R v H.(S.), [2005] O.J. No. 1735 (C.J.); R. v. Nguyen, [2009] O.J. No. 4564 (S.C.J.); R V. Johnson 2013 ONCA 177, [2013] O.J. No. 1308 (Ont.C.A.).
17. 17Note 16, para 34. It is noteworthy that Doherty JA was on the same panel in both cases.
18. 18See also R v Melenthin, note 5, @ para 26: “To search a person who is stopped at a check stop, without any reasonable or probable cause, goes far beyond the purpose and aim of those stops and constitutes a very serious Charter breach. As noted earlier, check stops infringe the Charter rights against arbitrary detention. They are permitted as means designed to meet the pressing need to prevent the needless death and injury resulting from the dangerous operation of motor vehicles. The rights granted to police to conduct check stop programs or random stops of motorists should not be extended.”