ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 12-21
DATE: 2013-12-30
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Andrew Shawn O’Laney and Brandon Jourdin
Applicants
David Holmes, for the Crown
Larry Douglas, for Andrew O’Laney and Rosario Romano for Brandon Jourdin
HEARD: December 2, 4, 5 and 6, 2013
O’Neill, j
Reasons on Application
A: Introduction
[1] On this Application, the court is required to measure the actions of police authorities in relation to the two accused, as weighed against the Canadian Charter of Rights and Freedoms. If Charter rights have been breached, this court must then determine whether in accordance with s. 24(2) of the Charter, the evidence forming the subject matter of the charges is to be excluded from the trial.
B: Background Facts
[2] The underlying facts are, for the most part, not in dispute. I reproduce below portions of paragraphs 1 to 4 from Brandon Jourdin’s Memorandum of Law:
On October 21, 2011, at approximately 8:52 p.m. police noted a red vehicle travelling at a high rate of speed on Highway 400. Police followed the motor vehicle for approximately 5 kilometres and used their radar device to determine that the vehicle was travelling at a rate of 122 kilometres per hour in a posted 100 kilometre per hour zone. While following the motor vehicle police conducted an MTO query of the licence plate BJBD779. The vehicle came back registered to a Brandon Jourdin, who was flagged as a suspended driver. The vehicle was a 4-door red 2008 Lincoln MKA.
Shortly thereafter Constable Kewaquado stopped the motor vehicle and found that the driver was in fact Brandon Jourdin. Mr. Jourdin indicated to Constable Kewaquado that he was unaware of his current driver’s licence suspension. Mr. Jourdin was arrested for driving while under suspension and was given a police pat down search for weapons and was placed in the rear seat of the police vehicle. Mr. Jourdin was advised that the vehicle would be impounded for 7 days and an inventory search would be conducted. Police thereafter spoke with the passenger, Mr. Andrew O’Laney. Constable Kewaquado advised Mr. O’Laney that the vehicle was going to be impounded and that he would be given a pat down search before being placed in the police vehicle. Constable Kewaquado had already requested and received from Mr. O’Laney his identification and had run his name through the CPIC database and had learned that he was under a current firearms prohibition, due to a robbery conviction.
Constable Kewaquado, in the course of his pat down search of Mr. O’Laney, discovered an Export ‘A’ cigarette pack within Mr. O’Laney’s pant leg. Within the cigarette pack was a small Ziploc baggie which contained approximately 3-4 grams of suspected cocaine. Mr. O’Laney was arrested for possession of the cocaine.
Constable Kewaquado then returned to the police vehicle and spoke with Mr. Jourdin in the rear of the vehicle and advised him that “his jeopardy had changed and that he was now under arrest for possession of cocaine.” Police then conducted a search of the motor vehicle and located in the rear seat a package containing approximately 128 grams of suspected cocaine.
[3] The cocaine was located in the pocket of a coat, in the rear of the motor vehicle, directly behind the driver’s seat. The brick of cocaine was wrapped in plastic and its dimensions were approximately 1 ½ inches by 1 ½ inches by 1 inch.
C: The Underlying Charter Issues
[4] The outstanding issues are summarized in the aforementioned Memorandum of Law. Others were developed and dealt with on the hearing of the Application before me. I summarize the outstanding Charter issues as follows:
i. Were Mr. O’Laney’s rights breached when the police requested identification from him, and when his health card was used to carry out a CPIC check?
ii. Was the pat-down search of Mr. O’Laney permitted, and if so was it conducted properly?
iii. Were there reasonable grounds to arrest Mr. Jourdin for simple possession?
iv. Was the search of the motor vehicle, and the taking possession of the 128 grams of cocaine, justified on a Charter analysis?
D: Analysis and Findings
i. Were Mr. O’Laney’s rights breached when the police requested identification from him, and when his health card was used to carry out a CPIC check?
[5] I begin by finding that the weight of the evidence demonstrates that Mr. Jourdin was stopped for speeding 122 kilometres per hour in a 100 kilometre per hour zone. Counsel for Mr. Jourdin pressed the point on the Application that Officers Kewaquado and Dunlop had been warned to be on the lookout for a northbound red Lincoln motor vehicle on the evening in question. However, I am satisfied from both the notebook entries, the evidence given by the officers, and the fact that Officer Dunlop was being returned to his home after working an approximately 13 ½ hour shift, that the OPP officers had not been advised or provided with information leading them to look for and arbitrarily stop the northbound Lincoln motor vehicle.
[6] I conclude as a matter of law that Mr. O’Laney was detained shortly after Officer Dunlop entered into casual conversation with him, and “decided to ask the passenger for his ID”. Mr. O’Laney complied reasonably believing that he had no choice. I come to this conclusion for several reasons: The northbound Lincoln motor vehicle was stopped after it was followed for 5 kilometres by a marked police cruiser. The police cruiser lights were activated. Officer Dunlop walked over to the passenger’s side window and was standing only a few feet from the seated passenger. It was dark outside and the officer used his flashlight to shine inside the vehicle. Officer Dunlop was wearing and in possession of his use of force equipment.
[7] At the same time that this occurred, Officer Kewaquado was speaking to the driver and requesting his identification. In these circumstances, as they existed on the evening in question, I conclude that Mr. O’Laney was under a form of psychological restraint constituting detention in law. Physically, he was in a stopped motor vehicle and he was behind a closed door when Officer Dunlop requested identification. The passenger window was open. I conclude that Mr. O’Laney would reasonably understand that he was under compulsion to produce his ID (which in this case was a health card) when requested to do so by the officer.
See: R v. Harris, 2007 ONCA 574, [2007] O.J. No. 3185, R v. Mellenthin 1992 SCC 50, [1992] S.C.J. No. 100, R v. Pinto, [2003] O.J. No. 5172
[8] I accept, under the facts of this specific case, the submission made by counsel for Mr. Jourdin at paragraph 18 of the Memorandum of Law:
There was no valid or informed consent given to police, by O’Laney, which would permit the police to request from him his name and identification. In fact, he initially refused requests, but on further pressure from the officers he provided them with his name. The law is clear that, absent an informed consent, he was under a psychological detention, which was arbitrary in the circumstances.
[9] With respect to the use of the health card provided by Mr. O’Laney to carry out a CPIC search, in the context of an alleged unreasonable search and seizure, I reproduce paragraphs 34, 38, 40 and 41 of Doherty J.A.’s decision in Harris, supra:
Answers to police questions may or may not give rise to an s. 8 claim. As with other aspects of the s.8 inquiry, a fact-specific examination of the circumstances is necessary. Where the subject of the questioning is under police detention and reasonably believes that he or she is compelled to provide the information sought in the questions, I do not think it distorts the concept of a seizure to describe the receipt of the information by the police as a non-consensual taking of that information from the detained person.
The Crown next argues that a person has no or, at its highest, a minimal expectation of privacy in his or her name. The Crown submits that merely providing one's name reveals little, if anything, of any personal nature concerning that person. In some contexts, there will be considerable merit to this submission. However, in the present case, Harris was under police detention. Lipkus was not asking Harris to identify himself out of some sense of curiosity or so he could greet Harris by name should they meet again. Lipkus had a very specific purpose in mind when he asked for identification. He intended to use that identification to access a wealth of personal information about Harris before allowing Harris to proceed on his way. That information included whether Harris had a criminal record, was subject to any outstanding court orders and, if so, the terms of those orders. Although Crown counsel submits that the officer's request for identification was "not directed at obtaining incriminating information in relation to unrelated criminal conduct", I think that was precisely one of the reasons Lipkus asked Harris for identification. Why else would Lipkus use the identification to determine whether Harris was in breach of any outstanding court orders?
A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police: R. v. Hebert, (1990), 1990 SCC 118, 57 C.C.C (3d) 1 (S.C.C.). In the circumstances, Harris's identification in response to the officer's question constitutes a seizure and attracts s. 8 protection.
The seizure was unreasonable. As in Mellenthin, Lipkus had no reason to suspect Harris of anything when he questioned him and requested his identification. The purpose for the stop and the consequential detention of Harris and the other occupants of the vehicle had nothing to do with the request for Harris's identification. The purpose of the stop did not justify an at large inquiry into Harris's background or his status in the criminal justice system. That was the effect of the request for identification. Just as in Mellenthin, Lipkus expanded a Highway Traffic Act stop into a broader and unrelated inquiry. Harris’s identification of himself provided the entrée into that broader and unrelated inquiry.
[10] Accordingly, I conclude that the answer to issue number one is yes.
E: Conclusion
For all of these reasons, the within application is hereby dismissed.
Justice J.S. O’Neill
Released: December 30, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
Andrew Shawn O’Laney and Brandon Jourdin
Applicant
REASONS on application
J. S. O’Neill
Released: December 30, 2013