R. v. Dignam, 2013 ONSC 4419

CITATION: R. v. Dignam, 2013 ONSC 4419

COURT FILE NO.: 1627/12

DATE: 20130626

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ADAM RONALD JEFFREY DIGNAM

MICHAEL ROBB, for the Crown

TERRY BRANDON, for the Accused

HEARD: May 10 and June 21, 2013

DESOTTI, J.

[1] This is an application by the accused to exclude evidence obtained by the Sarnia Police Services as a result of a search of the applicant’s person and vehicle on June 23rd, 2011, under section 24(2) of the Charter of Rights and Freedoms, pursuant to the violation of his rights under sections 7, 8, 9 and 10(b) of the same Charter of Rights and Freedoms.

A. The Facts

[2] There is no issue that the accused on June 23rd, 2011, made a u-turn at the intersection of Walnut Avenue and Kathleen St. in the city of Sarnia. This driving infraction under the Highway Traffic Act was observed by Sergeant Wilson.

[3] The officer activated his lights but the accused appeared to be stopping or parking his vehicle in any event a short distance from this intersection in front of a residence. The accused exited his vehicle and locked it (when retrieving his insurance and licence from the vehicle he had to unlock his car to enter it). The Sergeant knew the individual as someone with whom he had past drug related issues about 6 to 8 years earlier.

[4] The officer noted that the accused appeared to be nervous or agitated and had a tremor in his voice. The officer asked the accused “if he had any weapons or anything illegal” but the accused answered in what the officer thought was in an evasive manner when he responded by saying “I’m not a violent person”.

[5] The officer further questioned the accused if he had anything illegal but the accused reply was that he did not want to say. Of some note, the officer observed a bat in the rear of the motor vehicle and a folding knife on the console when the accused went to retrieve his documents. Also of some great curiosity was that the officer noted that there was a cell phone at the base of the front windshield. The accused indicated that he had locked his keys in the car earlier and had used the cell phone’s flashlight to illuminate the vehicle as he tried to open the vehicle.

[6] At about this time a second officer arrived at the scene as a backup to this investigation. The precise timing of the arrival of the second officer was not noted by Sergeant Wilson. The Sergeant decided to detain the accused at this point as he believed or was “concerned that he may have additional weapons on his person”.

[7] Prior to the physical search there were no rights to counsel and it is conceded that the Sergeant was detaining the accused out of concern for officer safety and a belief that the conduct of the accused reflected the potential concealment of weapons. The officer also indicated in cross-examination that he had “no indication whatsoever of what criminal activity I’m investigating that’s why I’m investigating”.

[8] Upon conducting a pat down search, the Sergeant felt a large bulge in the accused’s front pocket. Either he observed the bags in the pocket of the accused or somehow moved the pocket to see the white powder in the ziploc bags. In any event, the search revealed 32 small Ziploc bags of cocaine plus cash money in the sum of $1,140.00 was produced.

B. Analysis

[9] Both the Crown and defence counsel have referred me to a number of decisions in their Book of Authorities. Both rely on the principles as reflected in the Supreme Court of Canada decision in R. v. Mann.

[10] In turn, I will be referring to R. v. Mann and a number of other decisions not referred to me by counsel that reflect certain guiding principles in addition to referencing some of the decisions relied upon by counsel in their Book of Authorities. I would note that as is the norm, many of the legal principles are driven by the facts and findings of the trial judge.

1. In R. v. Mann, the police officers were call to a district in downtown Winnipeg as a result of receiving a dispatch of a break and enter in progress. The individual was described as an aboriginal male, 21 years of age, wearing a black jacket with white sleeves and thought to be one “Zachary Parisienne”.

The officers when they approached the scene observed an individual walking casually on the sidewalk matching the description of the suspect “to the tee”. The officers asked the accused to identify himself, which he did as one Philip Mann and as well his birthdate. He complied with a pat- down search for concealed weapons. Within his pullover sweater with a kangaroo pouch pocket, one officer felt a soft object in his pocket and discovered 27.5 grams of marijuana and a number of small plastic baggies and two valium pills in another pocket.

I would note for those that are less familiar with grams, that this amount would be slightly less than 1 ounce of marijuana (28 grams in an ounce). The relevant sections of the Charter that were in play were sections 8, 9, and 10.

The majority of the Supreme Court (5 out of 7) concluded that the officers were entitled to detain the accused for officer safety but that the search of Mann’s pocket was unjustified and thus excluded under s. 24 (2) of the Charter.

The seminal principles as reflected in the Mann decision are found at paragraphs 40 and 45 as follows:

The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances … The officers decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.

Police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case.

2. In the decision of R. v. Aucoin, the Supreme Court of Canada again revisited the issue of a pat-down search that arose after a police officer stopped a motor vehicle upon discovering that the licence plate belonged to a different motor vehicle.

The facts of this case are not in issue although some of the evidence was referenced by various levels of court and not referred to by others. After the accused motor vehicle was stopped, the accused was detected with having alcohol on his breath. Since he was a newly licenced driver, he was prohibited from driving with any alcohol in his system. The administration of a Roadside Screening Test revealed that the accused had 20 mg. of alcohol per 100 ml. of blood and thus the accused’s vehicle was going to be impounded.

The officer returned to his vehicle to write out the ticket but because a number of people were milling about, he concluded that the accused could walk away and chose to put the accused in the backseat of his cruiser. For officer safety, the constable conducted a pat-down search with the permission of the accused and felt something hard in the left front pocket of the accused’s pants. The accused indicated that it was his wallet but when the officer felt something soft in the accused’s right front pocket, the accused indicated that it was ecstasy.

The accused was then arrested. A further search of the accused’s pocket revealed eight bags containing cocaine and two bags that contained 100 pills that were not any controlled drug or substance. The accused was eventually convicted of possession for the purpose of trafficking of the cocaine found in his pocket.

The trial court and the majority of the Nova Scotia Appellate Court did not believe the placing of the accused in the cruiser was a contrivance in order to conduct a pat-down search. All of the lower courts concluded that to allow the accused to remain in his motor vehicle when the motor vehicle was about to be towed away might constitute a continuation of the offence under section 100 of the Motor Vehicle Act. Furthermore, the ultimate pat-down before placing the accused in the back seat of the cruiser with the officer writing out the ticket in the front seat was considered by the lower courts to be an officer safety issue.

The majority of the Supreme Court, on the other hand, concluded that placing the accused in the back seat of the cruiser was an unlawful detention contrary to s. 8 of the Charter of Rights and Freedoms. Furthermore, the Supreme Court concluded that conducting a pat-down search before placing the accused in the cruiser for purposes of officer safety was unnecessary as within minutes other police cruisers had arrived at the scene and the accused could have been turned over to these additional officers.

Justice Moldaver specifically mentioned that awaiting a minute or two would have obviated the need for placing the accused in the cruiser. Nevertheless, even though the Supreme Court concluded that the accused’s rights under section 8 were violated, the Supreme Court concluded that the actions of the constable throughout the detention including the manner in which he conducted the search did not warrant the exclusion of the evidence so found in the accused’s pocket and was thus properly admitted into evidence. In short, the constable at all times had been acting in good faith and was not creating a circumstance that would justify his pat-down search.

[11] Before I review other decisions that uphold or exclude evidence obtained through a pat-down search as part of either an investigative detention or on officer safety concerns, the characterization of the facts and circumstances of the detention or pat-down search are fundamental to a determination by a court at a voir dire or at trial whether the conduct not only violates a Charter Right but whether the 24 (2) analysis would exclude the evidence.

[12] For example, the dissenting opinion of the Supreme Court not only affirmed that there was no necessity in placing the accused in the back seat of the cruiser and thus no necessity to conduct a pat-down search but they also pointed out that the constable had a cadet riding with him to watch over the accused (a fact that does not seem to be referred to in the majority decision or even at the lower courts). Secondly, as indicated by the majority in their reasons, other officers arrived on the scene with their cruisers to assist thereby alleviating any need for a pat-down search. In addition, the evidence confirmed that the accused was at all times cooperative and acting responsibly, which would seem to be contrary to any indication that the accused might “wander off”.

3. In R. v. Morris and R. v. Nartey, the same panel of the Ontario Court of Appeal, ruled differently on two set of facts where pat-down searches were conducted by the officers out of officer safety concerns. In the Morris decision, the trial court concluded that the officers pulled over the motor vehicle pursuant to s. 216 (1) of the Highway Traffic Act because they had determined that a CPIC check of the licence plate number revealed a ‘caution’ with respect to the registered owner. Both officers indicated in their evidence at trial that they were aware that if the driver had the appropriate documentation that they were foreclosed from and constrained from conducting any other search or investigative detention.

When the police then smelled marijuana emanating from the motor vehicle, the trial court and the Appellate Court concluded that the placing of the parties in the motor vehicle under arrest constituted reasonable and probable grounds. They further concluded that any s. 10 Charter of Rights breach was minor in those circumstances.

(Again, without a great deal of other facts in this case, the evidence of the smell of marijuana may or may not be sufficient to constitute grounds for an arrest. As stated by Justice Rosenberg in R. v. Polashek, olfactory evidence may or may not give rise to reasonable and probable grounds for an arrest.)

In the Nartey case, the same panel of the Court of Appeal agreed with the trial judge’s assessment of the evidence of the police as reflective of a tailored attempt, after the fact, to justify their traffic stop of the accused’s motor vehicle. Most importantly, the trial judge concluded that he had serious doubts that the accused had committed ‘a rolling stop’ as indicated by the officers and believed that the officers had manufactured evidence.

In this regard, although the officers had indicated that they observed the accused rifling through a duffle bag in the vehicle and that they then observed the accused tossing this same duffle bag into the rear of the motor vehicle, no such duffle bag was produced in court as an Exhibit nor was any duffle bag observed in any of the photographs of the inside of the motor vehicle.

In effect the Appellate Court concluded that when the officers received information through the tracking of the motor vehicle’s licence plate that the accused had a record for possession for the purpose of trafficking, was subject to two arms prohibitions and had a street gang affiliation that the police then began an investigative process that had all the earmarks of a fishing expedition. The fact that the officers indicated that they conducted a search of both the accused and the motor vehicle under their concern for officer safety, was not a true depiction of the facts or evidence but was merely a pretense and an attempt by the officers to come within the exception of investigative detention and the law with respect to officer safety. The evidence of the drugs and firearms was thus excluded.

(Interestingly, it should be noted that in the Morris decision, s. 216 of the H.T.A was deemed to be sufficient reason to stop a motor vehicle (i.e. a police check for proper driving documentation) and in that case when this was coupled with the smell of marijuana, an evidentiary basis was found to arrest the accused. More importantly, earlier on when the officers conducted a CPIC check on the licence plate of the Morris vehicle, it revealed that the accused were said to be “armed and dangerous”. On the other hand, in Nartey, the discovery of these negative factors about the owner of the motor vehicle were determined to be part of a ‘fishing expedition’ and not in furtherance of the rationale to conduct a s. 216 H.T.A. stop. Even the fact that the officers in Nartey indicated that they smelled the odor of marijuana emanating from the motor vehicle was not given any credence in light of the other negative credibility findings.)

4. The Saskatchewan Court of Appeal also dealt with a similar reality in the case of R. v. Turpin. In that case, the trial judge determined that the investigating officer, a Constable Wilson, who was part of a ‘roving traffic unit’, and who arrived on scene after another officer, a constable Warner, had stopped a motor home initially believing that the driver might have been impaired, searched this motor vehicle under the pretext that it was stolen.

In this sense, the trial judge determined that the sole purpose that the officer had in concluding that the vehicle was stolen was to search the vehicle for drugs. The trial judge indicated, with respect to the actions of Constable Wilson as follows: “His inability to compare the two clearly matching vehicle identification numbers, if not the result of wilful blindness, was at least flagrantly negligent. But for that, he would not have arrested the accused because he had no grounds to do so.”

The Saskatchewan Court of Appeal then affirmed the trial judge’s determination that the drugs so found would be excluded based on the improper arrest of the accused and the fabricated or contrived evidence with respect to the basis upon which the officer determined that the motor home was stolen. In this sense, they followed, as they indicated, the factors as set forward in the decision of R. v. Grant.

5. In R. v. Dhillon, the British Columbia Court of Appeal found that a search of a motor vehicle was in contravention of the accused’s s. 8 Charter of Rights and Freedoms and excluded a discovered assault rifle found in the trunk of the accused’s motor vehicle.

In that case, the accused had indicated to an officer who was investigating an apparent fight in a parking lot (a fight that the officer concluded had never happened) that he was the owner of a motor vehicle that was at the parking area. The officer became suspicious that the driver was involved in the drug trade as a result of observing scissors and papers on the console of the motor vehicle and as well believed that he may have been in possession of firearms.

Contrary to the procedure as outline in the Supreme Court of Canada decision in R. v. Borden, the officer then asked the accused if he could search the trunk of his motor vehicle. When he indicated that the officer could as he had nothing to hide. The officer discovered the assault rifle in the motor vehicle.

The Appellate Court found firstly that the consent was invalid; secondly, that the accused was never under any investigated detention since the officer had already determined that no fight had ever occurred in the parking lot; and finally, that based on the decision in R. v. Grant, the exclusion of the weapon, pursuant to s. 24 (2), was warranted, based on the seriousness of the s. 8 breach of the accused’s Charter of Rights and Freedoms.

6. The decision of R. v. Pearson of the Alberta Court of Appeal took a somewhat different approach.

The facts are somewhat unusual. The accused was stopped for speeding on his way apparently back to Edmonton after dropping off his fiancé in Vancouver. The officer became suspicious of this explanation because the car was a rental from Edmonton and had been rented a mere day previously and thus had travelled a great distance in a very short time period. Furthermore, the accused’s explanation that he would drop off the car in Edmonton and look for a cheap flight back to Vancouver made little economic sense.

When the officer returned the documents of the accused, he leaned into the car’s window and observed that the accused’s hands were trembling and there was an intermittent faint odour of raw marijuana. The accused also appeared to be more nervous with his continued questioning and thus the officer’s suspicion was aroused.

Finally, the officer indicated that the accused was going to be formally detained and a police dog was to be brought in to determine if there were drugs present.

The dog’s action indicated the presence of narcotics and the accused was arrested and the car was then searched with large amounts of cocaine subsequently found in knapsacks in the trunk of the motor vehicle. The accused was subsequently charged with possession of a narcotic for the purpose of trafficking.

The Appellate Court concluded that a traffic stop was not a static event and as was the case in the Supreme Court of Canada decision in R. v. Nolet and information as it emerges may tend to lead the police to go further than what was initially intended at the roadside traffic stop.

In this case, the investigating officer subjectively had the following factors that caused him some concern:

a) The appellant was single, travelling alone in a usually typical tourist situation near Jasper National Park;

b) He had a British Columbia licence, which listed his residence in Richmond, B.C., but was driving a rental vehicle with an Alberta licence plate;

c) He also indicated that rental vehicles are often used by drug dealers in order to avoid having their own vehicle seized;

d) The rental agreement indicated that the car was rented the day before from Edmonton and yet the vehicle was approaching from the west travelling east;

e) The appellant’s residence was a known source province for drugs and thus this was consistent with the appellant being a drug courier;

f) Most importantly, was the faint odour of fresh marijuana emanating from the motor vehicle.

The Court also indicated that in accordance with their decision in R. v. Harding a strong smell of marijuana is sufficient to justify an arrest under s. 495 (1) of the Criminal Code but a faint smell would or could warrant the intervention of a sniffer dog as was suggested by Justice Binnie in the case of R. v. Kang-Brown, a decision of the Supreme Court of Canada.

The Court went on to hold that there was a violation of the accused s. 10 rights but the lower Court excluded any answers given by the accused as a remedy for this breach. The entire Court held that in referring to s. 24 (2) of the Charter of Rights and Freedoms that the breach was neither serious nor would it bring the administration of justice in disrepute. Two of the three Justices of Appeal did not find that there was an arbitrary detention and thus a violation of either s. 8 or s. 9 of the Charter of Rights and Freedoms.

7. The decision of Regina v. Plummer of the Ontario Court of Appeal clarifies just how far a police officer can go upon an investigative detention and pat-down search that discovers something that would cause any officer some concern for his safety and those of others. In that case, the Court of Appeal held that the detention and pat-down search were not in violation of the accused’s s. 8 or s. 9 Charter of Rights and Freedoms in light of circumstances that presented themselves to the police.

The facts are particularly noteworthy. The two officers in question observed a motor vehicle parked illegally in a fire zone opposite a residential address that they knew were involved with drug trafficking. In addition, they observed a male party in this motor vehicle appear to be ditching or hiding something in the motor vehicle.

Most importantly, when the officers approached the accused in the motor vehicle and the accused provided the officers with his name, this immediately raised a safety concern with one of the officers who had been made aware from an ‘Officer Safety Alert’ that this accused was known to possess a handgun and wear a bullet proof vest.

They asked the accused to step out of the car and a pat-down search revealed a bullet proof vest. A subsequent search of the motor vehicle found a hand gun in the female driver’s handbag.

At paragraph 58 Justice MacPherson states as follows:

If, as the appellant concedes, a pat-down search for safety reasons is permissible, why should a broader search (for example of a bag in a car) not be available if the result of the pat-down search (for example, discovery of a bullet proof vest) continues to present a reasonable safety concern? In my view, Mann answers this question at the level of principle. Mann circumscribes police conduct by reference to a valid protective purpose, not by whether the search is of the person, or of a particular place or object in the vicinity.

[13] Turning now to the facts in this case, the preliminary hearing transcript describes what the officer did upon stopping the accused for his Highway Traffic Act u-turn at the intersection of Walnut and Kathleen streets in the city of Sarnia. Sergeant Wilson was not called at the voir dire but what he stated during his examination-in-chief and cross-examination at the preliminary hearing were relied on by both the Crown and defence counsel.

[14] There is really no issue that the accused, Adam Dignam was having a bad evening. He locked his keys in his motor vehicle. He had a friend assist him only to leave the area with his friend’s cell phone wedged in the front window of his motor vehicle. He effected a u-turn at precisely the wrong time only to have Sergeant Wilson observe this infraction. He then left a folding knife used to pry open his window to place a coat hanger on the door handle on the console in the front seat. Finally, by extremely bad luck, he presumably had his son’s oversized baseball bat in the back seat of his motor vehicle in plain view.

[15] The officer upon attending to this traffic offence observed certain indicia that caused him some safety concerns:

a) The accused appeared to be “exceedingly nervous”;

b) The accused was agitated but not angry;

c) The officer knew the accused from past dealings with him and he had not appeared like that previously. In cross-examination, Sergeant Wilson revealed that he had dealt with the accused with respect to a drug investigation and he believed he had other contacts with the accused approximately 6 to 8 years previously;

d) The officer asked him if “he had any weapons or anything illegal” and he responded “I’m not a violent person”;

e) With respect to anything illegal, the accused indicated that “he didn’t want to say”;

f) Given his demeanour and answers the Sergeant stated “I began to feel there might be additional criminal activity involved, and because of my past knowledge of him, that suspicion of additional criminal activity is reinforced”;

g) The officer noticed a cell phone outside of the windshield right in front of where the driver would be and thought this was very unusual;

h) The accused produced his documents but his driver’s licence or insurance had expired and when he went back to the car he had to unlock it to get to the glove box to find the current one;

i) The officer observed a baseball bat in the backseat;

j) The accused indicated that the baseball bat belonged to his young son but the officer inferred that the bat would have been much too large to be used by his son. “I began to believe that he was being less than honest with me about the purpose of the bat”;

k) The officer also noticed a folding knife, blue coloured on the centre console;

l) In light of his past dealings with the accused, Sergeant Wilson stated “I became concerned that these items were in fact weapons on his person, especially where I had spoken to him earlier and he had been evasive in his answers;

m) The officer indicated that he told the accused his concerns “why I was detaining him, told him my concerns”;

[16] The officer then began to conduct a pat-down search. He checked his right front pocket first, where he found a large number of small ziploc bags of white powder. He then advised him that he was under arrest for possession of a controlled substance for the purpose of trafficking. He then continued to search him “and in his left front pocket I seized a large quantity of Canadian currency. There were a total of 32 packages totally 24 to 25 grams.

[17] In cross-examination, the Sergeant also indicated that through the Vice-Squad who were involved in drug investigations that Adam Dignam was a person of interest. In addition, while a baseball bat in the backseat of the motor vehicle posed no safety concern for the officer, this finding plus other indicia caused the officer to believe that there may have been more than one weapon. He stated in that regard:

There’s no reason to believe that a person would only have one weapon. Frequently, people who arm themselves, arm themselves with more than one weapon.

[18] Furthermore, in answer to questions about the baseball bat in the backseat of the car, the officer had formed an opinion that when the accused told him that it was his young sons that this was a “less than honest” as his young son could not have handled a bat of that size. This belief was not, as suggested by defence counsel, a bat used by the accused to hit balls to his son but specifically his son’s baseball bat. This was the basis for which the officer believed that this bat was a weapon. He stated in response to further questioning:

That’s what led me to believe that it was in fact a weapon and not actually a sports device.

[19] With respect to the eventual search of the accused, the Sergeant stated:

A. I determined the need to detain him, and therefore, checked to make sure he didn’t have any weapons on his person.

Q. Okay. And so I understand, at that point, you’re detaining him because of …..

A. The totality of circumstances. I’m sorry, I didn’t clarify that last answer, I’m sorry, ma’am, the totality. You asked me if it was the bat, it wasn’t just the bat, it was everything that I’ve just described, the totality.

[20] In further answer to defence counsel’s request to the officer to describe the “key points”, Sergeant Wilson indicated that it was “the bat and the knife in the car”.

[21] The officer also described how he conducted the search. He stated at page 33 of the preliminary hearing transcript as follows:

I told him, Mr. Dignam, I’m going to search you, I have concerns about weapons, I stood behind him, I put one, my left hand on the , about the middle of his back and grabbed his cloth, the cloth on his clothing, I started doing a pat-down from the outside. When I patted his right pocket, I felt a large lump. I determined that that was a, suspected cocaine, was cocaine. I had – at that point I stopped the frisk search and advised him he’s under arrest for possession of a controlled substance.

[22] Furthermore, in answer to how the cocaine became visible, he stated:

If feIt it, I mean, I’m doing a frisk search, I feel a big lump on his, in his pocket, I look at it, it’s clearly small Ziploc bags with white powder, and at that point, I stopped the frisk search and placed him under arrest….

I don’t know if I removed it or just pulled it up so I could see it, but I definitely. I definitely opened the pocket so I could see it. I don’t recall if I took it completely out or if I simply, realizing what it was, stopped right there and placed him under arrest. But I, yes, I removed it, he didn’t, if you’re asking if he removed it, he did not. I, I put it in a position that I could see it.

[23] When asked by defence counsel specifically in persistent cross-examination if the officer was thinking about the accused possessing drugs, he indicated in the most direct manner the following:

Was I thinking of drugs, categorically I was thinking of drugs, I was thinking of impaired driving, I was thinking of weapons, I was thinking of stolen property, I was thinking of criminal activity. I didn’t know what direction we were going, that’s why I was investigating ….

As part of that, as part of detaining him, based upon his behaviour and the observations of weapons inside the vehicle, I searched and determined it to ensure that he did not have additional weapons.

[24] Defence counsel submitted that the pat-down search made little sense if the inferred weapons were in the motor vehicle and that the real purpose of the pat-down was to discover if the accused had drugs on his person. Furthermore, defence counsel indicated that even if the pat-down was warranted, the viewing of the pocket with the drugs, or the turning of the pocket where the officer felt the large lump was a violation of the accused’s section 8 rights as the search was unreasonable in all the circumstances.

[25] Is there a difference between the facts in Mann and the circumstances that Sergeant Wilson experienced with the accused, Adam Dignam.?

[26] I conclude that there are significant and decidedly different cicrumstances. In Mann, the officers were rushing to a break and enter in progress with a named individual as the perpetuator. They observed someone they believed fit the description.

[27] However, when detained, they discovered that the accused had a different name than the person indicated by the dispatcher as the perpetuator, he had no objects on his person save and except a soft ball in one of his pockets and “he was wearing a sweater not a black jacket with white sleeves”. The turning out of the pocket and the discovery of the 27.5 grams of marijuana was found to be a serious breach of the accused’s s. 8 rights and the evidence was ultimately excluded pursuant to s. 24 (2) of the Charter of Rights and Freedoms.

[28] In this case, the investigating officer, did not stop a stranger on the street after believing him to be involved in a break and enter but was legitimately asking questions and receiving answers from someone who had just committed a traffic violation; someone with whom he had criminal dealings with previously; someone who appeared nervous and agitated; someone who answered a question about weapons in an evasive manner; someone who refused to answer questions about whether he was involved in anything illegally; someone who he observed had a baseball bat in the rear seat of his car and who indicated that the bat belonged to a young person who could not have physically managed the bat; he also observed a folding knife on the console; and finally, when the officer determined that a pat-down search was warranted given all of the totality of these circumstances, he felt a “large” lump in the front jack pocket of the accused that was seen to contain baggies of white substance.

[29] In my view, the investigated detention for officer safety was warranted as was the pat-down search. Certainly, even if I am wrong on any violations of s. 8 or s. 9 of the Charter of Rights and Freedoms, the Grant and Harrison analysis with respect to the exclusion of the evidence would lead me to affirm that any breach was brief, without any bad faith conduct on the part of the investigating officer, and the administration of justice would be placed in disrepute only if the evidence so found in these circumstances was excluded.

[30] In the result, the application to exclude the controlled substance so found on the accused, Adam Dignam, pursuant to s. 24 (2) of the Charter of Rights and Freedoms is dismissed

“Justice J.A. Desotti”

The Honourable Mr. Justice J.A. Desotti

Released: June 26, 2013

CASES CONSIDERED

R v Pearson, 2012 ABCA 239, 289 C.C.C. (3d) 1; R. v. Dhillon, 2012 BCCA 254, 291 C.C.C. (3d) 93; R. v. Turpin, 2012 SKCA 50, 284 C.C.C. (3d) 296; R. v. Meyers, 2012 BCPC 50, 284 C.C.C. (3d) 248; R. v. Borden, 1994 63 (SCC), 92 C.C.C. (3d) 404; Kang-Brown v. The Queen: Attorney General of Ontario et al., Interveners, 2008 SCC 18, 230 C.C.C. (3d) 289; R. v. Aucoin, 2012 SCC 66, 290 C.C.C. (3d) 448; R. v. Polashek¸134 C.C.C. (3d) 188; R. v Nartey, 2013 ONCA 215; R. v. Morris, 2013 ONCA 223; R. v. Williams, 2013 ONSC 1399; R. v. Nolet, 2010 SCC 24; R. v. Plummer, (2011) 2011 ONCA 350, 272 C.C.C. (3d) 172; R. v. Pearson, (2012) 289 C.C.C. (3d) 1; R. v. Golub, (1997) 1997 6316 (ON CA), 117 C.C.C. (3d) 193; R. v. Annett 1984 3450 (ON CA), [1984] O.J. No. 192; R. v. Caprara, 2006 18518 (ON CA), [2006] 211 O.A.C. 211; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.); R. v. Simpson, (1993) 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (O.C.A.); R. v Mellenthin, (1992) 1992 50 (SCC), 76 C.C.C. (3d) 481 (S.C.C.); R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725; R. v. Mann, [2004] S.C.R. 59; R. v. Bilodeau, 2004 45922 (QC CA), [2004] 192 C.C.C. (3d) 110 (Quebec C.A.); R. v Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460; Hunter v Southam, (1984), 1984 33 (SCC), 14 C.C.C. (3d) 97 (S.C.C.); R. v Nicolosi, (1998), 1998 2006 (ON CA), 127 C.C.C. (3d) 176 (Ont. C of A); R. v. Backhouse, 2005 4937 (ON CA), [2005] O.J. No. 754, at par 115; R. v. Poulin, [2004] O.J. No. 1354 at 12 (Ont. Sup. Ct-Abbey, J.); R. v. Brown, [2003] O.J. No. 5089 (Ont. Sup. Crt); R. v. Buhay, (2003), 2003 SCC 30, 174 C.C.C. (3d) 97 (S.C.C.); R. v. Caslake, [1995] S.C.C.A. No. 515

CITATION: R. v. Dignam, 2013 ONSC 4419

COURT FILE NO.: 1627/12

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ADAM RONALD JEFFREY DIGNAM

r u l i n g

DESOTTI, J.

Released: June 26, 2013