ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20140416

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

ANDRES ALFREDO CEBALLOS
Applicant

Ian Bell for the Respondent

Stacey Nichols for the Applicant

HEARD: March 25-28, 2014

Ruling re Application to Exclude Evidence Under s. 24(2) of the Charter

MacDonnell J.

[1] This is a ruling on an application by Andres Ceballos pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms for an order excluding evidence of the finding of approximately 330 grams of cocaine in the rear cargo area of his Lexus SUV. The cocaine was discovered by the police after they pulled Mr. Ceballos over near the intersection of St. Clair Avenue West and Caledonia Road shortly after 4:00 p.m. on August 3, 2011.

[2] The position of Mr. Ceballos is that the police pulled him over for the purposes of a criminal investigation and that they did so without articulable cause. Therefore, he submits, the detention was arbitrary and an infringement of s. 9 of the Charter. He alleges that the police then embarked on a warrantless search of his motor vehicle, in the course of which they discovered the cocaine. He submits that the search was not authorized by law and that it constituted a breach of his rights under s. 8 of the Charter. He submits that in the circumstances to admit the fruits of the search could bring the administration of justice into disrepute.

[3] The position of the Crown is that Mr. Ceballos was pulled over under the authority of s. 216 of the Highway Traffic Act (HTA) for investigation of suspected contraventions of the HTA. The Crown submits that the police had a reasonable basis for their suspicions and thus that neither the exercise of the power to stop nor the brief detention that followed were arbitrary. The Crown submits that the detention never became a criminal investigation until after the discovery of the cocaine. The Crown denies that the cocaine was discovered in the course of a search. Rather, the Crown submits, it was observed lying in plain view on the floor of the cargo area when one of the officers looked through the rear window of the vehicle. Because there was no search, the Crown submits, there was no violation of s. 8.

I. The Evidence

[4] The officers who dealt with Mr. Ceballos at the material time were Constables Russo, Haroon, Heffernan and Metzger. They were assigned to the TAVIS program of the Toronto Police Service. TAVIS is an acronym for Toronto Anti-Violence Intervention Strategy. The aim of the program is to reduce incidents of crime by bolstering the visible police presence in selected areas of the city. The areas to which TAVIS officers are assigned may vary from day to day.

[5] On August 3, 2011, Russo, Haroon, Heffernan and Metzger were working together in 22 Division, in the west end of the city. They were patrolling the area in full uniform in an unmarked police minivan. Constable Haroon was driving, Russo was in the front passenger seat and Heffernan and Metzger were in the rear. At approximately 4:00 p.m. they found themselves proceeding westbound on St. Clair Avenue, just west of Dufferin Street.

[6] Both Constable Russo and Constable Haroon testified that at this time they observed a Lexus SUV make a right turn from southbound Harvie Avenue onto westbound St. Clair without signaling. The officers decided to run the license plate of the SUV through their onboard police computer. They learned that the registered owner of the vehicle was unlicensed and that he was awaiting trial for an ‘over 80’ offence and for possession of cocaine. Upon receipt of that information, Russo and Haroon jointly decided to pull the vehicle over. Both officers testified that their purpose was to ensure that the person operating it was a licensed driver.

[7] Haroon positioned the police minivan behind the Lexus and activated the emergency lights on his dashboard. According to the officers, the SUV did not pull over when the lights were activated but instead speeded up. In fairness, traffic was busy at the time and it would have been difficult for the SUV to pull over on St. Clair Avenue without blocking one of the two live westbound lanes. The SUV made a right turn onto northbound Caledonia Road and then turned right again, into the parking lot of a bakery a short distance north of St. Clair Avenue. It came to a stop in a handicapped parking space, facing south. The police minivan stopped behind it, facing east.

[8] At that point, all four officers got out. Russo and Haroon proceeded to the driver’s side of the SUV, and Heffernan and Metzger went to the passenger side. The lone occupant of the SUV was the driver, Mr. Ceballos.

(ii) the evidence of Constable Russo

[9] Constable Russo testified that he approached the driver’s door of the SUV, told Mr. Ceballos that he had been stopped because he had failed to signal a turn and because the registered owner of the vehicle was unlicensed. He asked Mr. Ceballos for his driver’s license, ownership and proof of insurance. He testified that Mr. Ceballos appeared to be extremely nervous, that he was breathing heavily and that his arms were trembling. He likened the trembling to that of a person having convulsions or seizures, although he did not think that Mr. Ceballos was actually having a seizure.

[10] Mr. Ceballos produced his driving documents and Russo handed them to Haroon, who went to the police minivan to check them through the computer. Meanwhile, Russo continued his conversation with Mr. Ceballos. He testified that he told Mr. Ceballos that he did not have to be so nervous, that he should take a few deep breaths. He asked him if he was feeling okay, and Mr. Ceballos said that he was. He asked him if he was diabetic or had low blood sugar, and Mr. Ceballos said no. He asked Mr. Ceballos whether he was on medication or had consumed drugs or alcohol, and again Mr. Ceballos said no.

[11] When Haroon returned, Russo told him that Mr. Ceballos appeared to be very nervous. Russo opened the driver’s door and asked Mr. Ceballos to step out. He made this request, he testified, because of concerns about Mr. Ceballos’s health and about his fitness to operate a motor vehicle. He did not know whether to believe Mr. Ceballos’s denial of medical issues, and he did not think that he could make a proper judgment in that respect while Mr. Ceballos was sitting inside the SUV. Until that issue was resolved he did not want Mr. Ceballos to be behind the wheel. Getting Mr. Ceballos out of the confined space of the driver’s seat and onto his feet in the fresh air appeared to Russo to be the best way to assess what his problem was.

[12] After Mr. Ceballos got out, Russo directed him to the rear of the SUV. He conceded that he could have assessed Mr. Ceballos’s condition equally well at the driver’s door. He had no explanation for directing him to the rear of the SUV, it was just something that he did. He testified that when Mr. Ceballos stopped at the back of the SUV, Haroon asked him to continue toward the minivan. As Mr. Ceballos began to make his way there, Russo observed him turn and look back, first at Russo and then at the rear of the SUV.

[13] Russo testified that as a result of the glance that Mr. Ceballos had taken toward his vehicle, he decided to take a look through the rear window. When combined with the observations of Mr. Ceballos he had made earlier, the glance caused him to be suspicious. He testified that it was a generalized suspicion, not necessarily one about criminal activity. He testified that he had no particular reason to look into the vehicle and that he had not given any thought as to what he might find inside. He agreed that he did not have safety concerns at this point.

[14] The window at the rear of the SUV was tinted, and Russo had to put his face close to it in order to see into the cargo area. When he did, he saw a stroller, a bag of clothing, a gym bag and a small blue gift bag. The gift bag had been tipped over and was lying on its side on the floor. A clear zip lock bag was hanging out of the mouth of the gift bag. Russo could not recall if the zip lock bag was entirely or only partially out of the gift bag. Inside the zip lock bag, Russo testified, he could see a chunk of a white powdery substance that he believed to be cocaine. Upon observing the cocaine, Constable Russo walked over to Mr. Ceballos and placed him under arrest for possession of cocaine. The SUV was then searched, and the cocaine was seized.

(…continued verbatim…)

[79] There was no infringement of s. 8.

IV. Disposition

[80] The application to exclude the evidence of the finding of the cocaine in the rear of Mr. Ceballos’s SUV is dismissed.

MacDonnell J.

Released: April 16, 2014

[1] At paragraph 108