COURT FILE NO.: CRIMJ(F) 1676/12
DATE: 20140611
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. J. Campitelli, for the Respondent
Respondent
- and -
QUOC LAM
R. Rusonik, for the Applicant
Applicant
HEARD: March 31, and April 1-4, 14, 17, 2014
REASONS FOR JUDGMENT
Pursuant to S. 517 of the Criminal Code of Canada, a non-publication, non-broadcast, non-transmittal order has been made by The Honourable Justice Hill pending completion of the trial of this matter or otherwise ordered by the Court.
HILL J.
TABLE OF CONTENTS
Para. No.
INTRODUCTION......................................................................................... 1
FACTUAL BACKGROUND.......................................................................... 4
The First Sighting of the Applicant........................................................ 4
The May 11, 2010 Detention/Searches/Questioning.............................. 29
The September 13, 2010 Observation................................................... 79
September 14, 2010 – The Coincidence.............................................. 105
Warrantless Entry to Locker/Arrest of Applicant................................ 125
ANALYSIS.............................................................................................. 160
The May 11, 2010 Detention of the Applicant...................................... 160
Positions of the Parties................................................................... 160
The Applicant............................................................................. 160
The Crown.................................................................................. 168
Fact Finding and Conclusions......................................................... 175
Arbitrary Detention.................................................................... 175
Unreasonable Searches.............................................................. 211
Right to Counsel........................................................................ 228
Voluntariness............................................................................. 232
The September 14, 2010 Arrest and Searches.................................... 242
Positions of the Parties................................................................... 242
The Applicant............................................................................. 242
The Crown.................................................................................. 264
Fact Finding and Conclusions......................................................... 274
Unreasonable Search................................................................. 274
Admission/Exclusion of Evidence.............................................. 281
Principles Applied to the Facts.................................................. 295
CONCLUSION......................................................................................... 348
INTRODUCTION
[1] Quoc Lam has a trade. He is a drug trafficker.
[2] On September 14, 2010, he was arrested by the police in his rented self-storage locker in Mississauga in possession of over 54 kg of marihuana and over $100,000 in cash. In an effort to avoid criminal charges, he tried to bribe the arresting officers.
[3] Submitting that the police violated his ss. 8, 9 and 10(b) Charter rights, the applicant seeks to have the marihuana, the seized currency, and the evidence of bribes excluded from evidence in his trial.
FACTUAL BACKGROUND
The First Sighting of the Applicant
[4] In the afternoon of May 11, 2010, Peel Regional Police Service (PRPS) Constables Brabant and Irwin of the 12 Division Neighbourhood Policing Unit attended 310 Burnhamthorpe Road West in Mississauga, a high-rise condo apartment building, to investigate a female party. When they discovered that the person they were looking for had moved, they returned to their cruiser which was backed into a parking space off the round-about curving in front of the building. Constable Brabant was in the driver’s seat.
[5] On the officers’ evidence, as they were parked writing up their notes, a 1999 Acura vehicle (Lic. Plate #AZWL 570) drove by the front or nose of the cruiser. Neither saw where the vehicle came from. There were two occupants. Within minutes, the police would learn that the passenger was Quoc Lam. Mr. Lam, on the other hand, testified that his friend, Khoe Nguyen, in his mother’s Acura, was parked in the round-about by the front door of the building waiting for him to come down so that they could go to a Vietnamese restaurant on Dundas Street in Mississauga. On the applicant’s evidence, as he and Nguyen exited the property they did not pass in front of the police cruiser.
[6] The applicant testified that his mother is Vietnamese and his father is Chinese.
[7] Constables Brabant and Irwin testified that they had received by email a Confidential Intelligence Report (Ex. #25) dated April 6, 2010 from Consts. Lobo and Adams of the PRPS Street Crime Gang Unit relating to Thanh Van Huynh (D.O.B. June 11/88), a person for whom an arrest warrant existed for breach of probation. The Report included a photograph of Huynh and, as referenced in the heavily redacted version of the Report filed in this proceeding, an indication that Huynh had a tattoo on his forearm (“THANH”). It was believed that Huynh might be in the Mississauga area.
[8] Const. Brabant was unable to recall when he had last seen the Report prior to May 11, 2010. In March of 2008, he had arrested Huynh for drug and weapons offences. On that occasion, another officer processed the arrestee. Const. Irwin recalled that he had seen the Report sometime after April 16. He was unable to say when he last reviewed the Report but it was “well before” May 11, 2010. He had never dealt with Huynh or seen any other photo of the suspect.
[9] Const. Brabant informed the court that he understood that Asian gangs were operating in Mississauga. In the weeks prior to May 11, if he had suspicions that someone was a gang member, he “would have actively investigated them”. He understood that a tattoo on an individual could reveal gang membership.
[10] The police witnesses did not indicate their precise distance from the Acura vehicle they described as passing their position or the length of time they had to view the vehicle’s occupants. At the time, the officers, on their evidence, were not on surveillance, but were engaged in writing notes:
Const. Brabant: I was sitting with Const. Irwin writing notes.
At that point, I was writing notes.
Const. Irwin: …when I looked up, it was going past us.
[11] Const. Brabant testified that on May 11, 2010, he had a number of descriptions in his mind of persons he was looking for. He had not been looking for Huynh daily. He testified that he thought the passenger in the Acura “was possibly” the person who was the subject of the April 2010 Report from Consts. Lobo and Adams – it “was possibly him”. In his view, the person “resembled” the wanted party – “That was possibly him. I thought it resembled him”. Asked why he formed this view, the officer gave this evidence:
Q. …why did you think that?
A. I - - I felt he resembled him in - - physical appearance…
Q. …and why did you think that?
A. Again, the physical appearance of him. They had a similar round face. I felt the hair colour, the - - from what, from what I could see when they drove by, I believed they had similar characteristics.
[12] In cross-examination, the constable stated:
Q. Are you in the habit of detaining people merely because they bear a resemblance to someone else?
A. No.
Q. There is a passage in your notes, or in the notes that you’ve made for May 11th, 2010, correct me if I'm wrong, but it reads exactly as -- as follows: Vehicle - indicated veh. - investigated as pass believed to resemble a wanted party. Do I have that correct?
A. Yes.
…my understanding was that -- again, it -- they -- I believed it was possibly this person. I reason -- I had reason to believe that it was possibly this person. I didn't have reasonable grounds, I didn't believe, however, I would have reasonably suspected.
Q. … what … was your reasonable basis...for suspecting that the passenger was Huynh?
A. I observed the person, and I believed they resembled them. I spoke with my person, who had observed the person, and believe they resembled them.
Q. On what basis do you believe that one resembled the other?
A. From my recollection of what they look like.
Q. And how did you believe that they look the same, sir?
A. Their general physical characteristics.
A. I had an opportunity to observe him as he was driving by. I believed the general characteristics of his face resembled Mr. Huynh’s.
Q. Well, yesterday you said it was the hair colour and the shape of the face. You said that they both had round faces. Do you remember that?
A. Yes.
Q. Is there any other characteristics that you say matched?
A. The nose, the lips, the ears.
Q. The nose, the lips and the ears all matched.
A. Somewhat, yes.
Q. Somewhat?
A. Yes, sir.
Q. What does somewhat mean?
A. Well, when a car's passing by, I saw the person. I had a brief opportunity to observe them, and I believe they somewhat -- it looked like them somewhat, and I needed, obviously, to further that by speaking to that person.
Q. Are you claiming that it ever rose past merely noting a resemblance between the two men on May 11th, 2010?
A. Sorry, no, it didn't…
Q. Okay. So no, it never rose past merely noting a resemblance. That's the highest it got, at any point?
A. That's right.
Q. The mere noting of a resemblance. Is that right?
A. Yes, sir.
[13] Again in cross-examination, Const. Brabant was questioned about the comparative appearances of Huynh and the applicant:
Q. You've said that one of the characteristics that led you to believe that it was the same person was that they both have round faces.
A. Yes, sir.
Q. I'm suggesting to you that Mr. Huynh’s face is clearly oval, sir, in shape, is it not?
A. It looks round to me, sir.
Q. That looks round to you, as you look at it, is it?
A. Yeah, it's got a roundish shape to it, Yes.
Q. I'm going to suggest to you that Mr. Lam's face is, if anything, closer to square than round, is it not?
A. Still appears somewhat round to me, sir.
Q. You said that their hair colour was the same.
A. Yes.
Q. Do you consider hair colour to be a distinguishing feature between most people of Asian descent?
A. Not typically sir, but people can change their hair colour very easily.
Q. What do you mean by that? Why have you added that?
A. Just 'cause your hair's brown, doesn't mean you can't make it another colour.
Q. I understand. But you would agree that the vast majority of Asian individuals that you've encountered have brown to black hair.
A. I would agree with that, yes, sir.
Q. So it's not in any way a distinguishing feature of Asians, if they have brown -- if they have brown or black hair. Dark brown or black hair. Would you agree with that?
A. It's not a -- an absolutely conditional feature. Obviously, some people could have silver hair, with age. It's not absolutely Asians always have brown hair, no.
[14] As to the lips of the two individuals, Const. Brabant stated that both the wanted party and the Acura passenger appeared to have full lips. Questioned by Mr. Rusonik on the photos of these persons, when it was suggested that the applicant in fact had a narrow upper lip, the officer stated: “Still looks pretty full”. When counsel suggested that Huynh’s eyebrows had a slight arch while the applicant’s were straight across, the witness replied that he thought Mr. Lam’s eyebrows also had a slight arch.
[15] Const. Brabant testified that he shared his belief with his partner respecting Huynh that “it was possibly him”.
[16] Const. Irwin’s in-chief testimony included these observations:
I believed [the passenger] to resemble another party who we knew that was wanted.
…I believed they had a - - a similar description, given that they both had a round, full face. Their approximate age. Obviously, gender. Short, black hair. I felt that it resembled Mr. Thanh Huynh.
…it looked similar to Thanh Huynh.
[17] Under cross-examination, the officer gave this evidence:
Q. …you had noted a resemblance between the passenger of the vehicle and this fellow Huynh…?
A. Correct.
Appears to be a similar description of a party who is believed to be - - or is arrestable.
Q. …when you first saw him cross the nose of your vehicle…you believe that it was possible that he could be the wanted party, Huynh?
A. Yes.
Q. Did your belief rise beyond that?
A. No.
[18] In cross-examination, Const. Irwin agreed that human faces can generally be classed as round, oval or squarish in shape. Asked whether Huynh’s photo showed a perfect example of an oval-shaped face, the officer replied: “I would agree with that, for the most part, other than the cheeks are, to me, and the chin are rounded”. The questioning continued:
Q. I ask you that, sir, because it’s your position that the two individuals matched and you believed they matched at 310 Burnhamthorpe because they both had round faces, isn’t it?
A. Yes, like round, full faces in their - - maybe in the lower part of their cheeks and chin.
[19] At the preliminary inquiry, Const. Irwin testified that as he was unfamiliar with Huynh, his image of what the wanted party looked like was dependent on his memory of the Intelligence Report photo. In that proceeding, the officer also stated: “Did he change his appearance? I'm unfamiliar with Mr. Lam, and until I’m satisfied, I didn't release him.” Cross-examined here as to what this answer meant, the witness gave this evidence:
Well, either individual, be it Mr. Huynh or Mr. Lam, either one of them could have changed their appearance at any time, longer hair, shorter hair, bald, you know, lost weight, put on weight. Mr. Huynh could have easily changed his -- his appearance. So he was in -- put under investigative detention for the reason of his identity to determine who he was.
Q. Sir, if you think someone might have changed their appearance, it means that their appearance, in your mind, did not match the person that you had in mind, doesn't it?
A. No. I stated that I was unfamiliar with Mr. Huynh at that time and ‘til I was satisfied with his identification he was not released.
Q. Are you in the habit of detaining people merely because they bear a resemblance to someone else?
A. No.
Q. But that's all you had here, isn't it, that it....
A. That's right.
[20] In cross-examination, the officers were pressed as to their ability to differentiate between the identity of young Asian males. Const. Brabant gave this evidence:
Q. Aside from the fact that they are both Asian males, how do they look the same, sir?
A. They appeared similar to me. They appeared similar to me, sir.
Q. What -- first of all, are you familiar with the term - if I use the terms cross-racial identification, does that ring a bell for you? Does that have any meaning to you?
A. No, sir.
Q. Are you trained as a police officer in the dangers, in the frailties of cross-racial identification?
A. No, sir.
Q. All right. To make sure that we're talking about the same thing, because you -- you've conceded that you're not familiar with the term, are you trained by the Peel Police Service that there are dangers inherent in a person of one race attempting to identify accurately a person from another race, to discern one person from another race from another person of that race?
A. No, I'm not.
Q. No such training whatsoever?
A. No, sir.
[21] On this point, Const. Irwin gave this evidence:
Q. How were you planning to tell Mr. Huynh apart from all of the, apparently, other Asian males that he resembled in Peel because the resemblance here, you said was on the basis of a round face and black hair? How were you planning to tell him apart from all of the other Asian males with round faces and black hair in Peel, if he didn't have proper identification and -- and denied who he was?
A. By clearing him on our system.
Q. If I use the term, "racial profiling" in the context of an officer's decision to stop a motor vehicle on the roadway, if I say the officer engaged in racial profiling in deciding to stop a motor vehicle, what do you understand the term to mean?
A. You're stopping that person based on his -- his ethnicity.
Q. Okay. If I use the term, "cross-racial identification," does that have significance to you? Does that mean anything to you?
A. Cross-racial identification?
Q. Yeah.
A. No.
Q. All right. Did that term ever come up? I guess it -- you -- it didn't, never come up in the course of your training as a police officer that you can remember?
A. Well, no, this is -- I don't even know what it means.
Q. Okay. Are you trained by the Peel Police Service that there are dangers inherent in a person of one race attempting to accurately identify a person from another race to discern one person of another race from another person of that race? Do you follow what I'm talking about?
A. Say -- can you say that again?
Q. Sure. Cross-racial identification, when I use the term...
A. Right.
Q. ...I'm using it to refer to the problems inherent -- the dangers inherent in a person of one race, say, Caucasian...
A. Okay.
Q. ...attempting to accurately identify a person from another race to discern one person of that other race, say, Chinese, from another person of that race? Do you understand what I'm talking about now?
A. I believe I do, yeah.
Q. Okay. Have you ever been trained by your service that there are, indeed, dangers and problems inherent in doing that?
A. The cross-race identification?
Q. Yeah.
A. Yeah, I've never had training on it, so.
Q. Okay. Have -- that term you just used, cross-race identification, but is that a term that you're familiar with for the same...
A. Sorry, is that...
Q. ...concept that...
A. ...not what...
Q. ...we've been discussing?
A. ...you called it?
Q. I called it cross-racial?
A. Racial. Okay. I -- I've never had training on it.
[22] The police witnesses testified that after the Acura passed their location, the licence plate of the vehicle was queried through the in-cruiser mobile data terminal or computer and the Acura was followed. The cruiser’s unit history (Ex. #26) identifies the query being made at 3:35 p.m. The witnesses maintained that they were on the road in rush-hour traffic conditions, passing six roads controlled by traffic lights, following the Acura for just under 1.9 k over about 11 minutes before the car was stopped at 3:45 p.m.
[23] The cruiser’s unit history shows queries were made of the licence plates of two other vehicles at 3:36 p.m. and 3:43 p.m. respectively – the later query by an officer with badge #2957 which is Const. Brabant. The officers were unable to say why other vehicles’ plates were queried if they were intent on not losing the Acura in the traffic. The defence suggested that the officers were “surfing” plates while parked at the 310 Burnhamthorpe location including the Acura as it sat parked at the front door awaiting the applicant’s arrival.
[24] Const. Irwin’s notes record “15:41-10-8” which he agreed would note being in-service at 3:41 p.m. and clear of the 310 Burnhamthorpe investigation having completed that call. Pressed in cross-examination, Const. Irwin gave this evidence:
Q. They were run, sir, not because you were following -- while you were following, they were run while you were sitting there still in the parking lot at 310 Burnhamthorpe West, weren't they?
A. Again, I don't recall where they were ran.
Q. Oh, you do, sir. You do recall. You've agreed that they must have been run after the Acura's plate, you've agreed with that. The unit history makes that absolutely clear. The Acura plate was run and then those two other plates were run, correct, sir?
A. Correct.
Q. I'm suggesting, sir, that those plates were run while you were still stationary in the parking lot at 310 Burnhamthorpe West?
A. Again, I don't recall if they were queried on the road or in the parking lot. I don't know.
[25] Both officers testified that they would not “run” vehicle licence plates of vehicles on roadways simply to see if the registered owner had a criminal record and might be worth stopping.
[26] Const. Brabant described his plan as an intention to stop the Acura “[t]o confirm the identity of that passenger” and, if it turned out to be Huynh, to make an arrest. Const. Irwin testified that because they did not know if the passenger was Huynh it was necessary to pull the car over to establish identity – “Once the individual is no longer found to be wanted or not the right individual we’re looking for he’s subsequently released”.
[27] In summary, at the time the officers were following the Acura they did not have the Intelligence Report or a photo of Huynh in their possession. In the minutes of driving preceding the stop of the Acura, no attempt was made to query the name, Thanh Huynh. Asked why not, Const. Brabant stated:
A. Perhaps it's because I couldn't remember his name. Constable Irwin couldn't remember his name and details at that time. Trying to think of the name, trying to remember what it was, so we could do that.
Q. Were routes -- were routes available to you, as a police officer, on May 11th, 2010 before stopping the vehicle? Were there avenues of information available to you to determine whether the person you say you thought resembled Huynh was actually Huynh? Do you have a means to access further information about Huynh?
A. Yeah, I would have had I've had his proper name. I -- I could have pulled him up and seen his picture.
Q. Okay. Did you have any other ways of finding out information about him?
A. No, we didn't have an email [in] our car at that point. Otherwise I could have accessed my email from the road and pulled up the intelligence report.
[28] Only if a wanted party’s correct name is known will a query to the PRPS system regarding a prior-arrested person allow a photo to be transmitted to the cruiser’s computer. No call was made to Consts. Lobo or Adams to determine the wanted party’s correct name. No query was made to determine if the Huynh warrant had been executed. No attempt was made to do a “shoulder check” to attain a better observation of the Acura passenger, a manoeuvre where a police cruiser pulls alongside a target vehicle for closer observation of an occupant.
The May 11, 2010 Detention/Searches/Questioning
[29] Const. Brabant wanted to stop the Acura on a side street. Const. Irwin believed it would be safer to go to a “smaller side road”. The applicant testified that Nguyen stopped the Acura about 300 metres along Central Parkway after being signalled by the police, on Hurontario Street, to stop the vehicle. The applicant was not happy about this as he had been pulled over many times before and was of the view that one was less likely to be searched if stopped on a major street where events were more visible to passersby.
[30] The applicant informed the court that as Nguyen was in the course of complying with the direction to stop, he placed his three cellphones in the glove box.
[31] Recalling that Huynh was flagged on CPIC as armed and dangerous, and a reference in the Intelligence Report regarding Huynh of a “rumour” that he might have a firearm, the officers were concerned about officer safety. No call was made for assistance. Const. Irwin testified that he did not believe Huynh “was carrying a firearm at that point”.
[32] Each police witness characterized the stop of the Acura as a “traffic stop” – Brabant on 11 occasions and Irwin 8 times, although both officers agreed that the driver of the Acura committed no infractions prior to the stop.
[33] The officers booked out with the Acura in their communication system at 3:45 p.m. This was the time of the stop. A minute later, the name Alex Than was queried, without success, by Const. Brabant (#2957) according to the unit history although Const. Irwin testified that he made the query which may have been the case if Brabant was already logged on. In his evidence, Const. Brabant described this exercise as running a name (Alex Than) “from the tops of our heads”.
[34] When the officers exited their cruiser, Const. Brabant approached the driver’s side of the Acura and spoke to Nguyen. Const. Irwin dealt with the applicant at the passenger window. Asked in cross-examination why Const. Brabant did not go to the position where it was believed Huynh was seated, since only he had dealt with him before, the police witnesses stated that since Brabant was driving the cruiser with Irwin as his passenger, each stayed on the side from which he began.
[35] Const. Brabant was asked whether he recognized the passenger as Huynh:
Q. … and looking at who you now know to be Mr. Lam, weren't you able to determine that, in fact, that wasn't Mr. Huynh?
A. At that point in time, I wasn't…I didn't have a picture at the time handy to compare them…and it had been two years prior since my dealings with Mr. Huynh.
[36] In cross-examination, the officer admitted that once Const. Irwin removed the applicant from the Acura he had a look at the person believed to be Huynh. He could not say whether or not the passenger was Huynh. It was only “deep” in the period of investigative detention, after Const. Irwin conducted various checks, that he learned that the passenger was not Huynh.
[37] The witness was questioned about the following exchange at the preliminary inquiry:
Q. But didn't, hadn't you met this Alex Huynh before? Once, once you had a good look at Mr. Lam, couldn't you say that was not him?
A. At that point, when he's pulled out of the vehicle, yeah. But then we have concerns about who his identity is.
[38] When it was suggested to the witness that he admitted in this passage recognizing, near the outset of the stop, that the passenger was not Huynh, he replied that he still “had some doubts” in his mind. The witness claimed that he had no opportunity to clarify the point as he was “answering the questions the way they came out”. On seeing the applicant outside the Acura, “there may have been some more doubt that crept into my mind that it might possibly not be him”. He did not share these thoughts with Irwin:
I - - I wasn’t going to start yelling that’s not him, that’s not him. And…I wasn’t sure if it was him or wasn’t him…
[39] Const. Irwin testified that he has no recall of asking his partner, “Is this Huynh?” Asked why not, he replied that things were happening quickly and he was in the midst of his investigation.
[40] The police witnesses testified that their suspicions were furthered when Nguyen stated to Const. Brabant that his passenger was “Bryan” while the applicant identified himself to Const. Irwin as “Quoc”. The officers testified that they had a quick exchange with one another over the roof of the Acura about this apparent conflict before proceeding further.
[41] Const. Brabant continued to deal with Nguyen:
So I pulled Mr. Nguyen out of the vehicle, or sorry, asked Mr. Nguyen to step out of the vehicle and he complied. I walked him around to the front passenger’s side of the vehicle, of the - - around where the hood is and conducted a pat-down search on him.
[42] The officer informed the court that Nguyen was detained at this point. In his in-chief testimony, Const. Brabant stated that he told Nguyen why he was detained by advising him that he “believe[d] his passenger is a wanted person”. The officer was also concerned that Nguyen may have obstructed police by providing a false name for the passenger.
[43] Const. Brabant did a pat-down search of Nguyen after directing him to place his hands on the hood of the Acura. He described his authority for a personal search in these terms: “For a brief detention, a pat-down search is to be conducted for officer safety reasons”. In this case, he did not know whether the passenger, then thought to possibly be a wanted party, had passed a weapon to the driver at the time of the stop. He had no reason to believe that Nguyen was a wanted person.
[44] Const. Brabant did not advise Nguyen of his s. 10(b) Charter right. He did not think he was obliged to. According to the witness, at some point subsequent to May 11, 2010, he learned through training and experience that rights to counsel were to be provided in these circumstances. He considered this information to be a “fairly significant” legal development.
[45] Insp. Delaney, the current head of the PRPS Learning and Development Branch, which includes the Training Bureau, informed the court that not until August 2013 did the organization formally advise Consts. Brabant and Irwin of the impact of the Suberu decision from the Supreme Court of Canada.
[46] Const. Brabant testified that after he searched the driver’s area of the Acura, he had Nguyen sit back in the driver’s seat. He then took Nguyen’s particulars back to his partner who was at the cruiser in order to confirm that Nguyen was a licenced driver and that he was not wanted.
[47] Const. Brabant still did not know if the passenger was the wanted party. In his words, it was “my partner determined it wasn’t him”.
[48] Const. Irwin had nothing in his notes relating to the time period before the Acura was stopped recording any recognition of the passenger as possibly being a wanted party.
[49] When Const. Irwin was asked why, in the absence of a recall of the wanted party’s name or possession of his photograph, he would not contact the author of the Intelligence Report, the witness gave this evidence:
Q. Yes, but why didn't you call Constable Lobo first and gather more information, such as the name of the fellow so you could pull up a photograph, so you'd have that at the ready, so you'd have access to that knowledge before you approach this car?
A. Right.
Q. So you knew whether you were really approaching a car with a fellow that was armed and dangerous?
A. Right. It's a valid point. And again, I -- it didn't cross my mind.
[50] Const. Irwin recorded in his notes that he was “10-6” [Busy-Standby unless urgent] with a male – “Similar description to another male, Asian, looking for on previous days for Const. Lobo”. As he approached the passenger side of the Acura, he perceived that the passenger appeared nervous.
[51] Const. Irwin testified that the applicant identified himself as Quoc Lam with a date of birth. The applicant testified that he verbally identified himself as Quoc Toan Bryan Lam along with his date of birth (July 22, 1985). The applicant recalls the officer saying that he needed to see some identification. He said that he had no identification with him.
[52] Const. Irwin asked the passenger to exit the vehicle:
A. Immediately upon him exiting the vehicle, I told him, listen, I’m investigating you. I believe you’re someone who could be wanted, and he didn’t seem to have any concerns with that. And, like, as I mentioned, he was completely cooperative.
Q. Did you tell him who you thought he might be?
A. I don’t know if I did or not. I think I may have just said, like, I believe you’re [a] wanted party. I don’t know if I said, if I told him who I thought was wanted.
Q. Okay, and did you give him rights to counsel and caution him?
A. No, I didn’t.
[53] The applicant testified that Const. Brabant told Nguyen at the outset of the stop that they had been stopped because they were two young males driving a vehicle registered to an older lady.
[54] The applicant testified that during the entire period of his detention it was never suggested he was Huynh and he was not told that he was suspected to be someone other than who he claimed to be.
[55] Const. Irwin testified that, in May 2010, he believed that if a detention was brief then rights to counsel “weren’t necessarily required” – the situation was akin to an approved screening device detention. His understanding has since changed. He has no recall when, or precisely how, he learned of a change in the law.
[56] Once the applicant was toward the front of the Acura, there was a personal search. The applicant testified that Const. Irwin instructed him to place his hands on the hood of the Acura. The officer denied giving this direction. The officer then kicked his feet wider apart – he felt some pain but kept his balance. On the applicant’s evidence, Const. Irwin went into each of the pockets of his jeans and his windbreaker. On his evidence, when the officer removed a folded-over, large quantity of paper currency, which was about 1 ¼” thick, from his front left pants’ pocket, Irwin stated: “This is a lot of money”.
[57] In his in-chief testimony, Const. Irwin agreed that, for officer safety, he conducted a quick pat-down search of the passenger looking for weapons:
Q. Okay. Tell me about this pat down search. You, you need to give me the -- I need you to give me the details about the search.
A. Right. So the pat-down search was, basically, on the outside of his coat. I believe he had a puffy coat on that day, as well as his pant pockets. And then when I'm standing there looking at him, I can see a slight bulge in his left front pocket. That causes me some concerns. I don't know what it is, so I put my hand into his pocket, pulled out that article, and it was a wad of cash.
Q. Okay. Why do you have concerns about a bulge in his pocket?
A. Well, I don't know what it is until I cleared that area. And knowing that this party could be armed and dangerous and violent, I believe it was flagged on CPIC, I'm going to clear that area to alleviate myself of that concern, that weapon, if it -- if it is one.
[58] In cross-examination, the constable stated:
Q. When you thrust your hand into the pocket and you felt bills, you felt bills, correct?
A. Correct.
Q. You knew it was paper when you put your hand in there?
A. Yes.
Q. So why did you remove it?
A. Well, at that point in time I felt that he may be arrested, so I'm not going to return his money to someone who I'm about to arrest. I'll return it once his identity's been established, and once it was I counted it and return to him.
Q. Is that what you're trained to do, sir, to seize money like that at that point in time before an individual's arrested?
A. Again, Mr. Lam was cooperative and he was very compliant.
Q. The wad of cash, sir. What did it feel like when you patted it from the outside?
A. It was like, I think a rectangular shape. I think it was folded over.
Q. How did it feel like it was folded, it was folded over, right?
A. Well, it was folded over.
Q. Yes. I'm asking about how did it feel when you patted it down from outside? Did you not pat it down from outside before you went...
A. Yes...
Q. ...into....
A. ...yes, I did.
Q. Well, 'cause that's actually not what you told us. You told us you saw it, a slight bulge in his left, front pocket caused you concern. "I didn't know what it was, so I put my hand into his pocket, pulled out the article and it was a wad of cash"?
A. Yes, but prior to going into pockets -- I try and make it a habit that prior to going into that pocket, I pat search first with an open hand.
Q. So you would have already felt it if you're saying -- what you're saying is correct?
A. Yes.
Q. It didn't feel like a weapon?
A. Well, I don't know what's -- until I determine what the object is and verify that there's no weapons in place of it, I have to determine my -- or ensure my own safety.
Q. Well, it's one of two things, sir. It's either you didn't feel it first. You just went into the pocket based upon an observation that you made standing there looking at him, or you'd already felt it by that point. You agree with me it's one of those two things...
A. Yes.
Q. ...right? Which one is it, had you already felt it?
A. Again, I would have done a pat search first before going into any pockets.
Q. So how did it feel like a weapon?
A. I said I didn't say it felt like a weapon...
A. ...I said there might be something in between. When I pulled it out and I seen the bills, there could be something in between there.
Q. No, you said that you went into it because of the bulge.
I can see a slight bulge in his left, front pocket that caused me some concern. I don't know what it is so I put my hand into his pocket, pulled out that article and it was the wad of cash.
You said it was the bulge, itself, that caused you the concern?
A. Yes.
Q. But you'd -- you'd already felt the bulge?
A. Yes, and then the greater concern was if there was anything in the -- the loose money, like, the -- jammed in between the bills.
Q. Had you felt anything...
A. No.
Q. ...that suggested that?
A. No, but on the ribs where it's...
Q. I understand. Go...
A. ...folded...
Q. ...ahead.
A. ...folded over, that's a hard object in there and you don't know what's in there so I verified that there's nothing in there.
[59] Const. Brabant testified that folded currency is not a weapon. In his view, depending on what a fold of paper money “felt like in the pocket”, he might remove it to see what it was as “there might be something folded within the money” that he was unable to see which could be a concealed weapon.
[60] Const. Irwin testified that Mr. Lam was cooperative throughout and as the applicant stood to the side and toward the front of the Acura, he did a very quick search in and around the passenger seat and underneath the seat but not the glove box:
Q. Now the search that you describe, what was the sense of doing that and not searching the glove box, sir?
A. I was concerned about the immediate vicinity of the vehicle. So I didn't know if prior to exiting the vehicle or before the traffic stop had been conducted, commonly people will put contraband or kind -- some kind of weapons down the sides of the seat, underneath the seat.
Q. I'm sorry, what was your concern for that? What -- what was the concern that you're speaking of? Say I was concerned...
A. Well...
Q. ...what was the concern?
A. ...if there had have been a weapon on the individual, my concern would be that it's easy to relocate it in a, in a very small vicinity of where you're sitting.
Q. Would that not have included the glove box?
A. Yes.
Q. But you didn't search the glove box?
A. No, I -- I don't think I did.
Q. Why not?
A. Again, it was this immediate vicinity that I had an interest in.
I’m not going to put that individual back into a car potentially where there could be a weapon.
[61] Const. Irwin testified that the passenger left three cellphones on the seat when he exited and this “caused some concern that [there] may be other property might have been left there in and around that seat”. Asked to describe the first observations of the cellphones, Const. Irwin stated, “I don’t recall what hand he used” to move the phones to the seat. Under further questioning, the officer stated that he did not know which hand the passenger used and or if he used a hand at all – “[t]hey could have been behind or under his lap, between his legs”. It appeared that the passenger was trying to distance himself from the cellphones. Const. Irwin recorded no note of the cellphones being left on the seat of the Acura.
[62] Const. Irwin’s notes for this point in time record his thinking: “ML [male] in poss of 3 Blk Berry CP – appear very new Common in Drug Dealers / Often switching phones To Avoid Detention / ML Detained In Back of Cruiser Until ID Confirmed”. The cellphones, together with the money seized from the applicant’s pocket, led the officer to believe that what he was seeing was consistent with drug dealing.
[63] According to Const. Irwin, not having grounds to arrest the passenger, he placed him in investigative detention. The detention would last from 3:45 p.m. to about 4:11 p.m., approximately 26 minutes.
[64] The applicant testified that prior to being placed in the rear of the cruiser, Const. Irwin lifted his shirt at the rear to the top of his back. He has a dragon tattoo covering his entire back. The officer remarked that he knew what the tattoo meant – that he was a member of a criminal gang. According to Const. Irwin’s initial evidence in cross-examination, as the applicant leaned into the cruiser to take a seat, he could see, between the beltline and the rise of applicant’s jacket at his back, part of a tattoo. The officer testified that when he asked, “What’s that about?”, the applicant pulled his jacket up revealing “a dragon or something” covering his entire back. Then, pressed in cross-examination, Const. Irwin stated that he could not recall whether he or the applicant pulled the jacket up. By the point of re-examination, the officer stated:
I think when he -- when, like, the dragon tattoo, I think I lifted up his jacket, or he lifted up his jacket, and that would be the only time I'd ever have physical contact with that party.
[65] Cross-examined on an unrelated part of his notebook relating to his interaction with another Asian male, Const. Brabant acknowledged that he recorded that that individual had “Both forearms tattoos”. The witness testified that, “[o]bviously, tattoos are good identifiers of people”. Const. Brabant testified that to his knowledge the passenger was not asked to show his forearms in order to see if there was a tattoo reading “THANH”. The witness agreed this would be a logical thing to do. He must have forgotten the reference to the tattoo in the Intelligence Report probably because Huynh wasn’t “anybody that I was looking for every day or anything like that”.
[66] In his testimony, Const. Irwin acknowledged that he would have seen the tattoo reference (“Thanh”) when he reviewed the Report – “it wasn’t something that stood out immediately” in dealing with the Acura passenger including when he saw the dragon tattoo on his back. He did not think to examine the detainee’s forearms.
[67] The applicant testified that Const. Irwin said, “Come back to the cruiser”, placing him in the rear of the cruiser and shutting the rear door – he was caged. Const. Irwin informed the court that while the applicant was detained, the rear door was left open at all times.
[68] On the applicant’s evidence, as he sat in the cruiser, he saw Const. Brabant searching the Acura. At 3:47 p.m. and 3:49 p.m., respectively, Nguyen’s and Lam’s names were queried through the cruiser’s computer. No photo of the applicant was available as he had not been charged in Peel. At 3:52 p.m., the name Alex Huynh was run with a date of birth (D.O.B.) of June 11, 1988. That query was unsuccessful. Const. Irwin claimed that the D.O.B. came to him as he had a relative with the same birth month and day – he still had no year of birth for Huynh.
[69] The applicant testified that Const. Irwin told him that he needed to be convinced of his identity and, if he could not prove it, he would be taken to the police station. Const. Irwin was questioned in cross-examination as to whether he made it clear to the applicant that he would only regain his freedom if he persuaded him as to his identity. The constable replied:
A. I don’t know if that’s exactly what was said.
Q. Okay. Is there any way that wouldn't have been clear to the both of you, that he's not going anywhere until he convinces you that he's not Huynh, that he's Lam?
A. I remember having a conversation with him about it, trying to establish his ID...
Q. Yes.
A. ...his identity and, again, he assisted me with that so, yeah, there must have been some kind of dialogue back and forth as to if we can reach this end result.
Q. All right, and what happens when we reach the end result?
A. He was released immediately.
Q. No, in the discussion, what was the discussion about what would happen if that end result was reached?
A. Again, I -- I don't recall exactly what was said, the discussion, what was said.
Q. I've asked you many times not to relate -- I'm not expecting you to relate exactly what was said, but whether or not the tenor of what was said was that you will be free to go once he assists you in your investigation?
A. Again, it could have been something to that effect. I -- I don't recall.
[70] The applicant provided Const. Irwin his British Columbia address. He told the officer that he was here visiting his father at the Burnhamthorpe address.
[71] Const. Irwin informed the court that at this point the investigation was going toward the detainee not being Huynh. The applicant recalled that when the officer asked him what was on his record, he said “trafficking cocaine” but provided no dates. To him, it looked as though Irwin was then comparing this information to something he was seeing on his computer screen. According to the applicant, he raised the idea of a telephone call to Det. Kevin Berge of the Edmonton Police, the investigator on that drug charge. From memory, he provided Const. Irwin the officer’s phone number. Const. Irwin dialled the number on his cellphone and then stepped out of the cruiser for the conversation. On his return, the officer stated that Berge had confirmed his identity. Irwin then allowed him a brief conversation with Berge.
[72] Const. Irwin informed the court that Det. Berge explained his familiarity with Lam. The Edmonton officer provided this information: Lam was “a high-volume drug dealer from the west coast”; “very intelligent”; he was “independent” in the sense of not working for anyone; it was “common to have traps in his vehicles”; he owned an Infiniti QX56 SUV; and it was “not unusual to have large quantities of money with him”.
[73] Const. Irwin testified that after the Berge call, he was “fairly satisfied” that the applicant was who he claimed to be.
[74] The applicant testified that at some point he asked Irwin why he was “hassling” him to which the officer replied that he was a gang expert and knew that Lam was a member of a gang. When the applicant said that he did not do that stuff anymore, a self-admitted lie, Irwin laughed and said, “Sure”.
[75] According to the applicant, Const. Irwin wrote his phone number on a piece of paper saying that, if the applicant ever was caught trafficking, to call him and he could get the charge reduced to possession. Const. Irwin agreed in cross-examination that he may have asked the applicant it he had any information he wanted to share and may as well have provided Lam his phone number.
[76] When the applicant was free to go, he was permitted to rejoin Nguyen in the Acura. The applicant testified that Const. Irwin, in front of Nguyen, asked if he could “again” have Lam’s cellphone number. There had been no prior request. The applicant felt that Irwin was trying to leave the impression that he was “a rat”. Const. Irwin initially testified in cross-examination that it was when the applicant was in the cruiser that he asked for his cellphone number which he refused to give. The witness subsequently conceded that he may have asked for the cellphone number at the Acura but not for any malicious purpose.
[77] The applicant testified that he was never asked any questions about his cellphones. When he returned to the Acura, Const. Brabant handed his and Nguyen’s cellphones back saying, “Here are your drug phones gentlemen”. At this point, Nguyen handed over his cellphones while keeping the three or four which he possessed. Const. Brabant had no note, and no recall, of finding a cellphone during the detention.
[78] Following release of the Acura and its occupants, the officers completed a PRP-17 “Street Check Log Summary” (Ex. #27), relating to persons investigated, for entry into a databank of the PRPS. The Summary was also sent to the PRPS 12 Division Guns & Gangs section of the Criminal Investigation Branch. The Summary stated in part:
MALE IN POSSESSION of 3-CPHONES $5, 10, 20 & 50’S CONSISTENT WITH DRUG DEALING. TOTAL AMOUNT $1,175. CHARGED IN 2005 WITH FIREARM AND DRUG OFFENCES WITH EDMONTON POLICE SERVICE.
The September 13, 2010 Observation
[79] Located at 3880 Grandpark Drive in Mississauga is a self-storage complex consisting of a series of buildings with individual units or lockers for rent. The complex is fenced, gated with a code access entry system which unlocks the entry gate and disables the alarm on the individual unit assigned to the user code, and is outfitted with surveillance cameras. The complex is south of the Square One Shopping Centre and a short distance to the south and west of 310 Burnhamthorpe Road.
[80] Immediately to the south of the storage complex is a commercial site with the T & T Supermarket grocery store and other smaller stores and perhaps a restaurant. There is a large parking lot at the north end of the site abutting the south side of the Grandpark storage complex.
[81] In cross-examination, Const. Irwin agreed that in his patrol area, it is not rare to see persons of apparent South Asian descent. The officer was not however prepared to agree that they were a significant feature of the population. Pressed further in cross-examination, the witness agreed that the T & T Supermarket offered foods specifically catered to persons of Asian descent. The officer agreed that, in the T & T Supermarket parking lot, he “would see a lot of Asian people”. Const. Brabant testified that despite regular patrol attendances to this location, there was no typical race encountered there.
[82] At the storage complex, the applicant rented unit #5027. The unit faced south directly toward the T & T Supermarket parking lot. The monthly rent was paid up to the end of September 2010. He told no one he had rented the locker. The unit was closed with a keyed padlock. His motorcycle and related gear was stored there. In addition, within a month of first renting the unit, he placed boxes of marihuana, taped shut with the original beige-coloured tape, inside. He did not want the marihuana at the condo as a “safety precaution against the police”. The marihuana was in vacuum-sealed thick plastic bags further wrapped in closed plastic strips. There was no odour from the drug. He had heard that the police bring dogs by to sniff at locker doors.
[83] The applicant informed the court that he sold marihuana by the box each of which contained 20 lb. At times, he would remove a sample from a box to show a prospective customer who was thinking of buying bulk. Before returning a sample to the locker he would reseal it at the condo before returning it to a box which he taped up with grey duct tape he kept in the locker.
[84] The applicant testified that in September 2010 there were also empty boxes in the unit as well as plastic garbage bags.
[85] On the applicant’s evidence, his attendances at the locker were always short in duration, only a few minutes at a time. He liked to be in and out quickly. As well, he invariably parked his vehicle directly in front of, and parallel to, the locker door. He did so “to block” any view of the unit. When he entered the unit, he put the roll-up door only far enough up to bend and enter so that no one could view the locker interior over the roof-line of the BMW.
[86] In September of 2010, the applicant was driving a black BMW X6. The vehicle was his. He alone operated the vehicle and registered it in his father’s name believing it would be less likely that he would be pulled over by the police.
[87] According to Const. Brabant, at about 5:52 p.m. on September 13, 2010, he and Const. Irwin were investigating persons in two cars parked in the northwest corner of the T & T Supermarket parking lot.
[88] By reference to the names recorded in his notes, he agreed that the subjects may have been young Asian males. The persons present were being investigated as they were “hanging out” in the parking lot, a location where, in his experience, he had found individuals smoking drugs. At the preliminary inquiry, the officer stated that the males were cleaning their cars at that location. Const. Irwin testified that they were investigating “several male parties for a - - a fairly small amount of marihuana”.
[89] The applicant testified that shortly after 5:36 p.m. on September 13, having parked directly in front (“I would always stop in front”), he entered his storage locker to obtain a plastic strip of vacuum-sealed bags of marihuana to show a prospective customer. He left the complex at 5:39 p.m. He met his customer and, at 5:57 p.m., returned to the storage complex to obtain a whole box for the customer.
[90] The applicant informed the court that as he left his unit with a box he observed police officers in the adjacent T & T Supermarket parking lot. He did not know the identity of the officers. He did not hesitate as it would “look suspicious”. He put the box in his vehicle and left the compound at 6:01 p.m.
[91] Const. Brabant informed the court that in the course of dealing with the persons in the T & T Supermarket parking lot he saw a nice new vehicle, a black BMW, parked in the storage complex. At the preliminary inquiry, he estimated that he may have been as far as 70’ distant.
[92] On Const. Brabant’s account, he observed a “younger” Asian male, described as 5’5”-ish in height with brown hair, medium build and a round face, exit the driver’s side of the BMW and enter the storage locker located one-locker to the west of where his vehicle was parked. He could not see the locker interior from the angle where he was standing. At the preliminary inquiry, the witness referred to the male party going from the BMW to “the” storage unit. In cross-examination, Const. Brabant said that he did not intend to refer to unit #5027 but rather “more of a general reference”.
[93] To the officer’s recall, he was dealing with one or two other parties and, in his words, “I wasn’t able to pay attention to what I could see”.
[94] Const. Brabant thought that the male party might be Quoc Lam, being a “younger male, Asian, fitting the similar height, stature and build of Mr. Quoc Lam”. He was not sure, one way or the other, whether it was. He said to Const. Irwin, “Hey that looks like it might be Quoc”. According to Const. Brabant, this was a “chance encounter”.
[95] Const. Irwin testified that as he was investigating one of the drivers of the cars in the T & T Supermarket lot, his partner pointed to the northeast saying, “Hey, that looks like Lam” or “Quoc Lam”. At this point, he was able to “glance over”. He saw the male party enter a storage unit. Const. Irwin testified that he could not tell if it was the applicant (“I didn’t get a good look at him”). Subsequently, he was “pretty sure” it was Lam once the BMW vehicle licence plate registration was checked.
[96] Const. Brabant related to the court that a short time later, perhaps less than a minute, he saw the male party exit from the locker carrying a cardboard box and re-enter the BMW. Const. Irwin recalled that he too saw the male party exit the unit carrying a small box and go to the area of a vehicle parked in front of the adjacent unit.
[97] In his evidence, Const. Brabant agreed that a person leaving a storage unit with a box was in itself innocuous. Const. Irwin agreed that persons access storage lockers for perfectly legitimate reasons for example to store furniture or extra tools.
[98] The officers obtained the licence plate number of the BMW. A registration check came back to Truong Lam.
[99] Const. Irwin testified that he and Brabant jumped in their car and left the T & T Supermarket parking lot with a view to following the BMW.
[100] Const. Brabant wanted to determine if the driver was Lam and if so “to gain further information” on him, for example, why, if he was visiting from B.C. four months earlier, he was still in the area. The officer described his interest in Lam in these terms:
A. We decided we'd like to, you know, gain further information on Mr. Lam.
Q. Why is that?
A. As indicated previously, Constable Irwin had previously dealt with an officer … in Edmonton, who advises that Quoc Lam was involved in high-level drug dealing…
Q. You said yesterday that you wanted to speak to Mr. Lam on the 13th to determine what he was doing in the area because he had said that he lived in British Columbia. Do I have that correctly?
A. Yes, and also -- also further to that, we had been advised previously of his -- that he was a -- a drug dealer.
[101] Const. Brabant testified that he believed that if it was the applicant at the storage unit, there could be drugs stored there. He had “previous knowledge”, though not direct experience, “of drug dealers keeping items, large quantities of drugs and firearms within storage units”. The constable thought confirmation of the driver’s identity could occur by a shoulder check or by stopping the BMW if there was a legal reason to do so.
[102] Const. Irwin felt that it would be “good to keep tabs” on someone involved in the drug trade. By following the applicant, if he was indeed the driver of the BMW, they might learn of “associated buildings”. The officer put his views in this way:
Q. … what do you mean by what he's up to?
A. … based on the prior information we had from the Edmonton officer…it's always good to keep tabs on individuals if he's still involved in that type of activity…
Q. …I want…you to…articulate for me … why that observation is causing you to want to take the steps that you're indicating that you were going to take that evening?
A. …And I said, based on the information we had received from the officer out in Edmonton, we'd like to keep tabs on parties that are involved in the drug trade.
Q. You - - you’re pretty sure that the fellow you’d seen was the same fellow from May 11th, 2010 who you believed was a drug dealer, right?
A. Yes.
[103] In the traffic, the officers were unable to locate the BMW. They then returned to T & T Supermarket parking lot and concluded that the BMW driver had entered locker #5027. Const. Brabant testified:
A. … [we] went back to the storage unit facility…[t]o see the locker that he was at.
Q. And this is at a point when you believed that he’s a major drug dealer and drug dealers store drugs in storage lockers?
A. Yes.
[104] On the officers’ evidence, there was no specific plan formulated to investigate the matter further.
September 14, 2010 – The Coincidence
[105] On September 14, 2010, the applicant entered the self-storage compound to return two boxes of marihuana to his storage locker. They had been out on “consignment” but had not sold. At the Burnhamthorpe condo, he had counted the bags in each box and then taped the boxes shut once satisfied that 20 lb. were in each box.
[106] On the applicant’s evidence, he parked directly in front of his storage locker “as always” to ensure privacy. He positioned the BMW far enough from the roll-up door that he could manoeuvre the boxes from the vehicle trunk into the unit. It was dark. It was 8:43 p.m. He exited his vehicle, opened the locker door only part way, retrieved the boxes from the hatch area of the BMW, and slid the boxes just inside the front right corner of the locker. This took only seconds.
[107] The applicant testified that he then returned to the BMW to retrieve his murse containing keys, phones and cigarettes. He intended to do some quick tidying up in the locker. He next entered the locker sliding the door up half way or less and not above the roof-line of the BMW and then sliding the door down to less than a foot off the ground to allow some light and air into the unit. This took only seconds.
[108] On the evening of September 14, Consts. Brabant and Irwin were on patrol in a marked cruiser. Const. Irwin was driving. A surveillance camera on the south side of the self-storage facility, capturing an angle of view to the south and west, recorded their vehicle entering the T & T Supermarket parking lot at about 8:44 p.m.
[109] Const. Brabant testified that entry to the parking lot was routine patrol to check for liquor or marihuana infractions. He had no reason to believe that the applicant would be in the area. He and his partner had not been following Lam. It was “purely a coincidence” that he and Irwin arrived at this location less than two minutes after the applicant.
[110] The surveillance camera footage shows the very front, but no more, of the BMW parked facing east. Much of the path of the police cruiser through the T & T Supermarket parking lot to the south can be seen in the video footage. The cruiser first entered the lot travelling due north, then turned east, then north, and then west travelling essentially parallel to the fence between the lot and the laneway in front of the southernmost storage units including #5027, before looping toward the south to exit the lot. At no point did the cruiser pause or stop. Const. Brabant described the cruiser as travelling at “[r]egular parking lot speeds”, perhaps 20 k/hr. Const. Irwin was unable to say what speed he was travelling.
[111] Const. Brabant testified that on entering the T & T Supermarket lot he observed a stationary black BMW to the north in the storage unit compound. The witness’ drawing of the route of the cruiser (Ex. #28) is not consistent with the surveillance video footage which depicts the cruiser approaching further from the east within the lot.
[112] Const. Brabant testified that as the cruiser was looping around in the east side of the parking lot, he saw movement in the BMW. A male person was moving around and then exited the car. As the cruiser travelled west and parallel to the storage units, the male party walked toward a locker. In his testimony, Const. Brabant placed the BMW as parked in front of the storage locker immediately to the east of unit #5027. In the witness’ opinion, “[i]t appeared to be the same spot” where he had seen the BMW parked the day before, also described as “approximately the same spot” or “the same place more or less”.
[113] With regard to both Consts. Brabant and Irwin, during the testimony of each, when Crown counsel sought leave to have the respective officers be able to refresh memory as necessary from their notebooks, both constables stated that they had made their notes, “independently” of one another. Const. Brabant later conceded, however, that their notes “were done together at some points…[t]alking about the specifics of the times when certain things may have happened” and some of his notes were not completed until he was in the course of “discussing events, recalling the events” with Irwin. Subsequently, under cross-examination, Const. Irwin acknowledged that the incident had been discussed and they “talked…about the events” as notes were made at the station.
[114] In this application, Const. Brabant was extensively cross-examined relating to entries at pages 160 and 161 of his notebook. Mr. Rusonik’s questions suggested to the witness that, based upon the departure from usual sentence structure and differences in slant and letter appearance from the surrounding print, two entries were added after the original text was completed on these pages: (1) “East of Number 5027”, and (2) “˂Observed from Pass Seat˃”. In his April 3, 2014 testimony, the witness maintained that the slant of the entries looked “pretty much the same” to him as to what else was recorded.
[115] The court took custody of the officer’s original notebook and, on April 4, a voir dire was conducted relating to whether the original notebook should become an exhibit. In cross-examination, this exchange occurred:
Q. All right. Now, sir, I'm going to suggest to you that unlike the other words on that -- on those two pages of notes -- those two circled portions were not written as part of the same sitting, the same flow of note making. That they were made at some point after and that they were inserted to change and modify the account which had originally been written. Do you disagree or agree with that suggestion?
A. I disagree, but commonly when I do my notes, I'll do my notes -- have a read of my notes, if I notice a spot where I think something could be added to add more detail, I'll add it in. It's possible that these entries could have been added in that fashion. However, it would have been during the same note taking time where I'm reviewing my notes and adding specific details in.
Q. Are you saying that that's the case with these two circled portions, that they were only added after you'd already written your notes? You went back and for some reason added the two portions.
A. I -- I'm not too sure exactly at what point I would have added them, but, yeah. The -- the first one at -- the first one, I believe I would have did at the time, as I'm going along. It may look a little off. It's on the crease of the book and my writing might have changed because of that. But the second one, you know, it's written smaller. It's in brackets. That looks like something I would have added in later as I'm reviewing my notes.
That entry, again, it could have been that I reviewed my notes, have a space there. That space was -- that information was relevant to my previous notes in relation to that space, and I could have filled it in. Again, I don't recall exactly when I filled it in. It would have been shortly after I do my notes, and that's when I would have did it.
[116] Asked in his in-chief testimony to describe his observations as the police cruiser moved through the T & T Supermarket parking lot, Const. Brabant gave this evidence:
A. … as we're coming around, just on the east side of the lot, looping around, there's movement within the vehicle. I see a male moving around and getting out of that vehicle, the black BMW I'm referring to, on the driver's -- in the driver's seat.
As I'm just -- as we're just coming around through the lot go to westbound, that male's walking towards a locker. As we're getting pretty much right on the centre, more or less, just passing his car, the door goes up, and it's coming down just right behind him with the string, approximately half way down, pretty much as we're passing by.
Q. All right, so the observations that you're describing are occurring as you're rounding the corner? Is that -- as I understand it?
A. They begin -- I begin to see movement in the car. I can see it's -- appears to be a male, Asian, similar to what I'd seen the day before, possibly Mr. Quoc Lam, possibly another person that looks similar in stature to him. Same -- similar haircut that I'd seen the day before. And as - as we're coming to go westbound, he's out of the car, walking towards the unit, which is one unit down from him, where the car is parked. The door goes up, and is coming down as we're going by.
[117] Const. Brabant described the time frame for his observations:
Q. Okay, and how much time do you think you had to make those observations?
A. Approximately three to four seconds. In terms of the unit being opened and closed, and us driving by at that time.
Q. …Can you tell me what you -- you can observe?
A. I observed that person that got out of the vehicle, in the middle of the storage unit with the door all the way up. I can see some boxes on both sides. I see a motorcycle in there. On the right side of the unit at the front, there's one box with a package leaned up against it.
[118] In cross-examination, Const. Brabant stated that his observation of unit #5027 was obscured by the BMW when the cruiser was to the south and east of the locker. In watching the surveillance video during cross-examination, the witness agreed that the time imprint at that point read 20:07:56. The officer testified that he had no view into the locker until the cruiser was due south of the unit. By tape counter 20:07:58, the cruiser was starting its turn to the south away from the storage units:
Q. Let's see how long you had to, to make that view. We're still at 20:07:56. You're still, your angle's still not right to see in yet, is it?
A. I can't tell from this, this camera angle, but....
Q. Right. Let's see where you make your, the vehicle makes its turn.
A. So I -- I would think I could see in there.
Q. All right. 20:07:57. And when at 20:07:58, the vehicle's already started to turn away. Yes?
A. Yes, sir.
Q. So your vantage point at best, your ability to see in is somewhat shy of two seconds. Is that right?
A. I -- I'm able to still track the unit and such, as in, the passenger in the vehicle, I don't have to, you know, keep concentrated on the, the driving as we're going out of the parking lot.
Q. Well, you certainly didn't have a view until the part of that two seconds where you were due south of the unit. Correct?
A. Yes. Correct.
Q. … I'm just asking for your, what you saw in that point when you're due south in the interior of the locker. I want your -- your -- the point where you can see into the locker.
A. I see, sir.
Q. Everything that you can see inside the locker, please. And you, please be free to use your notes.
A. Yes, sir. I see a -- a person in the middle of the locker. The -- the door on the storage unit had been raised up.
Q. Yes.
A. I see boxes on the sides of the storage unit. I see a motorcycle in the middle of the storage unit. The person is similar to the person I had seen the day before in terms of height, weight, stature, complexion, hair colour and such. And I see on the right side of the unit there's a -- a cardboard box, a larger cardboard box, and on just the corner of that there is a bag, appears to be plastic baggie kind of material with a substance within it...
Q. Yes.
A. ...consistent with my belief to be bulk marijuana.
Q. Anything else?
A. Again....
Q. Could -- if you could check you notes, please?
A. And as we're going, passing by the door comes down to approximately half as the person was person was pulling it down.
Q. No. Anything else in the interior? Have you said that you saw cardboard boxes on both sides of the unit?
A. Yes, sir. I believe I did...
Q. All right.
A. ...say that.
Q. And....
A. A motorcycle, a -- a bag consistent with drug -- marijuana packaging leaning up against a box on the right side of the unit, and a person.
Q. All right, and then as you're going by, you say the door comes down?
A. As we were going by, I believe, yes, sir.
Q. So those are observations that are all made in a portion of one second and the -- the -- the backend of another and the frontend of a -- of a third?
A. Yes, sir.
Q. Is that correct?
A. Yes, sir.
[119] Const. Irwin testified that he too saw a black BMW parked in the storage unit complex when he drove the cruiser into the T & T Supermarket parking lot. The witness identified that vehicle as parked in front of the locker to the east of unit #5027.
[120] In this application, Const. Irwin drew a diagram (Ex. #39) depicting the approximate 13-second path of his cruiser through the T & T Supermarket lot, labelling locations 1 to 4 to assist in describing what he maintained he could see at each location. The witness agreed that the surveillance video imprint for position #1 was 20:07:44 and for #4, 20:07:58. In his in-chief evidence, the witness stated:
A. As I had previously mentioned, we were travelling from west to east within this -- this parking lot here. Subsequently we turned north and go into this small parking lot here, which is directly south of the storage units, immediately turn right. Before executing the turn [1], I observe a black BMW parked south of the storage units, one unit over from 5027 to the east, travel along eastbound, initiated turn, which we would be now heading north [2]. I observe the -- a male, at this point in time, I don't -- can't tell who, a male in the BMW. As we initiate this turn here [3], that male's getting out of the vehicle, and walking behind his vehicle. As I proceed west, that male is walking west as well, attending the storage unit, and attends near the centre of the door, throws it up. The door is opened as we're directly in line with it [4]. The gentleman steps in, uses the rope attached the door to pull it down directly behind his back, and we continue on.
Q. All right. Do you make -- are you able to make any observations inside that locker?
A. Yes, initially when the door is opened all the way to the top, or thereabouts, I can see that there's cardboard boxes along the sides and rear -- both sides and rear wall of the unit. I can also see that there's a motorcycle in the centre of the unit.
Q. Can you tell at that point if the boxes are opened or closed?
A. I didn't really notice at that point.
Q. Okay. Do you make any other observations with respect to that unit?
A. So on the right-hand side, on the right-hand side corner of the unit, that there's box here as I mentioned, and there's a plastic packaging, rectangular shape, on this box, on the right-hand corner.
Q. Okay, and at what number on your diagram are you making that those observations that you're describing right now?
A. Four [4].
[121] In cross-examination, Const. Irwin was questioned further as to what he saw at position #4 directly in line with locker #5027:
Q. You see the door open?
A. Yes.
Q. When it's open, you see boxes along the western wall, the northern wall, the eastern wall. So far am I correct?
A. Yes.
Q. Along -- the boxes along the eastern wall, at the forefront of the boxes along the eastern wall, you see a package of marijuana, leaning -- or what appears to be or consistent with marijuana packaging, leaning against the cardboard box, right by the doorway. Is that correct?
A. Correct.
Q. And again, you see from that position the door close again. Is that right?
A. Yes.
[122] Under further questioning, Const. Irwin stated that his observations of the interior of unit #5027 were made in the time it took the applicant to slide the door up and then “half way” down:
Q. And you said you saw him then reach up and grab a rope and pull that rope which caused the door to come down halfway closed, approximately?
A. Yes, as he's stepping in.
Q. As he's stepping in. All right, and you said that it was in between the door opening and closing that you made the observations that you did in terms of the contents of the locker?
A. Yes.
Q. All right. Well, sir, let me -- let me see if I -- if I understand what you're describing. He goes to the locker -- while you -- no. In fairness, you're saying at that point you see him bent down, or is he already bent down?
A. I don't recall if he was bent down.
Q. Well, let's give you the benefit of -- let's, for purposes of this illustration let's say he's already bent down. He bends down, lifts up the door, steps in, pulls it behind him, like this?
A. Similar to that, yes.
Q. Okay. All right. How long did you have to -- to make that observation? How long do you think it took -- those things that they -- you observed, how long do you think they took? Another way to ask it is how long do you think you had to observe them?
A. It would have been a matter of seconds, where I'm directly by the unit, like, driving by.
Q. You think you have seconds, do you?
A. I would say.
[123] Const. Irwin agreed that an in-court re-enactment of the actions of an individual, timed by a stopwatch replicating the actions of the applicant lifting a rolling door, entering beyond it and then pulling the door part way down behind him, lasted 2.54 seconds. In the constable’s words, “It happened so quickly”.
[124] According to Const. Brabant, once he had seen inside locker #5027, when he said to Irwin, “Did you see that? Looks like more or less drugs”, his partner responded that he had seen it too. Const. Brabant informed the court that he believed the package he had seen contained drugs and that the occupant of the storage unit should be arrested for possession for the purpose of trafficking. Const. Irwin testified that he thought that what he had seen was consistent with bulk drug packaging warranting an arrest of the person in the locker.
Warrantless Entry to Locker/Arrest of Applicant
[125] Const. Brabant considered that there was some urgency to securing entry to the compound to arrest the person in unit #5027. He wanted to get to the locker before its occupant locked it and departed. He and Irwin made no call for assistance. They jumped the compound fence at the front gate of the facility without logging out with their dispatcher when they left their cruiser. Dispatch was not contacted until after Mr. Lam had been taken into custody.
[126] Const. Irwin gave this evidence in cross-examination:
Q. Are you not required to tell the dispatcher you're leaving your vehicle and what you're doing before you do so in case something happens to you and you can't contact them afterwards?
A. Yes, I believe you are.
Q. All right. Are you not also required to tell the dispatcher that you've arrested someone?
A. Yes.
Q. Why didn't you tell the dispatcher before you approached the locker, before you got out of your car, that you were going into this potentially dangerous situation?
A. At the time it happened so quickly I didn't really know what we were getting into.
Q. That's why the procedure is there, to always tell 'cause you never know when you get out of your car for an investigation if you're going to walk up to a car and you're going to get shot and you're going to be lying there bleeding out and not able to call the dispatcher. That's why you're trained to call the dispatcher before you get out, isn't it?
A. Yes.
Q. That's why you do it because you want to go home each night, right?
A. Yes.
Q. But you didn't do it here.
A. No, we didn't.
Q. Because you didn't want the dispatcher to know what you were doing, did you?
A. That’s not true.
[127] The officers proceeded through the compound on foot to the location of locker #5027. By about 8:48 p.m., the officers were at the location of the BMW. Const. Brabant checked the interior of the vehicle from the passenger side to ensure no one was inside. He then returned to the front to be together with Irwin prior to entry to the unit. According to Const. Brabant, he bent down “slightly” and peered under the door. He then told his partner that there was “weed” in there.
[128] Const. Irwin testified that the locker door was half open. He also stated that “a bit of light” came out from beneath the door. He recalls that he and his partner crouched down at the right corner of the unit. He saw marihuana inside the locker.
[129] Const. Irwin raised the roll-up door and the officers entered the locker. On the constables’ evidence, the applicant was standing in the middle of the unit by the front wheel of the motorcycle holding two bags of marihuana. Const. Irwin’s notes made at the scene document no reasonable grounds for entry to the locker.
[130] The applicant testified that as he was beginning to reorganize the boxes along the back wall, the roll-up door flew up. He had been back in the locker less than a minute. He was not holding any marihuana, the boxes with his marihuana were taped shut, and no bags of marihuana were on the floor. The applicant testified that the police said, “Good evening Mr. Lam”.
[131] Const. Irwin issued tactical commands to the applicant. On the officer’s evidence, when directed at gun-point to drop the two bags of marihuana, the applicant complied. The photographic exhibits (Ex. #s 13, 21 B, E) however show only a single bag of marihuana by the front of the motorcycle where the applicant was standing. A second bag is visible some distance away just inside the door to the locker and not leaning against a box. He then ordered Mr. Lam to show his hands and to back toward the officers. Initially each of Const. Brabant and Const. Irwin testified that he arrested the applicant. Const. Irwin subsequently testified that his partner made the arrest. The applicant was handcuffed. The applicant testified that he was not told that he was under arrest.
[132] Const. Brabant informed the court that when Mr. Lam was told that he was under arrest for possession for the purpose of trafficking, he said “Yeah, you don’t need to tell me this. I know my rights”.
[133] On the applicant’s evidence, one of the officers asked him who knew he was there. He had no idea what this meant but answered, “No one”. He then complained that the handcuffs were too tight and were hurting his wrists. He was re-cuffed to the front with one of the officers telling him to be quiet or someone would hear them. The applicant testified that he began to get the feeling that the police were there to steal from him, not to arrest him. The applicant informed the court that in every jurisdiction he has been in, a lot of people “in the trade” are robbed by the police with their stuff or money taken. Thinking that his marihuana was going to be stolen, he blurted out, “Take the marihuana for yourselves and let me go”. He intended this to be a bribe. One of the officers said that he wouldn’t begin to know what to do with so much marihuana.
[134] Const. Brabant’s account was that when he started into giving Mr. Lam the rights to counsel, at about 8:48 p.m., the applicant offered drugs worth $300,000 if he walked away with no charges. At another point, the applicant said, “No, let’s sort this out right now”. Const. Irwin testified that his partner was some time trying to get through the rights to counsel as the applicant kept interrupting, saying that things could be worked out and offering bribes to both of them. Const. Irwin recalled Mr. Lam stating that the deal was off if he was taken in. Const. Brabant’s account is that he told Lam more than once that what he was offering was not wanted. Repeated requests to the applicant for the gate access code were unsuccessful. The applicant testified that he refused to provide the code as he thought that if he gave it up he would not be let go.
[135] Money was discovered in a FedEx box in a bag in the trunk area of the BMW. Const. Irwin testified that he asked Mr. Lam about the money: “He said he didn’t know, or it wasn’t his - - something to that effect”. Const. Brabant too recalled that the applicant said he didn’t know what was in the box. The applicant testified that he offered the money, which was his, to the officers.
[136] Const. Brabant noted that he arrested the applicant for possession of proceeds of crime at 9:10 p.m. In cross-examination, Const. Brabant agreed that he read some of the s. 10(b) Charter questions to the applicant in a cluster before asking if he understood. The officer testified that he did so to complete the rights as he was being interrupted with bribes.
[137] Consts. Brabant and Irwin testified that they touched none of the marihuana or boxes. Brabant variously described the boxes as “flap down but open”, as “more or less open” and also as being open with flaps open. The marihuana was visible.
[138] On the applicant’s evidence, it was the police who opened the flaps of the six boxes to reveal the marihuana contents. As well, it was one of the officers who cut into a bag of marihuana in a strip taken from a box after discussing the lack of discernible odour from the marihuana. When the vacuum-seal was broken, the officer said, “Ah yes, there you go” as the odour emerged.
[139] Consts. Irwin and Brabant did not formally caution the applicant respecting the bribe attempts they described in their testimony. On their account, while comprehending that it wasn’t right, and probably illegal, each was unfamiliar with the charge or the precise elements required to be proved.
[140] In the 9 pages of “simultaneous” notes he maintains he made at the storage locker, Const. Brabant recorded the presence of boxes of marihuana but made no reference to bags of marihuana outside of the boxes nor reference to a bag of marihuana leaning against one box.
[141] Const. Irwin testified in cross-examination that it was shortly after Mr. Lam’s arrest that he communicated with dispatch to provide their location. The officer agreed that he was required to tell the dispatcher when he had someone under arrest. As can be heard from the Ex. #37 audiotape, there was no report of Lam being under arrest.
[142] PRPS Const. Charlebois, on patrol alone in his cruiser, heard a radio dispatch at about 8:51 p.m. on September 14 with Const. Irwin saying “he was out” with a party at the storage units off Grandpark Drive. He decided to drive to that location. Finding the compound gates closed and the Brabant/Irwin cruiser parked there, Const. Charlebois drove south and then north through the T & T Supermarket parking lot stopping by the fence at about 8:57 p.m.
[143] From his cruiser, the officer was able to see an open locker door on the other side of a BMW. The locker seemed to be about the size of a single-car garage. He could only see the upper part of the locker and the upper part of the persons in the locker. There was a light on in the locker.
[144] Leaving his cruiser running, Const. Charlebois walked from the parking lot pavement and across grass inclined straight up to the fence. He stood on the grass “right up against the fence” perhaps 15’ from the doorway of locker #5027. The witness confirmed the accuracy of the drawing of the scene he made at the preliminary inquiry (Ex. #22).
[145] Const. Charlebois observed the black BMW parked directly in front of locker #5027. Parked parallel to the door, the front and the back of the BMW extended past the width of the door. Asked by Crown counsel how he was able to see into the locker, the witness gave this evidence:
Q. … explain to us, if you can, how you are able to make observations that you’ve described inside the storage unit based on the diagram that you have in front of you?
A. I’m standing outside of my cruiser so I can see the open -- the open garage door of the self storage unit, and I don’t stay stationary. I walk around a little bit, pace back and forth a couple of paces.
Q. Okay, so the pacing back and forth, how does that relate to your ability to make observations?
A. It expands my observation, my view, un-obstructs(ph) my view into the self storage spot, self storage area.
Q. Sorry, did you say unobstructs your view?
A. Unobstructs.
Q. Okay, what do you mean by that?
A. Sorry, clears my view to make sure that I can see within the area by walking, so that there’s nothing in front of my viewing area.
Q. Okay, so if I am understanding what you are saying, as the angle of what you are viewing this locker changes by walking around, your view is getting either better or worse. Is that a fair representation of what you said?
A. Yes, it is.
Q. Okay and in terms of the observations that you made, can you just be specific with respect to, if you can, if you can recall, when you see what you say you see in terms of what angle you are looking at? If that’s possible.
A. So when I’m looking north and I take a couple of paces east, my view opens up of the garage area and I can see a motor bike inside there in the garage. I see some cardboard boxes up against the walls, the side walls of the storage unit along with the garbage bags, black garbage bags; open cardboard boxes.
[146] Having moved to a point where he could see in the unit, Const. Charlebois observed Consts. Brabant and Irwin talking and walking around the locker with their flashlights.
[147] In cross-examination, Const. Charlebois was questioned further:
Q. Mr. Charlebois, I am still debating whether or not unobstruct is a word, but the thing that you needed to get around to unobstruct your view was the BMW, is that right?
A. Yes, sir, the BMW was in my line of sight for a portion of the time unless I moved around.
Q. …to see into the bottom of the locker, that only came when you were out of the cruiser?
A. Yes…
Q. Okay, so to get a view of the bottom of the locker, you have to move either to the east or the west of the -- of the obstruction, is that right?
A. Yes, sir, it is.
Q. And you tried to illustrate that by the little stick figure that you’ve drawn on the diagram?
A. Yes, sir, I did.
[148] The BMW was searched incident to arrest according to Const. Brabant. As well, the applicant was seated back in the vehicle when he complained of being cold. There was no warrant for the locker search or for the FedEx box removed from the BMW – that was the decision of Major Drugs who were contacted by Const. Irwin. The box contained two bags each containing six bundles of $20 bills totalling $119,980.
[149] Consts. Irwin and Brabant testified that once the cash was discovered, the applicant was arrested for possession of proceeds of crime and advised of the right to counsel.
[150] In his in-chief testimony, Const. Irwin stated it was “pretty much immediate” on Const. Charlebois’ arrival that he went to speak to him. In viewing surveillance videotape during cross-examination, Const. Irwin agreed that it was at about 9:01 p.m., some four minutes after Charlebois’ arrival, that he left the locker and went to the fence to speak to Charlebois. The delay was said to be due to unsuccessful efforts to get the gate access code from the applicant. According to Const. Irwin’s testimony, he told Charlebois that, “this guy’s trying to bribe us.” Const. Charlebois testified that Irwin said nothing about bribes being offered.
[151] In due course, Const. Charlebois returned to the front gate of the compound where he summoned private security personnel to open the gate.
[152] On securing access to the compound, Const. Charlebois parked his cruiser in the vicinity of locker #5027 at about 9:35 p.m. He was able to see that the driver’s side of the BMW was parallel to the unit doorway and about two metres from it. The officer also brought the Brabant/Irwin cruiser into the compound. The applicant testified that Brabant and Irwin told Charlebois to arrest him for the drugs and the motorcycle. On Const. Charlebois’ evidence, at 9:49 p.m., he arrested Quoc Lam for possession for the purpose of trafficking and for proceeds of crime and advised him regarding his right to counsel. He was tasked by Consts. Brabant and Irwin to make this arrest. The officer transported the applicant from the scene at 9:53 p.m.
[153] Const. Meeker of the Major Drugs team, who attended the scene at 9:56 p.m. accompanied by two of her team members, recalled the BMW parked to the east of locker #5027. She took a number of photos at the scene (Ex. #21). None entered at trial depict the position of the BMW. Five boxes of marijuana were seized which were heavy. They were seized without a warrant as the drugs were described as being in plain view. The total weight of the marihuana was 54,276.55 gm.
[154] A tow truck was requested at 10:39 p.m. to tow the BMW. Under cross-examination, Const. Irwin agreed that he could be seen in the storage facility surveillance videotape, at about 10:57 p.m., walking in front of the BMW in a southeast direction, stopping and looking back as he stood in the laneway, and then continuing southeast to a location near the fence where he took a photo with his cellphone. Const. Charlebois had left with the applicant. The Major Drugs team had taken photos and departed with the marihuana and seized money. Asked where the picture is today, Const. Irwin replied that he no longer had the photo. It was not transferred to a computer or any other medium.
[155] Questioned in cross-examination as to why he took the photo, the officer provided these responses:
Q. What did you do to preserve this one?
A. It’s for my detailed notes later on. Major Drugs had already captured a scene with their photographs. I didn’t see the reason to duplicate efforts.
Q. What did you take that picture to show, sir, walking to the southeast like that?
A. I said already, to capture like the - - the layout of the scene.
Q. ...you come out of -- you come on to view in front of the BMW, which is an issue in itself that we'll return to. You walk in a south-easterly direction. You stop half way along the way, you look back to the northwest. You continue along the way. You reach the curb. You look back to the northwest after walking southeast, and you take a photograph back towards the northwest. Do you not, sir?
A. That's what it appears, yes.
Q. What are you attempting to capture, sir? It's a curious location to be taking a picture of the scene from, from on the east side of the BMW, which you say is already east of the locker, isn't it?
A. Again, I'm capturing the layout of the scene.
Q. Why from that particular position, sir? That particular position captures nothing in terms of your viewing angle, does it?
A. It would give reference to lockers behind the -- the BMW.
Q. Reference to lockers behind the BMW. Why is that important, sir?
A. Because the locker that we're talking about is behind the BMW.
Q. Did you take any other pictures, sir?
A. I took one from in front of the BMW as well.
Q. In front of the BMW? What about a picture that would show your view into the locker that you claimed to have had, from west of the BMW? Down at the fence? Did you take a picture of that? I don't see it.
A. I don't know.
Q. Might it -- was there any particular reason you would have taken at that particular time?
A. Well, I didn't know at that time. I didn't have a chance to preview what Major Drugs had already photographed, meaning the exterior, so I took it upon myself to conduct -- take that picture so I could recollect in my mind and do a detailed description in my notes, the layout of the compound.
[156] Const. Irwin made no notation in his notebook that a photograph was taken on a southeast angle looking back toward locker #5027. The officer claimed to have taken other photos around the same time at the south side of the storage unit. With the surveillance video played in its entirety, the witness conceded that he could not be seen taking any additional photos. Const. Irwin was asked in cross-examination whether he was “trying to recreate grounds” for something for which he had no grounds. Directly asked, “You’re trying to see if you could see into the locker from a position east of the BMW?”, the officer disagreed.
[157] Mr. Rusonik pressed Const. Irwin further as to where in his notebook the content of the photo could be found. The witness responded: “It’s the layout of the compound…that area there including the parking lot…getting a layout of the compound”.
[158] Const. Brabant informed the court that he had no idea whether his partner took a photo at the scene. In cross-examination, he disagreed with the notion that with the BMW in front of locker #5027 he and Irwin came to realize that from a southeast angle it would be impossible to claim the observations they wanted to advance.
[159] In cross-examination, in furtherance of the applicant’s position that the BMW was parked directly in front of locker #5027, Const. Irwin was questioned about his route to take a photo going in front of the BMW, and why at one point he parked his cruiser parallel to the BMW and then moved it forward a few feet. He was unable to explain these events.
ANALYSIS
The May 11, 2010 Detention of the Applicant
Positions of the Parties
The Applicant
[160] Mr. Rusonik submitted that the arrest of Quoc Lam on September 14, 2010, and related searches, can only be understood in constitutional terms by scrutiny of the lawfulness of the police seizure of critical information arising from the vehicle stop and detention of the applicant on May 11, 2010 – that Lam was a high-level drug dealer.
[161] It was submitted that the applicant was arbitrarily detained on May 11 in violation of s. 9 of the Charter. The primary position advanced is that Lam and Nguyen were stopped because they were young Asian males driving an Acura vehicle. This was described as an act of racial profiling. In this regard, counsel relied upon the applicant’s testimony and pointed to a number of aspects of the evidence including evidence supporting the likelihood that the two constables were surfing vehicle licence plate numbers while parked at 310 Burnhamthorpe Road West including the Acura as it sat waiting for Lam’s attendance, the officers’ inability to explain the running of unrelated licence numbers, the timing of when the Acura plate was run vis-à-vis when Const. Irwin noted clearing the Burnhamthorpe Road address, and the improbability of an 11-minute drive to cover less than 1.9 k.
[162] It was submitted that the police stopped the Acura because it was occupied by young Asian males, exactly what Lam says Const. Brabant told Nguyen. There was no consideration that one of the occupants might be the wanted party, Huynh. The officers were able to advance generic and unpersuasive descriptors only in their effort to promote a comparison between Lam and Huynh. The officers were ill-equipped to identify Huynh and only attempted to secure information about that party after the vehicle stop either to document some reason for a groundless stop or because Lam appeared nervous after the Acura was pulled over and the officers believed only then that he might possibly be Huynh.
[163] For a number of reasons, including some of the following, it is said that the police conduct was inconsistent with any honestly held belief that the Acura passenger was Huynh, a wanted person believed to be armed and dangerous – Const. Irwin did not handcuff the passenger, he turned his back on the detainee while searching the passenger area of the vehicle, the rear door of the cruiser was left open while the officer undertook computer checks, Const. Brabant who had dealt with Huynh before made no attempt to deal with the passenger, the failure to look for the “THANH” tattoo, and the lack of discussion between the officers as to whether Brabant could identify the passenger as Huynh.
[164] In the alternative, it was submitted that if the evidence of the officers was accepted, that they thought from the outset that the Acura passenger might possibly be Huynh, no reasonable grounds existed for an investigative detention to determine whether it was Huynh in the passenger seat. The detention, with discriminatory impact, was not based on articulable suspicion. In all the circumstances, there were no objective grounds to suspect that he was the wanted party, in particular given the general comparative descriptors, their inaccuracy, the purported reliance on “resemblance”, the ignorance of the risk of cross-race identification error, and the officers’ lack of access to a reliable memory or document respecting Huynh’s appearance.
[165] In a further argument, Mr. Rusonik submitted that the applicant’s detention certainly became arbitrary once Const. Brabant did not, up close, recognize the Acura passenger as Huynh. At that point, coincidental with Const. Irwin locating substantial cash on the passenger’s person, and possession of three cellphones, the detention was prolonged, not to determine whether the passenger was the wanted party, but rather to investigate a possible drug dealer.
[166] In addition to the asserted violation of s. 9 of the Charter, it was submitted that other Charter breaches followed upon the arbitrary detention including a failure to advise Mr. Lam of his s. 10(b) Charter right, illegal warrantless searches of the applicant including exposure of the skin on his back and a pocket search non-compliant with a valid protective search purpose, and an unlawful warrantless search of the Acura.
[167] Through counsel, it was submitted that by Const. Irwin telling the applicant that he would not be released from the scene unless he established his identity, the officer engaged in questioning which resulted in responses which were involuntary.
The Crown
[168] On behalf of the prosecution, Ms. Campitelli submitted that the evidence of Consts. Brabant and Irwin should be accepted in terms of their purported recognition of the passenger in the Acura as possibly being Huynh, a person for whom there was an outstanding arrest warrant. The constables had reviewed the Intelligence Report relating to Huynh. Having noted the similarities they did, the constables did not move immediately to arrest but rather invoked, reasonably, an investigative detention to confirm the passenger’s identity.
[169] Having seen the Intelligence Report, the officers had been looking for Huynh. The police tried to access a photo of Huynh once the Acura was stopped. Mr. Lam had no identification on his person. Detention of the applicant was necessary to confirm his identity and to dispel the belief that he might be Huynh. Events were happening very quickly. The officers acted in good faith.
[170] The suggestion of racial profiling was rejected by Crown counsel as not established on the evidence. Reasonable suspicion justified the applicant’s detention which lasted no longer than was reasonably necessary. The fact that the passenger turned out not to be Huynh does not detract from the existence of reasonable suspicion for the detention.
[171] Crown counsel submitted that Const. Irwin did not elicit involuntary utterances from the applicant. There was no aggression, coercion or oppression nor any promises of a type to sap the will of the applicant to speak or not. Mr. Lam was entirely cooperative. This was a straightforward identity check and understood to be so by the applicant.
[172] Ms. Campitelli acknowledged the breach of the applicant’s s. 10(b) Charter right.
[173] Given the information the officers had regarding the wanted party being armed, a pat-down search of the applicant was justified. That is what occurred here. Const. Irwin acted reasonably in counting Mr. Lam’s cash and recording the count so that there could be no dispute as to what property was returned to him.
[174] Const. Irwin’s search of the Acura was reasonable as it was limited in scope and protective in purpose to ensure that no weapon was handy to the applicant or to Nguyen.
Fact Finding and Conclusions
Arbitrary Detention
[175] Turning first to the s. 9 Charter argument, whether Quoc Lam was arbitrarily detained on May 11, 2010, the question to be determined is whether in all the circumstances the police had reasonable suspicion for the 26-minute period of investigative detention.
[176] A police officer may briefly detain a person where he or she has reasonable suspicion that that individual is implicated in the criminal activity under investigation: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34, 45.
[177] Reasonable suspicion must be based upon the totality of circumstances. Standing alone, “sincerely held belief is insufficient” to support reasonable suspicion: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 41 (citing R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75).
[178] As stated in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 26, 30:
Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances. In Kang-Brown, Binnie J. provided the following definition of reasonable suspicion, at para. 75:
The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.
A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a "generalized" suspicion because it "would include such a number of presumably innocent persons as to approach a subjectively administered, random basis" for a search: United States v. Gooding, 695 F.2d 78 (4th Cir. 1982), at p. 83. The American jurisprudence supports the need for a sufficiently particularized constellation of factors. See Reid v. Georgia, 448 U.S. 438 (1980), and Terry v. Ohio, 392 U.S. 1 (1968). Indeed, the reasonable suspicion standard is designed to avoid indiscriminate and discriminatory searches.
[179] Reasonable suspicion deals with possibilities rather than probabilities: Chehil, at para. 28. In considering whether reasonable suspicion exists in a particular situation, the police are obliged to take all factors into account: Chehil, at para. 34. A detention continues to be justified only as long as reasonably necessary (MacKenzie, at para. 35) having regard always to the fact that the detention “should be brief in duration”: Mann, at para. 45.
[180] In some cases, part of the information available to the authorities about a suspect may include reference to apparent skin colour or ethnicity: Mann (“a 21-year-old aboriginal male”); R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725 (about ten “black guys”).
[181] However, reasonable suspicion that a person is involved in a particular crime cannot be based upon racial profiling – negative stereotyping engaging the use of race or ethnicity as a factor in deciding to stop, question, search or arrest someone – targeting the individual on the basis of the supposed criminal propensity of the entire group: R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 64 O.R. (3d) 161 (C.A.), at paras. 7, 86; Peart v. Peel Regional Police Services Board, 2006 CanLII 37566 (ON CA), [2006] O.J. No. 4457 (C.A.), at paras. 89-91 (leave to appeal refused, [2007] S.C.C.A. No. 10); see also Longueuil (City of) v. Debellefeuille, 2012 QCCM 235, at paras. 97-105.
[182] “[R]acial profiling occurs and is a day-to-day reality in the lives of those minorities affected by it”: Peart, at para. 94. In R. v. Grant, 2009 SCC 32, at para. 154, Binnie J. observed that: “A growing body of evidence and opinion suggests that visible minorities and marginalized individuals are at particular risk from unjustified “low visibility” police interventions in their lives”. An allegation of racial profiling is “serious - - just as serious as the impact of the racial profiling” on a person detained by the police: Brown, at para. 60.
[183] Racial stereotyping will usually be the result of subtle subconscious beliefs, biases and prejudices: Peel Law Association et al. v. Pieters, 2013 ONCA 396, at paras. 111, 113-14; Brown, at paras. 8, 81; Peart, at paras. 93, 129, 131-32.
[184] Racial profiling is generally proven by inferences drawn from circumstantial evidence: R. v. Kampe, 2012 ONCA 858, at para. 16; Brown, at para. 44; Peart, at para. 95. For example, racial profiling may be found where the circumstances relating to detention correspond to the phenomenon of racial profiling and provide a basis to infer that the officer is lying about why he or she singled out the accused person for attention: Brown, at para. 45.
[185] In R. v. John, 2012 ONSC 4753, at para. 14, the court stated:
It cannot be denied that racial profiling may play a subtle, subconscious role in the multifaceted, instantaneous decision-making that is required of police officers on the street. They must strive to be aware of this possibility so that it can be deliberately factored out of their decisions.
[186] In R. v. Chehil, at paras. 39-40, 43, the court observed:
In my view, it is unhelpful to speak of profiling as generating reasonable suspicion. The term itself suggests an assessment based on stereotyping and discriminatory factors, which have no place in the reasonable suspicion analysis. Rather, the analysis must remain focused on one central question: Is the totality of the circumstances, including the specific characteristics of the suspect, the contextual factors, and the offence suspected, sufficient to reach the threshold of reasonable suspicion?
The application of the reasonable suspicion standard cannot be mechanical and formulaic. It must be sensitive to the particular circumstances of each case. Characteristics identified by a police profile can be considered when evaluating reasonable suspicion; however, profile characteristics are not a substitute for objective facts that raise a reasonable suspicion of criminal activity. Profile characteristics must be approached with caution precisely because they risk undermining a careful individualized assessment of the totality of the circumstances.
Furthermore, the elements considered as part of the reasonable suspicion analysis must respect Charter principles. The factors considered under the reasonable suspicion analysis must relate to the actions of the subject of an investigation, and not his or her immutable characteristics.
[187] A police officer, as with any person acting upon an eyewitness opinion he or she has formed, must be acutely aware of the risks of mistake. This is a genre of opinion which is notoriously renowned for error.
[188] Because of "the dangers inherent in eye-witness testimony" (R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419 (C.A.), at p. 421), eyewitness identification evidence "is inherently unreliable": R. v. Goran, 2008 ONCA 195, [2008] O.J. No. 1069 (C.A.), at para. 19. The "inherent frailties of eye-witness identification evidence are well-established" and can "lead to wrongful convictions, even in cases where multiple witnesses have identified the same accused": R. v. F.A. (2004), 2004 CanLII 10491 (ON CA), 183 C.C.C. (3d) 518 (Ont. C.A.), at para. 39. "[S]pecial caution is called for when assessing eye-witness identification evidence": R. v. Hersi, [2000] O.J. No. 3995 (C.A.), at para. 14; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at para. 40; R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.), at pp. 515-16. Accordingly, "although identification is a matter of fact, appellate courts will subject such findings to closer scrutiny than is generally the case with findings of fact": Goran, at para. 20; R. v. Harvey (2001), 2001 CanLII 24137 (ON CA), 160 C.C.C. (3d) 52 (Ont. C.A.), at para. 19 (affd 2002 SCC 80, [2002] 4 S.C.R. 311).
[189] The reliability of an eyewitness identification is dependent on the eyewitness providing “an explanation of how he [she] identified” a particular person so that the purported identification can “be tested by reference to” that person’s features: R. v. Yigzaw, 2013 ONCA 547, at paras. 34, 36. Vague, general, generic and non-specific descriptions by an eyewitness effectively reduce a case to unsafe resemblance, not identification: Yigzaw, at paras. 34, 51; R. v. Jack, 2013 ONCA 80, at para. 16. Indeed, it has been observed that “in the absence of some other inculpatory evidence, a resemblance is no evidence”: R. v. Boucher (2000), 2000 CanLII 3270 (ON CA), 146 C.C.C. (3d) 52 (Ont. C.A.), at p. 58 (quoted with approval in R. v. Mariani (2007), 2007 ONCA 329, 220 C.C.C. (3d) 74 (Ont. C.A.), at para. 20).
[190] An especial danger in eyewitness identification is the problem associated with cross-racial identification – “the perception that members of one race tend to think that members of another race “all look alike””: R. v. McIntosh (1997), 1997 CanLII 3862 (ON CA), 117 C.C.C. (3d) 385 (Ont. C.A.), at pp. 394-5 (leave to appeal refused, sub nom. McCarthy, 121 C.C.C. (3d) vi).
[191] Although one court has observed that “the greater chance of error on the part of people of one race when identifying those of another than when identifying those of their own is something of which any rational person would be aware” (R. v. Smith, [1994] B.C.J. No. 3090 (C.A.), at para. 8), the risks are significant enough that we regularly instruct jurors about cross-racial identification problems (R. v. Campbell, [2001] O.J. No. 4954 (C.A.), at para. 7; R. v. Richards (2004), 2004 CanLII 39047 (ON CA), 70 O.R. (3d) 737 (C.A.), at para. 32) and expect trial judges to self-instruct on this issue: R. v. Gough, 2013 ONCA 137, at para. 38. We do so without expert evidence because judicial notice can be taken of this phenomenon: McIntosh, at pp. 394-5; R. v. B.M. (1998), 1998 CanLII 13326 (ON CA), 130 C.C.C. (3d) 353 (Ont. C.A.), at para. 105; R. v. Mey, 2011 ONCA 288, at para. 35.
[192] The applicant has the onus to establish that he was arbitrarily detained on May 11, 2010. That burden has been discharged.
[193] I am prepared to approach the beginning of the event on the basis described by Consts. Brabant and Irwin in their testimony – that the Acura vehicle passed by the front of their parked cruiser at 310 Burnhamthorpe Road West and that prior to May 11 they had reviewed the Confidential Intelligence Report relating to Thanh Huynh.
[194] I am unable to resolve on the evidence whether the constables followed the Acura for 4 or 11 minutes or something in between prior to stopping the vehicle.
[195] What is clear is that both officers, on their account, had a minimal opportunity to see the Acura passenger as that vehicle was moving and the officers were otherwise engaged in note-writing. On the evidence, it was at best a fleeting glance.
[196] What Consts. Brabant and Irwin essentially drew from this very brief sighting was that the passenger was a young Asian male, with dark hair and a round face. Although the constables did not expressly refer to the passenger’s ethnicity in detailing their observations at Burnhamthorpe Road, it would appear that this feature was recognized by them given their responses to certain questions. Certainly, subsequent notebook entries describe the applicant as “Asian”. Of course, the label “Asian” is of minimal value as not only are persons of Asian descent common in Peel and throughout the world but also the classification is relatively non-specific as it includes huge sub-groups including Chinese, Vietnamese, Japanese, Thai, Cambodian, etc.
[197] Const. Brabant acknowledged that the features he noted were only “general characteristics”. Pressed in cross-examination, the witness purported to have taken note as well of the passenger’s nose, lips and ears but did not explain any distinguishing characteristics of those facial features.
[198] Const. Irwin also described the passenger as having a “full” round face and that his head hair was “short”, again generic or general identification features.
[199] The evidence of the officers was that although they had reviewed the Report about Huynh who was wanted for breach of probation, neither could recall how close to May 11 he had reviewed the Report. It is not apparent from the evidence that either constable had read the emailed Report more than once or retained the email. There is no evidence as to when the photo of Huynh in the Report was taken. The constables’ recall of the Report contents appeared shaky as evidenced by their inability to recall that the wanted party had his name tattooed on his forearm.
[200] Const. Brabant’s belief was that the Acura passenger “resembled” Huynh, or “looked…somewhat” like him, based on them sharing the general physical characteristics he described. Despite the officer testifying that he was not in the habit of detaining people based on a resemblance, that is what he did in this case.
[201] Const. Irwin also claimed that a person would not be stopped for mere resemblance. Nevertheless, he too spoke of noting a “resemblance” between the passenger and the wanted party – it was possibly Huynh he had seen in the Acura.
[202] Cross-examined about the similarities they noted at 310 Burnhamthorpe Road West between the Acura passenger and their recall of the wanted party, Consts. Brabant and Irwin struggled to explain their conclusion of comparative similarity. Both officers, in testimonial content and presentation, also appeared reluctant to admit the existence of a significant Asian population in Mississauga, Canada’s sixth largest city by population.
[203] Const. Brabant was unconvincing in suggesting that Lam’s face was not more square than round and Huynh’s face not more oval than round. Forced to acknowledge that Huynh’s face was oval, Const. Irwin then described his cheeks and chin as rounded.
[204] Curiously, when both officers were closely questioned in cross-examination as to the actual degree of similarity between the Acura passenger and the wanted party, the notion of a change of appearance was discussed. In answering how hair colour could be a distinguishing feature between individuals of Asian descent, Const. Brabant spoke of the ease of change of hair colour. Const. Irwin agreed that at the preliminary inquiry he raised the topic of a change of appearance. In expounding further on this in the current application, the witness stated that either Lam or Huynh could have changed their appearance at any time. While the precise relevance of this line of thinking remained unclear, it appeared to support the view that scrutiny of discreet physical identification features was less important than scrutiny of identification documentation requested after a vehicle stop.
[205] Neither constable was really in any position to determine independently of the Acura passenger himself, whether he was Huynh. The officers did not have a copy of the Intelligence Report with them, for example in a locked briefcase in the cruiser trunk. There was no email access. Neither could recall the wanted party’s actual name, and apparently had no note of his name, and therefore no photo was available to the cruiser terminal. Const. Brabant had met Huynh on a prior occasion over two years before and, it seems, had such little actual recall of him that it was not a traditional “recognition” situation.
[206] In these circumstances, a fleeting view of the passenger, consideration of only general comparative characteristics between him and the wanted party, no recall of the wanted party’s name, and virtually no independent capacity on the road to determine if the passenger was the wanted party, it is difficult to see not only how the constables could honestly suspect that he was, but also how detention of the Acura passenger could be described as reasonably necessary. Indeed, together with the circumstances already discussed, the following factors suggest that the imposition of detention was thought to be justified whether or not there was any objective basis for it:
(1) the first attempted computer check using the part of the wanted party’s name that was remembered, was only after the Acura was stopped, not during the minutes the vehicle was being followed
(2) no attempt was made to contact the authors of the Intelligence Report during the trip from the condo building to the location of the stop
(3) although the exact meaning of Const. Irwin’s statement, “Once the individual is no longer found to be wanted…he’s subsequently released”, is unclear, it is apparent that no check was made prior to the vehicle stop to determine whether the outstanding warrant had been executed or was otherwise still valid
(4) no “shoulder check” was attempted for a better look at the passenger
(5) the evidence supports the view that the police believed that a “traffic” stop would clear the matter up – apparently an expression referring to a vehicle stop, in the absence of a highway or vehicle infraction, to determine who the occupants of the vehicle are.
[207] In these circumstances, and the apparent absence of self-reflection on the officers’ part of the risks of error inherent in eyewitness identification, including their astounding lack of understanding as to cross-race identification dangers, it is not difficult to understand Mr. Rusonik’s submission regarding racial profiling. Whether the situation here can properly be described or not as, ‘All Asians look alike’, or ‘any Asian will do’, or ‘Even if we’re wrong about him being the wanted party, the Asian passenger was likely up to no good’, there was a recklessness on the part of the police respecting the applicant’s s. 9 Charter right.
[208] Assuming that the constables believed at some level that the passenger might be the wanted party, there was no objective basis for that belief.
[209] There is no dispute that the applicant was detained shortly after the Acura was stopped when he was physically searched. The applicant was arbitrarily detained in the absence of reasonable suspicion.
[210] With the applicant self-identifying as Quoc Lam, but having no documentary identification, and the police having no photo of the wanted party and certainly no clear ability apparently on Brabant’s part to say whether or not he was that party, the applicant’s liberty was unlawfully restrained with the onus put on him to establish who he was. During the course of the unlawful detention, lasting about 26 minutes, with discovery of the over $1,000 cash in the detainee’s pocket and his possession of three cellphones and with a briefing by Det. Berge, the PRPS officers realized that they had come upon a drug trafficker not the party wanted for breach of probation.
Unreasonable Searches
[211] Warrantless searches are an exception in Canadian law and are presumptively unreasonable unless justified by the Crown on a balance of probabilities: R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 21; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 84.
[212] Where, during an investigative detention, a police officer “has reasonable grounds to believe that his or her safety is at risk, the officer may engage in a protective pat-down search” of the detainee – the search “must be grounded in objectively discernible facts” not “irrelevant or discriminatory factors”: Mann, at para. 43. This is a protective, not an evidence-gathering, search based on evidence not simply theory or speculation. Where the detention itself is illegal, the subsequent protective search is as well: R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at paras. 44, 88.
[213] While a pat-down or frisk search is a relatively non-intrusive procedure lasting “only a few seconds” (Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, at p. 185), its impact on personal privacy is nevertheless significant: Aucoin, at paras. 51, 103. Such a search is not to be carried out simply as a matter of routine or policy in every investigative detention but only where reasonably necessary and conducted for legitimate purposes. There is generally a high expectation of privacy in respect of the contents of pockets: Aucoin, at para. 103 per LeBel J. (in dissent in the result). Indeed, depending upon circumstances of a particular detention, protection interests may be satisfied by less intrusive measures than an immediate pat-down search (for example, direction to a detainee to keep his hands “in front of him” (Grant, at para. 6) or to place his hands on the back of the vehicle seat in front of him (R. v. Johnson, 2013 ONCA 177, at paras. 2, 22, 39-41)) or, where a pat-down leads to an officer feeling an object in a pocket which might be a weapon, asking the detainee what it is before deciding whether to enter the pocket: R. v. Byfield (2005), 2005 CanLII 1486 (ON CA), 74 O.R. (3d) 206 (C.A.), at para. 6; Aucoin, at paras. 5-6, 46; United States v. Beltram, U.S.C.A. 7th Cir. (May 15, 2014, No. 12-2990), at pp. 4-5; United States v. Garcia, U.S.C.A. 10th Cir. (May 12, 2014; No. 13-2155), at p. 4.
[214] In R. v. MacDonald, 2014 SCC 3, at paras. 39, 43, 44, 46 and 49, in the context of safety searches to protect the police, the majority decision articulated a standard of reasonable grounds to believe that the subject may be armed and dangerous. At para. 41, the majority describe this as the standard articulated in Mann. See also Aucoin, at para. 44 and fn 3 per Moldaver J. and at paras. 91-2, 97, per LeBel J. dissenting; Clayton, at paras. 20, 30.
[215] It may be appropriate and reasonable in the course of a pat-down search for a police officer to move beyond an open-hand patting of the exterior of clothing to slide, squeeze or manipulate the contents of a pocket in order to more completely inform his or her tactile impression, for example to confirm that the object is a cellphone or a wallet and not a weapon. This furthers some “preliminary evaluation” of an object’s likely relevance before more intrusive action such as looking in a pocket or carried receptacle (see, in a different context, Nolet, at para. 44). Simply reaching into a detainee’s pocket to remove contents, without a frisk search, is unreasonable: United States v. Aquino, 674 F.3d 918, 925-7 (8th Cir. 2012); United States v. Casado, 303 F.3d 440, 442-9 (2d Cir. 2002); Sibron v. New York, 392 U.S. 40, 42 (1968).
[216] As a general rule, where the police stop a vehicle driver and discover nothing in plain view, or on a pat-down search, relating to safety concerns, any ensuing search of the vehicle cannot be justified as incidental to investigative detention: R. v. McCabe, 2008 NLCA 62, at para. 20. That said, where there exist specific and reasonable articulable safety concerns of a continuing nature where a vehicle driver is investigatively detained, for example that he or she may have immediate access to a weapon, a limited, warrantless search of the vehicle may be justified: R. v. Plummer (2011), 2011 ONCA 350, 272 C.C.C. (3d) 172 (Ont. C.A.), at paras. 52-66, 77-9 (driver observed attempting to conceal something, driver wearing bulletproof vest, Officer Safety Alert that driver armed, multiple occupants of vehicle). Of course, a decision to search a vehicle "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": R. v. Reddy (2010), 2010 BCCA 11, 251 C.C.C. (3d) 151 (B.C.C.A.), at para. 40; Mann, at para. 40.
[217] It must be borne in mind that when the police work in a close encounter with someone who may have committed a criminal offence, they must have reasonable resort to measures to minimize, to the greatest extent possible, harm to themselves: Mann, at para. 43; R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, at p. 623.
[218] In the context of a search incident to arrest or a search reasonably undertaken in circumstances of an investigative detention, lifting a detainee’s shirt in order to see whether a weapon is in his waistband may be a lawful protective search: R. v. Williams, 2013 ONCA 772; United States v. Hill, 545 F.2d 1191 (9th Cir. 1976). However, that action is different than moving clothing to expose bare skin for a purpose unrelated to officer safety and is arguably more intrusive than a pat-down search: Aquino, at p. 925.
[219] Having concluded that the detention of Mr. Lam was arbitrary, any ensuing searches relating to the applicant on May 11, 2010 were also unlawful and in violation of his s. 8 Charter right to be secure from unreasonable search and seizure.
[220] In any event, on the facts here, the Crown cannot justify the warrantless search of the applicant’s pants’ pocket leading to the discovery of a large quantity of cash on his person. Leaving to the side the requirement of reasonable and probable grounds for a safety search and the relevance of Const. Irwin’s testimony that he did not believe the person thought to be Huynh had a firearm, the purported frisk search did not, on the whole of the evidence, comply with legal requirements.
[221] Const. Irwin’s in-chief account was that on seeing a bulge in the detainee’s pants’ pocket, he put his hand in the pocket and withdrew the cash. This description accorded with Mr. Lam’s evidence. There were no exceptional circumstances justifying departure from a preliminary pat-down of the pocket. Cross-examined on this omission, the witness advanced a version of having first patted down the pocket because he has “a habit” of using this approach. Further, on this version, the officer acknowledged that the object, a folded-over rectangular shape, did not feel like a weapon. He nevertheless emptied the detainee’s pocket on the speculative or theoretical basis that a weapon could be concealed in the fold. What kind of a weapon was not articulated. Using this approach to frisk searches, a cellphone or a wallet or a bag of peanuts could all be seized from out of a pocket. This may be authorized by a search incident to arrest but fails to comply with the Mann standard.
[222] Const. Irwin also prolonged the unlawful seizure of the money when he did not immediately return it to the detainee. The constable’s reason, that the detainee might be arrested in the next few minutes, did not justify the police conduct.
[223] The warrantless search of the detainee’s pocket breached s. 8 of the Charter on any of Const. Irwin’s versions.
[224] I note that Const. Brabant’s evidence that a pat-down search “is to be conducted” in an investigative detention fails to understand that such a search is not automatic or routine but rather a case-by-case exercise of police power depending on the facts of a particular detention.
[225] During his detention, the applicant’s skin on his back was exposed. If this occurred in accidental circumstances, which was Const. Irwin’s initial account, there would be no search by the state. The applicant maintained that Const. Irwin pulled his shirt up to expose the large tattoo on his back. Const. Irwin’s evidence migrated from accidental exposure, to the detainee pulling up his own shirt, to acceptance that he may have exposed the detainee’s back to view the tattoo. The fact of the tattoo was important enough to the officer that he made a note of it. On the totality of the evidence, I find that the officer did pull up the detainee’s clothing to make observations – another unlawful warrantless search.
[226] There was no evidence of consent here. Nor was the officer’s action related to a protective search. While not an intimate body search, the state action did intrude upon a reasonable expectation of privacy. Whether or not exposure of an individual’s skin would reveal a tattoo, an old wound or scar, a deformity, or evidence of a disease, or simply uncovered skin, the naked skin of a detainee is private – not available for warrantless scrutiny to satisfy the curiosity of the state.
[227] The evidence relating to the warrantless search of the Acura and in turn the cellphones, was conflicting. Because the fact of the arbitrary detention causes any related search executed during the currency of the s. 9 Charter violation to be in breach of s. 8, I find it unnecessary to resolve the disputed evidence on this point including whether the police action would have been unreasonable had the detention otherwise been lawful.
Right to Counsel
[228] In summarizing governing principles relating to the s. 10(b) Charter right to counsel, I noted the following in R. v. Thompson, 2013 ONSC 1527, at paras. 131-4:
In R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 29, the court stated:
The purposes of s. 10(b) serve to underpin and define the rights and obligations triggered by the guarantee. In Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173], Lamer C.J. summarized these rights and obligations in terms of the duties imposed upon state authorities who make an arrest or effect a detention (p. 192). Section 10(b) requires the police
(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel [the 'informational' duty];
(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances) [the 'implementation' duty (part 1)]; and
(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger) [the 'implementation' duty (part 2)].
The second and third duties are not triggered until an arrestee, knowledgeable of his or her right to consult counsel, "indicate[s] a desire to exercise" the right to counsel: Willier, at para. 30; Fuller, 2012 ONCA 565, at paras. 31-2.
The right to silence in section 7 of the Charter and the right to counsel in section 10(b) of the Charter work together "to ensure that a suspect is able to make a choice to speak to the police investigators that is both free and informed": R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25.
As a general rule, the right to counsel must be provided immediately at the outset of a detention: [R. v.] Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460] at paras. 2, 37-42; Grant, at para. 58. The immediacy of compliance with the section 10(b) Charter obligations by the police exists "except in urgent or dangerous circumstances": R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at para. 22; R. v. Montgomery, 2009 BCCA 41, at para. 33; see also R. v. White (2007), 2007 ONCA 318, 85 O.R. (3d) 407 (C.A.), at paras. 45-55.
[229] The Crown rightly conceded the breach of s. 10(b) of the Charter.
[230] In the context of the vehicle stop in this case, there were no urgent or dangerous circumstances, or imminent threats to public or police safety, justifying withholding from the applicant, for the 26-minute duration of the investigative detention, his s. 10(b) Charter rights to counsel. There was no unequivocal waiver of these rights by Lam.
[231] Consts. Brabant and Irwin, over 10 months after the Suberu decision was released by the Supreme Court of Canada, failed to comply with the law. The s. 10(b) Charter violation relates directly to the self-incriminatory dialogue of the detainee with the police.
Voluntariness
[232] An accused person’s statement to a person in authority, whether inculpatory or exculpatory or a combination, is presumptively inadmissible. “Voluntariness is the touchstone of the confessions rule”: R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 (S.C.C.), at para. 69. The prosecution must establish beyond a reasonable doubt that the statement was made voluntarily: R. v. Spencer (2007), 2007 SCC 11, 217 C.C.C. (3d) 353 (S.C.C.), at para. 11. “The onus on the Crown is a heavy one”: R. v. Sabri (2002), 2002 CanLII 44974 (ON CA), 166 C.C.C. (3d) 179 (Ont. C.A.), at para. 14.
[233] Over time, the confession rule has developed, as its underlying rationale, concerns as to the reliability of the accused’s statement in terms of its truthfulness, fairness to the accused including the right to freely choose whether to speak to the authorities or not, and the repute or integrity of the criminal justice system itself. While all these aspects of the voluntariness rule often overlap and fall to be assessed on the facts in any particular case, the concern for reliability remains the “primary reason” for the confessions rule: R. v. Singh (2007), 2007 SCC 48, 225 C.C.C. (3d) 103 (S.C.C.), at paras. 29-30; R. v. Colson (2008), 2008 ONCA 21, 230 C.C.C. (3d) 250 (Ont. C.A.), at para. 34 (leave to appeal refused [2008] S.C.C.A. No. 101); R. v. Deane, (2000), 2000 CanLII 17047 (ON CA), 143 C.C.C. (3d) 84 (Ont. C.A.), at para. 40 (affd 2001 SCC 5, [2001] 1 S.C.R. 279); R. v. McIntosh (1999), 1999 CanLII 1403 (ON CA), 141 C.C.C. (3d) 97 (Ont. C.A.), at para. 20 (leave to appeal refused, [2000] S.C.C.A. No. 81). The admissibility rule effectively maintains a balance between individual and societal interests.
[234] Applying the voluntariness test of admissibility is essentially a question of fact: Oickle, at paras. 23, 71; Singh, at para. 53; McIntosh (1999), at para. 21. In assessing voluntariness, the court must be sensitive to the particularities of the individual suspect including his or her state of mind during police questioning: Oickle, at para. 42; Singh, at para. 36. In effect, the application of the confession rule “will by necessity be contextual”: Oickle, at paras. 47, 71. All relevant circumstances, the “entire context”, must be examined: Spencer, at para. 17; Oickle, at paras. 54, 71, 88.
[235] An in-custody arrestee has the right to choose to remain silent. The common law voluntariness and s. 7 Charter tests for determining whether there was constitutional compliance with an accused’s right to choose whether or not to remain silent are functionally equivalent: Singh, at paras. 25, 37, 39, 49.
[236] The right of an arrestee to choose to speak to a person in authority, and knowledge of that right on his or her part, “is reflected in the usual police caution given to a suspect and the importance attached (even before the advent of the Charter) to the presence of a caution as a factor in determining the voluntariness of a person under arrest or detention”: Singh, at para. 31; see also R. v. E.B. (2011), 2011 ONCA 194, 269 C.C.C. (3d) 227 (Ont. C.A.), at paras. 86-8 (leave to appeal refused [2011] S.C.C.A. No. 455); R. v. Lourenco, 2011 ONCA 782, at para. 7. The “right” has at least two components – the fact of a choice whether or not to say anything to the police and that if the choice is to speak the consequence is that whatever is said may be used as evidence in court if the arrestee is charged: E.B., at para. 91.
[237] Depending on the facts of the specific case, the court may be compelled to determine whether the accused's statement to a person in authority was the result of an inducement on the part of the police - a promise or hope of advantage, or fear of prejudice. An inducement to elicit a confession may be express or implicit. Not every inducement by a police interviewer is necessarily fatal to a finding of voluntariness - police actions become "improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne": Oickle, at para. 57; see also R. v. M.S.M., 2014 ONCA 441, at para. 9. The same paragraph of Oickle continues: "The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise". There must be actions of the police, verbal or otherwise, which operate to induce the making of a statement through fear or hope of advantage. In other words, "In some cases the hope may be self-generated. If so, it is irrelevant": Oickle, at para. 57; R. v. Hobbins (1982), 1982 CanLII 46 (SCC), 66 C.C.C. (2d) 289 (S.C.C.), at p. 292.
[238] As discussed in Spencer, at paras. 13 and 15, while the existence of a quid pro quo may not be "an exclusive factor, or one determinative of voluntariness", it is nevertheless an "important factor in establishing the existence of a threat or promise". Even then, "while a quid pro quo may establish the existence of a threat or promise, it is the strength of the alleged inducement that must be considered in the overall contextual inquiry of voluntariness": Spencer, at para. 19.
[239] On the applicant’s evidence, he understood that the police were interested in learning his identity. He was asked for his identification particulars by Const. Irwin. He had no documentary identification on his person.
[240] On the evidence, Quoc Lam is experienced with the criminal justice system and dealing with the police. I am satisfied that he well understood that the continuation of his detention was linked to providing sufficient evidence of who he was. He proposed a telephone call to someone who could vouch for his identity. I am not prepared to find that Const. Irwin presented an either/or option to Mr. Lam – provide persuasive evidence of identity at the roadside or be taken to a police facility for follow-up on the issue.
[241] On the totality of the evidence, despite the absence of a caution or compliance with s. 10(b) of the Charter, there was no oppression, promise or threat, express or implied, on the part of the police which caused Mr. Lam to speak to Const. Irwin. Apart from the arbitrary detention in which he found himself, I am satisfied beyond a reasonable doubt that there was no improper compulsion upon the detainee such as to overcome his right to choose to speak to the police or not.
The September 14, 2010 Arrest and Searches
Positions of the Parties
The Applicant
[242] Mr. Rusonik submitted that a young man leaving a self-storage unit with a box is circumstantially neutral. The police witnesses accepted as much by recognizing that citizens rent such lockers for legitimate and innocent reasons.
[243] The relevance of the September 13, 2010 sighting of an Asian male at locker #5027 of the Grandpark Drive storage facility, whom the police witnesses considered could be Quoc Lam, was that from this date forward Consts. Brabant and Irwin considered that the locker could be the repository for a high-level drug dealer. Both officers conceded in their testimony that this view was driven exclusively by the information gathered on May 11, 2010.
[244] This derivative perspective played a crucial role in the September 14, 2010 events. It was submitted that the black BMW, parked in the dark outside locker #5027, would have been a meaningless event but for the officers’ investigative interest in a drug dealer associated with that vehicle.
[245] The applicant submitted that the Crown failed, on a balance of probabilities, to establish that the warrantless search of the applicant’s locker and vehicle were reasonable.
[246] It was submitted that coincidence is not the explanation for the presence of Consts. Brabant and Irwin at the storage facility the night of September 14 at the precise time of the applicant’s attendance. It was suggested that the officers were surveilling the applicant.
[247] Not surprisingly, Mr. Rusonik advanced that the precise position of the BMW vis-à-vis locker #5027 is a critical issue. For a variety of reasons, counsel submitted that the testimony of Consts. Brabant, Irwin and Meeker should not be accepted. It is said that logic, aspects of the surveillance video, as well as the evidence of the applicant and Const. Charlebois establish that the BMW was parked immediately in front of the applicant’s locker.
[248] By logic, counsel argued that Mr. Lam, as an experienced drug trafficker who had taken the care to have his large quantity of marihuana vacuum-sealed to avoid detection, would be most unlikely to expose the locker contents to view from the T & T Supermarket parking lot.
[249] In addition to the applicant’s evidence that he deliberately and invariably blocked his locker by parking directly in front of the storage unit, Const. Charlebois unequivocally placed the BMW in the exact location described by Quoc Lam. It was submitted that Const. Charlebois was a credible and persuasive witness who could not be easily dismissed as a witness who had made a mistake.
[250] Counsel relied on some scenes from the surveillance video, of officers at the scene after the applicant was in custody, passing in front of the BMW, as supporting the position of the vehicle directly in front of the locker – if the BMW was parked east of the locker, the officers would walk behind the rear bumper.
[251] It was submitted that Const. Irwin’s obvious purpose in taking a photo from an angle southeast of the BMW was an attempt to capture a sense of what could be seen of the locker interior from that angle as the BMW, parked directly in front of the unit, blocked any straight-in view from the south. The officer could have drawn a diagram at the scene of the locker area – there was no need for a photo to assist with subsequent notes.
[252] Under the threat of his original notebook being made a trial exhibit, Const. Brabant finally admitted adding the reference to the BMW being located east of locker #5027. It is said that this jammed-in addition, not made at the scene but in discussion of events with Irwin, was designed to prop up the officers’ need to move the BMW out of the way of the front of the locker in order to be able to claim that observations were made from the T & T Supermarket parking lot.
[253] It was argued that Const. Meeker’s evidence as to the location of the BMW made little sense. If, indeed, the space in front of locker #5027 was vacant then it is common sense that the Major Drugs’ van would have parked there, not to the west of the locker as the witness described. This is certainly the case given the heavy boxes to be loaded in the van.
[254] It was submitted that Consts. Brabant and Irwin executed a warrantless search of locker #5027 contrary to the applicant’s s. 8 Charter right. Lam had a reasonable expectation of privacy in his locker. Unable to see in the locker on the T & T Supermarket drive-by because the BMW obstructed a view of the locker interior, it is said that the officers decided to enter the locked compound and surprise the applicant in the locker in the speculative hope of finding drugs.
[255] In support of this position, Mr. Rusonik pointed to certain features of the evidence, including the failure of the constables to book out with their dispatcher before entering the gated compound, as indicative of the tentative position the officers were in at that point – without any reasonable grounds about to enter a locked compound and not keen to report their actions in the event that grounds did not materialize. Despite contemporaneous note-taking by the officers, no detailed reasonable grounds were recorded for their search while on scene.
[256] Counsel submitted that even if the court accepted that the BMW was parked east of locker #5027, cross-examination of Consts. Brabant and Irwin, including upon the surveillance video which the witnesses would not have known the defence would acquire, established that the observations they claimed to have made could not have been made in the time available.
[257] It was submitted that the boxes of marihuana were closed as described by the applicant in his evidence. No marihuana was visible. In the alternative, visible plastic containing an item, viewed from a distance, would not raise suspicion except in the context of a pre-existing belief that the locker tenant was a drug dealer.
[258] Mr. Rusonik submitted that the locker door was up, only a foot off the ground as described by the applicant. When Consts. Brabant and Irwin arrived on scene, they were not able to see inside but flung the door up, intruding upon Lam’s reasonable expectation of privacy in the locker and its contents, detained the applicant without arrest, and opened the boxes. Their grounds then existed. The marihuana bags on the floor, seen in the Meeker photos, were placed there by the police. This was staging. Lam would not have leaned a sleeve of marihuana bags upside down against a box. The booking-out call while at the locker made no reference to an arrest although it ought to have. On the evidence which should be accepted, it was Const. Charlebois who effected the arrest some minutes after the applicant was confronted in his locker.
[259] Mr. Rusonik submitted that in the circumstances of the boxes being shut as described by Mr. Lam in his evidence, without any visible bags of marihuana in the unit, the police would only be authorized to freeze the locker but not to search without warrant.
[260] Mr. Rusonik submitted that the court ought to exclude the seized drugs and money and the constables’ testimony relating to bribery by the applicant.
[261] Counsel argued that the unlawful warrantless entry of Lam’s storage locker without any reasonable grounds to arrest or search was a serious intrusion of a reasonable expectation of privacy, made more serious because Consts. Brabant and Irwin misled the court as to the location of the BMW and then staged marihuana on the floor of the locker. The constitutional violation adversely affected the applicant’s privacy rights and the court cannot condone such grave disrespect for the Charter by admitting the evidence.
[262] Alternatively, if the court were to find that the constables made the observations of locker #5027 they claim to have made from the T & T Supermarket parking lot, the same result should follow in terms of excluding the evidence. The officers’ desire to look into the locker, and their degree of concentration as to its contents, is directly linked to the unconstitutionally obtained information on May 11, 2010 that the applicant was a high-volume drug trafficker.
[263] Counsel argued that there is a connection between the May 11, 2010 conduct of Const. Irwin attempting to cultivate the applicant as an informant and the utterances of bribery made on September 14. That contextual connection, and the fact that the utterances were made during an ongoing s. 8 Charter breach, justifies exclusion of the evidence relating to the offering of bribes.
The Crown
[264] Ms. Campitelli acknowledged some “tie in” between the May 11 and September 13, 2010 observations of Consts. Brabant and Irwin. The officers were present in the T & T Supermarket parking lot on September 13 on a totally unrelated investigation. The officers had not been investigating the applicant in the four months after May 11.
[265] It was submitted that it was entirely coincidental that Consts. Brabant and Irwin made a routine patrol of the T & T Supermarket parking lot on September 14, 2010 at a time when the applicant was attending his storage locker.
[266] Counsel argued that the weight of the evidence which the court should accept favoured a finding that the BMW was in fact parked to the east of the locker. Consts. Brabant, Irwin and Meeker provided this evidence. The court should reject the applicant’s allegation of what is, in effect, an allegation of collusion amongst these officers. Lam, who was not a credit-worthy witness, was over-confident or careless exposing the locker as he did. While Const. Charlebois is not dishonest in his evidence on the point, he was a “peripheral” witness and likely mistaken. He was not asked to draw a diagram of the scene until the preliminary inquiry.
[267] The officers made the observations they described when their cruiser passed to the south of the applicant’s locker through the commercial parking lot. This was a lawful perimeter search. While the May 11 experience with Mr. Lam has some relevance to assessing the constables’ conduct on September 14, the observational evidence on the latter date is effectively independent, and sufficiently so, to eliminate any derivative impact from the earlier incident.
[268] Counsel accepted that the surveillance video records only a short time for the officers to make the observations they described. However, the constables were intending to look and take in as much information as possible.
[269] Armed with reasonable grounds to believe that Mr. Lam had marihuana in his locker, the officers jumped the fence near the front gate of the storage facility. The compound property is not Lam’s property. They were understandably in a hurry to get to locker #5027 before the applicant exited the unit and drove off.
[270] While the applicant may have had a reasonable expectation of privacy in the locker, on the police evidence the door was half up on their arrival, and not blocked by the BMW, exposing the contents to view. A locker is not a residence. The officers were standing in the south laneway in the storage compound, in effect a common elements area. When the officers viewed, from outside the unit, what they believed to be marihuana, they were lawfully entitled to enter the locker to arrest the applicant. Seizure of the marihuana was authorized incident to arrest, and by s. 489(2) of the Criminal Code, and the plain view doctrine. Const. Brabant properly advised Mr. Lam of his s. 10(a) and s. 10(b) Charter rights.
[271] Ms. Campitelli submitted that in the event that the court found a breach of s. 8 of the Charter, the seized evidence, the marihuana and the money, ought to be admitted. Applying the relevant criteria, the applicant failed to satisfy the onus of demonstrating why the evidence should be excluded.
[272] It was submitted that there is a relatively low expectation of privacy in a self-storage locker. The degree of privacy intrusion was minimal. The real evidence is reliable and essential to the prosecution of some of the charges in the indictment. The balance supports admission of the evidence.
[273] As to the oral utterances attributed to Mr. Lam constituting bribery, a crime he admits committing, that evidence is not obtained by any unconstitutional conduct on the part of the police – it was the actus reus of a crime which he voluntarily chose to commit.
Fact Finding and Conclusions
Unreasonable Search
[274] Ordinarily, on a totality of circumstances approach, a person who rents a locker has a reasonable expectation of privacy in that place and its contents as characterized by exclusive or near-exclusive access, the presence of locking and security features, the locker’s capacity to contain personal items, etc.: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at paras. 17-22; R. v. Cole (2011), 2011 ONCA 218, 269 C.C.C. (3d) 402 (Ont. C.A.), at para. 42 (varied on a different basis 2012 SCC 53, [2012] 3 S.C.R. 34); R. v. Talbot, [1996] B.C.J. No. 1162 (S.C.), at para. 60. As observed at para. 21 of the Buhay decision, “the purpose for renting a locker is to secure one’s belongings against theft, damage, or even the simple curiosity of others”. Of course, a reasonable expectation of privacy “cannot be made to depend on whether or not …persons [are] engaged in illegal activities”: R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, at pp. 49-50.
[275] Because warrantless searches are presumptively unreasonable, in the absence of consent, the police resort to the use of a search warrant to search a locker for evidence or contraband: see for example, R. v. Monaghan, 2013 MBCA 87, at paras. 12-13; R. v. Crocker, 2009 BCCA 388, at paras. 51-2 (leave to appeal refused [2009] S.C.C.A. No. 466).
[276] A factor to be considered as to whether a person continues to have a reasonable expectation of privacy in a place and its contents is the extent to which “the subject was in public view”: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 32, 46.
[277] The police may engage in a warrantless seizure, not a search, where the plain view rule applies which requires satisfaction of three conditions:
(1) the seizing officer must be lawfully in the place of seizure
(2) the evidentiary nature of the item must be immediately apparent to the officer through the unaided use of his or her senses
(3) the evidence must be discovered inadvertently.
R. v. Atkinson (2012), 2012 ONCA 380, 287 C.C.C. (3d) 544 (Ont. C.A.), at paras. 57, 76; E.B., at paras. 75-7; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, at pp. 241-2; R. v. Jones (2011), 2011 ONCA 632, 278 C.C.C. (3d) 157 (Ont. C.A.), at paras. 56-8; R. v. Stevens (2011), 2011 ONCA 504, 274 C.C.C. (3d) 353 (Ont. C.A.), at para. 43.
[278] As to the first condition, lawful presence at the relevant location, police trespass onto private property to make observations and to secure information violates s. 8 of the Charter – “the police do not have a constitutionally unrestricted right to trespass upon private property” R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3, at para. 22 per Dickson CJ. (in dissent in the result but with Sopinka J. concurring on this point at para. 39).
[279] In some instances, the courts have reviewed the constitutionality of police actions in entering upon property, without consent, to engage in warrantless evidence-gathering, for example, in what might be described as common areas of a building or those immediately adjacent to it. The results of these decisions, in terms of s. 8 Charter compliance, are very much factually driven having regard to the totality of the circumstances including the nature of the property, the character of the common area, the level of security, the degree to which access to others could be restricted to others, precise actions of the police, etc.: see R. v. Thomsen, 2007 ONCA 878, at paras. 30-47; R. v. Laurin (1997), 1997 CanLII 775 (ON CA), 113 C.C.C. (3d) 519 (Ont. C.A.), at paras. 28, 36-46; R. v. Arason (1992), 1992 CanLII 1008 (BC CA), 78 C.C.C. (3d) 1 (B.C.C.A.), at para. 87; R. v. Piasentini, [2000] O.J. No. 3319 (S.C.J.), at paras. 34-44; R. v. White, 2013 ONSC 1823, at paras. 60, 66-78, 80-5; R. v. Verret, 2013 ABQB 658, at paras. 16-8, 24-5; Talbot, at paras. 61, 83.
[280] “A business establishment that is open to the public with an implied invitation to all members of the public to enter has no reasonable expectation of privacy from having a police officer enter the area to which the public is impliedly invited”: R. v. Fitt (1995), 1995 NSCA 47, 96 C.C.C. (3d) 341 (N.S.C.A.), at p. 345 (affd 1996 CanLII 251 (SCC), [1996] 1 S.C.R. 70). While recognizing that s. 8 of the Charter protects persons not places and that the concept of trespass and property rights do not necessarily resolve a s. 8 issue (R. v. Felger (2014), 2014 BCCA 34, 306 C.C.C. (3d) 143 (B.C.C.A.), at para. 47 (appln for leave to appeal filed [2014] S.C.C.A. No. 120)), it may be relevant, in the circumstances of a particular challenge, that any trespass was only on the “private property of the landlord”: Laurin, at para. 32.
Admission/Exclusion of Evidence
[281] There was no dispute as to the general governing principles relating to s. 24(2) of the Charter:
(1) assuming standing exists to personally assert a violation of a constitutional right, whether it can be said in all the circumstances that evidence “was obtained in a manner” that infringed a Charter right requires a threshold determination of a sufficient nexus, whether a causal or contextual connection or unseverable temporal connection, between the breach and the state’s acquisition of the evidence in question: Grant, at para. 131; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at paras. 40, 45-7; R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 44; R. v. Lauriente, 2010 BCCA 72, at paras. 35-54
(2) section 24(2) Charter analysis, in the context of all the circumstances of the case, requires the court to assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to (1) the seriousness of the Charter – infringing state conduct, (2) the impact of the breach on the Charter – protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits
(3) as to the seriousness of the state’s constitutional misconduct:
(a) the gravity of the offending departure from the rule of law may fall within a range of fault from the inadvertent or minor or “understandable mistake” to that which is flagrant, deliberate or in wilful disregard of a Charter-protected right: Grant, at para. 74; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 22-4
(b) the seriousness of a Charter breach may be attenuated by the existence of extenuating or exigent circumstances (Grant, at para. 75) or where the constitutional misconduct of the police was undertaken in good faith – negligent action on the part of the authorities, unreasonable error or ignorance as to scope of authority do not however equate with good faith (Grant, at para. 75; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 99; Buhay, at para. 59) – an example of good faith may be found in the context of the police acting at a time where the operative law was uncertain, in a state of flux, and prior to articulation of a binding judicial direction: Grant, at para. 133; Aucoin, at para. 50; R. v. Beckles, 2012 ONCA 267, at para. 2; Jones, at paras. 83-7; R. v. Kelsy, 2011 ONCA 605, at paras. 65, 70 - the absence of bad faith does not equate to good faith, nor does the absence of good faith equate to bad faith: R. v. Caron (2011), 2011 BCCA 56, 269 C.C.C. (3d) 15 (B.C.C.A.), at para. 38
(c) a Charter violation is more serious where there exists a continuous or systemic disregard of constitutional rights or a cumulative pattern of Charter breaches: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 51; R. v. Chaisson, 2006 SCC 11, [2006] 1 S.C.R. 415, at para 7; Lauriente, at paras. 28-30
(4) the second line of inquiry, examining the extent to which an established Charter breach actually undermined interests protected by the right infringed, focuses on where in a range of effects, ranging from fleeting or technical to the profoundly intrusive, the impact fell upon the accused: Grant, at paras. 76-8; Côté, at para. 47
(5) recognizing “society’s interest in a fair trial that reaches a reliable determination of the accused’s guilt or innocence based on all of the available evidence” (R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 27), the third line of inquiry as to what result would better serve the truth-seeking function of a criminal trial, without overwhelming the entire analysis, considers the impact of exclusion on the prosecution case, the reliability of the obtained evidence, and the seriousness of the charge(s) before the court: Grant, at paras. 79-84; Côté, at paras. 48, 53-6, 89; Cole (SCC), at para. 95
(6) in the end, in deciding whether admission of the unconstitutionally obtained evidence would bring the administration of justice into disrepute, in the sense of the effect of admission on the overall repute of the justice system viewed in the long term, the court must then, though not in any precise mathematical way, balance the assessments under each of the three avenues of inquiry: Grant, at paras. 85-6; Côté, at para. 48.
[282] Some further observations are warranted respecting the seriousness of a Charter breach.
[283] Although the courts have generally refrained from “imposing upon the police a burden of instant interpretation of court decisions” (Kokesch, at pp. 230-1; Cole (SCC), at paras. 110-12), at a reasonable point in time after the court has interpreted a material aspect of the contours of a Charter right, the police will be deemed to have knowledge of the governing authority. Put differently, it may reasonably be said that the police ought to have known. Section 24(2) “should not be used as a matter of course to excuse conduct which has in the past been found to be unlawful”: R. v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, at para. 162.
[284] A somewhat related and contextual point is the role of police training, or lack thereof, in the occurrence of unconstitutional behaviour on the part of individual officers. Evidence of institutional recklessness as to constitutional rights aggravates the severity of the Charter-infringing conduct: see R. v. Clayton and Farmer (2005), 2005 CanLII 16569 (ON CA), 194 C.C.C. (3d) 289 (Ont. C.A.), at paras. 86-7; Clayton (SCC), at paras. 50-53 per Abella J. and para. 129 per Binnie J.
[285] Secondly, on rare occasions, in-court police testimony may exacerbate the seriousness of an identified Charter breach. An example is the observation in Harrison, at para. 26:
I note that the trial judge found the officer's in-court testimony to be misleading. While not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, "the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority" (para. 160).
See also Côté, at paras. 31-2, 51-2, 88. There is, of course, a distinction between simply finding a police witness’ testimony to be unpersuasive as opposed to deliberately misleading: R. v. Madore, 2012 BCCA 160, at paras. 39-43 (leave to appeal refused, [2012] S.C.C.A. No. 384).
[286] As observed in Harrison, at para. 41, it is error to turn the section 24(2) inquiry into a contest between the misdeeds of the police and those of the accused:
The fact that a Charter breach is less heinous than the offence charged does not advance the inquiry mandated by section 24(2). We expect police to adhere to higher standards than alleged criminals.
[287] The state should not benefit from the illegal acts of police officers: R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at p. 251.
[288] In the case of reasonable grounds to obtain a search warrant, tainted in part by information secured by unconstitutional actions of the police, the general approach is to eliminate the information illegally obtained while permitting the state to rely only on lawfully obtained grounds: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 57-8; Grant (1993), at pp. 251-2; R. v. Wiley, 1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263, at p. 278; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 299.
[289] Of course, in the case of warrantless discovery of evidence, the grounds for such a search may equally be tainted by prior unconstitutional conduct on the part of the police. Traditionally, where the prior Charter breach involved a statement of the accused, the discovered real evidence was characterized as “derivative” evidence: Grant (2009), at para. 116. In Côté, at para. 62, the court observed that, “[i]n its broader sense, evidence is “derivative” when it is discovered as a result of other unconstitutionally obtained evidence”, which would also include non-conscriptive evidence obtained in violation of s. 8 of the Charter. This approach was reiterated at para. 66:
The concept of discoverability has been used in relation to derivative evidence to indicate that the police could have obtained the same evidence without unconstitutionally conscripting the accused or that the evidence would have inevitably been discovered with reference to that conscription: Stillman, at para. 107; R. v. Colarusso, 1994 CanLII 134 (SCC), [1994] 1 S.C.R. 20, at p. 77. However, I will use the term “discoverability” to refer to situations where unconstitutionally obtained evidence of any nature could have been obtained by lawful means had the police chosen to adopt them.
[290] Discoverability (independent source; inevitable discovery) remains a relevant, not determinative, factor in the s. 24(2) determination with potential relevance to the first and second branches of the Grant analysis: Grant (2009), at paras. 116-128; Côté, at paras. 67-70; Cole (SCC), at para. 93; Nolet, at para. 54; R. v. MacMillan, 2013 ONCA 109, at paras. 63-76.
[291] In a particular case, where it can be said that unconstitutional actions of the police were causally an integral component in a series of investigative tactics, steps or strategies leading to the obtaining or unearthing of the evidence sought to be admitted by the prosecution, then it is unrealistic to sever the earlier illegal conduct from the total investigatory process which culminated in the discovery of that evidence: Grant (1993), at p. 255; Côté, at paras. 79, 81.
[292] Where, however, following a Charter violation, or indeed during an ongoing constitutional breach, a person commits a crime, such as bribery, he or she is not insulated from liability for such a criminal act: R. v. Ha, 2010 ONCA 433, at paras. 6-9. In Ha, the court stated:
As to the bribery charge, the respondent made a number of statements to the police officers during her arrest for production of marijuana in which she offered them money in an attempt to avoid arrest. The trial judge excluded the statements after finding that their reception would render her trial unfair. As we have already said, we see no basis on which to interfere with the trial judge's ruling that excluded the statements on the basis of the Charter breaches in relation to the production of marijuana charge. However, in our view, this determination did not resolve the question of whether the statements were admissible as the gravamen of the bribery offence.
In R. v. Hanneson (1989), 1989 CanLII 7159 (ON CA), 49 C.C.C. (3d) 467, this court considered whether a Charter breach insulated a detained person against liability for subsequent criminal acts. Justice Zuber, speaking for the court, said the following:
Similarly, despite a breach of s. 10(b), a detained person will attract criminal responsibility for crimes committed by words e.g. threatening death or offering a bribe. Section 10(b) has as its object the provision of counsel to those under investigation for crimes already committed in order that they might be advised with respect to making disclosure, the provision of evidence, etc. regarding of those crimes. Section 10(b) cannot possibly relate to crimes yet to come.
In our view, the rationale in Hanneson applies equally here where there was a s. 9 breach as well as breaches of s. 10 of the Charter. The statements made by the respondent constituted the actus reus of the new offence. They did not flow causally from the Charter breaches.
[293] Of course, by the time Ha was decided, the notions of temporal connection (Strachan, at pp. 1000-1006) and contextual connection (R. v. Ricketts (2000), 2000 CanLII 4859 (ON CA), 144 C.C.C. (3d) 152 (Ont. C.A.), at para. 14) were well-developed notions in the s. 24(2) Charter jurisprudence. However, the Ha decision, in circumstances of the commission of the actus reus of a crime, struck the limiting balance of only determining whether a direct causal connection existed between the constitutional breaches and the new crime as a measure of whether evidence was “obtained by” Charter non-compliance.
[294] Although words of attempted bribery may also amount to the actus reus of an obstruction of justice, before the trier of fact, that crime, unlike the offence of bribery, imports broader scrutiny of police behaviour as the prosecution must establish that the peace officer was in the lawful execution of his duties: R. v. Plummer (2006), 2006 CanLII 38165 (ON CA), 214 C.C.C. (3d) 84 (Ont. C.A.), at paras. 48-9; R. v. Lauda (1999), 1999 CanLII 970 (ON CA), 136 C.C.C. (3d) 358 (Ont. C.A.), at paras. 106-7; R. v. Delong (1989), 1989 CanLII 7164 (ON CA), 47 C.C.C. (3d) 402 (Ont. C.A.), at pp. 411, 417; R. v. Prevost (1988), 1988 CanLII 7058 (ON CA), 42 C.C.C. (3d) 314 (Ont. C.A.), at p. 317 (leave to appeal refused [1988] S.C.C.A. No. 276).
Principles Applied to the Facts
[295] Turning first to the events of September 13. It was daytime. A vehicle was parked at a self-storage locker. A male party left a locker with a box, entered his vehicle and drove away. Consts. Brabant and Irwin accepted that this was in itself entirely innocuous.
[296] When the constables saw the BMW it too had no significance – it was not the Acura stopped on May 11, 2010, nor an Infiniti QX56, the vehicle Det. Berge associated with Quoc Lam.
[297] But the party was a young Asian male whose general physical characteristics could fit Quoc Lam. The constables could not say if it was the applicant given their distance away and pre-occupation with persons in the T & T Supermarket parking lot.
[298] It is apparent, however, that the officers’ act of recording the BMW licence plate for a registration check, and subsequently recording locker #5027 as the storage unit accessed by the party, was because the person at the locker:
(1) might be Quoc Lam
(2) who was a high-volume drug dealer from the west coast
(3) who might be storing drugs in locker #5027
(4) and who was likely driving the BMW registered to Truong Lam.
[299] But for the constables’ investigative detention of the applicant on May 11, 2010, the party at the self-storage unit, the locker and the BMW would have had no significance whatsoever on September 13 or 14, 2010.
[300] Leaving aside for the moment whether the marihuana and cash were lawfully seized by the police on September 14, 2010, with no issue being raised as to the applicant’s standing, whatever authority the state relies upon involved a warrantless search/seizure. The Crown correctly agreed that in these circumstances the prosecution must establish, on a balance of probabilities, that the police actions did not breach s. 8 of the Charter.
[301] Ms. Campitelli agreed that in light of unconstitutional behaviour on May 11, 2010 on the part of the police, such as the court may find, the location of the BMW on September 14, 2010 is significant. It is said that, if the vehicle was parked in the location described by Consts. Brabant, Irwin and Meeker, then a sufficient opportunity was available to Brabant and Irwin on September 14, independent of the influence of information secured on May 11, to acquire reasonable grounds to arrest Lam and for a warrantless seizure of in-plain-view marihuana within the locker and a warrantless search of the BMW incident to a lawful arrest.
[302] Let me first address the evidence of Consts. Brabant and Irwin. Both witnesses placed the location of the BMW on September 13 and 14 to the east of the applicant’s storage locker. The officers were consistent in their testimony on this point. Given how the officers say their observations were made on September 14, there is no room for a possibility of mistaken recollection for that date. The witnesses claim that an experienced drug trafficker left a locker door half open for several minutes, with a light on inside, with marihuana in plain view of anyone in the compound parking lot or the adjacent supermarket parking lot.
[303] While the two witnesses credibly described the location of the BMW vehicle in their in-chief evidence, they fared far less well under cross-examination. Their responses to that questioning caused the court to doubt the veracity of their evidence for a number of reasons including the following.
[304] Firstly, at a general level of credibility assessment, and over and above preparedness to resort to unconstitutional behaviour as exhibited by their May 11, 2010 actions, the officers exhibited concerning reluctance on several issues, in the absence of persistent cross-examination, for example to acknowledge matters such as the exact circumstances of their note-making, the limits of their ability to recognize the wanted party on May 11, the existence of a not insignificant population of persons of Asian descent in Mississauga, and the relevance of the ‘change of appearance’ evidence.
[305] In the context of the officers having earlier breached the applicant’s constitutional rights, and having missed out on following Lam a day earlier when he left locker #5027, the constables were intent on September 14 on seeing whether the applicant had drugs in the storage locker.
[306] Despite in-chief matter-of-fact recital of independent note-taking excepting some particulars of the alleged bribes, it became evidence that when a significant portion of the constables’ notes were made some hours after the relevant events that there was discussion between them. I will return to the note-taking issue presently.
[307] The failure to book out with dispatch prior to entering the storage unit compound cannot be explained by urgency. The officers’ explanation made no sense. PRPS policy requires officers to notify dispatch when they leave their cruiser and for good reason. Here, the officers left their cruiser at night at the gates of the storage unit to head out on foot into an area not fully visible from a public roadway. They could be shot, run down by a fleeing vehicle or otherwise injured while away from their cruiser. Brabant’s last notebook entry of going “10-8” (back in service) was at 8:08 p.m., about forty minutes earlier and some distance away on Central Parkway.
[308] The absence of a credible explanation for the officers’ failure to identity to dispatch their location and objective in leaving their cruiser does, as submitted by the defence, contribute to the inference that the constables had not made the straight-in observations they maintained they made into locker #5027 and in turn did not yet have reasonable grounds to arrest Lam or to engage in a warrantless search of his locker or vehicle. In other words, they were merely suspicious and hoping to surprise the applicant with a prohibited substance and thereby to secure grounds.
[309] The circumstances of Const. Irwin taking a photo with his cellphone were the subject of extensive cross-examination. His explanation made little sense and is rejected. There is no evidence that Consts. Irwin and Brabant were aware on September 14 that a security video was operating on the south side of the self-storage compound. After Major Drugs’ personnel had gone, as well as the applicant in Charlebois’ custody, Consts. Brabant and Irwin were alone on scene awaiting a tow truck to remove the BMW.
[310] Const. Irwin can be seen in the surveillance video passing in front of the BMW not behind it. One might expect that if the BMW was parked to the east of the open locker, the officer would pass out of the locker and behind the vehicle. In any event, the officer walked into the laneway east of the BMW, stopped and looked back to the northwest. On his evidence as to where the vehicle was located, he would not be able to see into the bottom half of the locker. The constable then turned and again walked southeast to the fence, stopped, turned to face northwest and took a single photo with his cellphone.
[311] Const. Irwin made no note of taking this photo. He claimed to have taken other photos about the same time at the south side of the lockers. He was ultimately compelled to admit that the video shows no additional photos being taken. He did not keep the photo or transfer it to another medium. The photo was unavailable for disclosure. There is no evidence of a photo taken looking straight into locker #5027 showing the BMW’s location.
[312] Asked why he took the photo, Const. Irwin maintained that it was to show the layout of the scene to assist in making his notes. Irwin was at the scene for over two hours. He had more than enough time to make notes and to draw the simple diagram which he says he made later at the station. On his evidence, Const. Brabant was apparently able to make 9 pages of “simultaneous” notes at the scene. In his contemporaneous notes made at the scene, Const. Irwin made no entry recording grounds for entering the locker.
[313] Rejection of the officer’s reason for taking this photo, taken together with the circumstances of the taking of the photo including its angle, again lend inferential support to the applicant’s contention that the officer was attempting to document what could be said to have been seen of the locker interior from a southeast angle with the BMW parked directly in front of locker #5027 – a disappointing effort causing the constables to subsequently note up a shift of the BMW to the east to support a straight-in view of the locker and an opportunity for reasonable grounds to arrest.
[314] Only with hesitation, and following the extraordinary steps relating to the witness’ original notebook, did Const. Brabant finally acknowledge the addition to his at-the-station notes of “East of #5027”. On consideration of the officer’s explanation relating to the added entry, and his manner of testifying upon this subject, I am unable to determine with any confidence when this entry was made or to accept the proffered insignificance of the addition.
[315] As well, in his notes at the scene, the officer noted “several large boxes containing marihuana” without any reference to bags of marihuana on the floor of the locker or a bag leaning against one box. These aspects of Const. Brabant’s evidence are troubling.
[316] In addition, review of the video security tape, together with the questioning of the two officers on the subject of their purported observations straight into locker #5027 does not tend to support their account of the location of the BMW. The officers’ cruiser proceeded through the T & T Supermarket parking lot in the dark at about 20 k/hr without slowing or stopping. Any straight-in view of locker #5027 would give 2 to 3 seconds’ opportunity only to see into the unit. For a fraction of that time the view of Const. Irwin, who was driving, would be blocked by Const. Brabant who was seated in the passenger seat of the cruiser.
[317] By reference to Const. Brabant’s testimony and notes (Exhibit #36), in this short time, the officer claimed to see that:
(1) a male party opened the door of locker #5027 fully
(2) the party then pulled the door half way down behind him
(3) the male person was then “in the middle” of the locker
(4) the party might be Quoc Lam because he had the same (1) weight (2) height (3) stature (4) complexion (5) hair colour (6) “and such”
(5) there was a motorcycle in the locker
(6) there were boxes along both sides of the unit
(7) on the right side of the unit at the front there was a rectangular plastic package leaning against a box coming up to the top of the box
(8) the package contained a dark substance consistent with bulk marihuana.
[318] Const. Irwin reported somewhat similar observations as well as having seen boxes along the back wall of the locker.
[319] Given the physical movements attributed to the applicant, and even allowing for police officers intending to see what they could of the male party and the locker on a drive-by, a matter of concentration driven entirely by the information unconstitutionally obtained on May 11, 2010, the available timing, in my view, is a difficult match for the reported events and observations.
[320] In the end, the officers’ testimony about splitting the vehicle and how they would enter a unit depending on where a vehicle was parked was not particularly helpful. However, the position of the two marihuana boxes at the front right corner of the locker, placed there by the applicant on September 14, 2010, would be close to the rear of a vehicle parked east of the locker which lends support to that being the position of the vehicle.
[321] Const. Meeker corroborated Consts. Brabant and Irwin as to the position of the BMW. The witness acknowledged speaking to Consts. Brabant and Irwin in the two weeks prior to testifying in this application. She testified however that she was unaware that the location of the BMW had any particular significance. It was not apparent in watching the witness testify whether her recall of the scene was from memory or a note. Her co-team members from Major Drugs were not called to testify. Const. Meeker appeared to be a hesitant witness. Despite acting as the exhibits officer where her unit took over the case, including taking photos and processing the scene, she apparently took no photos of the location of the BMW in relation to locker #5027. It is not clear why the Major Drugs’ van, into which heavy boxes of marihuana were to be loaded, would be parked west of the locker as opposed to directly in front of the unit if in fact that space was open as she stated. The constable’s evidence did not carry significant persuasive value.
[322] Of some significance is a contradiction between Const. Meeker’s testimony and that of Consts. Brabant and Irwin. While the latter two testified to being able to see, from the supermarket parking lot, a plastic bag consistent with the bulk packaging of marihuana, Const. Meeker testified that the constables reported to her on her arrival that prior to jumping the fence and entering the compound they had observed large, clear “bags of marihuana”. This is not the officers’ evidence in this application. The making of such a statement would be consistent with Consts. Brabant and Irwin working with a story in-progress as to how they could make the observations they came to say they made from the parking lot south of the locker.
[323] Quoc Lam testified that he took precautions respecting the marihuana he stored in locker #5027. This included:
(1) short attendances at the locker going quickly in and out
(2) parking his BMW directly in front of the locker to block public view of the locker interior
(3) having the door up only to the extent necessary to facilitate entry and exit.
[324] In his testimony, the applicant did not depend on memory as to how he may have parked on a particular date – for security reasons he followed an invariable practice as to how he parked. On the totality of the evidence, with the BMW parked parallel to the door of locker #5027 there was sufficient room for the applicant to unload boxes from the rear of his vehicle and to manoeuvre into his locker.
[325] While there are reasons to be cautious about the credibility of the applicant’s account, given his prior record and acknowledged trade, and certain deficiencies in his evidence under cross-examination by Ms. Campitelli including upon the subjects of how the marihuana was packaged and whether it was visible in the locker, his testimony on the issue of the location of the BMW on September 13 and 14 is by no means inherently implausible – and the more so on a consideration of the entire application record.
[326] Beyond supporting himself through the dangerous occupation of drug trafficking, the applicant does not fit the profile of a risk-taker in terms of his own trade. There is merit in the defence submission that logic and common sense would circumstantially support Lam’s position as to where and why he parked the BMW as he described at locker #5027 and why he dealt with the locker door in the manner he described, all inconsistent with leaving the locker door half-way up unblocked by a vehicle. In this regard, a number of factors are relevant including:
(1) Lam had previously been convicted of a narcotics offence and as a drug trafficker on a commercial scale knew that precautions had to be taken against police detection
(2) the applicant is a savvy individual, described as very intelligent by Det. Berge, and demonstrated to be so in giving evidence before this court
(3) the applicant stored his marihuana off-site away from his condo as a precaution against the police
(4) the applicant selected a self-storage locker at a facility with gated access, a code entry system and alarmed individual units
(5) the applicant registered his vehicle in his father’s name to decrease the chances of being pulled over by the police
(6) Lam concealed cash out of view under a storage lid in the hatch of his BMW
(7) the marihuana was vacuum-sealed to avoid detection of the narcotic on account of odour including to defeat narcotic-sniffing dogs the police might use at his locker door
(8) on September 13, 2010, the applicant had seen police in the parking lot of the T & T Supermarket – he well understood the exposure of his locker being on the south side of the southern-most building in the storage complex.
[327] Const. Charlebois corroborated the applicant’s evidence as to the location of the BMW on September 14, 2010 and inferentially, in light of Lam’s evidence, as to where the vehicle was parked a day earlier. There is no issue as to the honesty of the officer’s testimony.
[328] It is certainly true that the witness did not create a diagram depicting his recollection of the scene until the preliminary inquiry. That said, the following observations are warranted:
(1) the officer, unlike some witnesses, was unequivocal in describing his recall of the layout of the scene – no reference to “I think”, “to my recall”, etc.
(2) as to the likelihood of mistake, the constable was describing, not a split-second event, but rather a situation which for him lasted for approximately 14 minutes as he was positioned in the T & T Supermarket at the fence about 15’ from the opening to locker #5027
(3) the constable described in detail what he could see from various positions and, even in the witness box, the officer gestured with his hands to the right and stepped right as he sought to explain how he found it necessary to eliminate the obstruction of the BMW which obscured his straight-in view into the unit
(4) this officer was independent of any prior dealings with Quoc Lam – he had no idea who the applicant was – he was not trying to catch a drug dealer – there was no history of breaching this drug trafficker’s constitutional rights.
[329] Const. Charlebois was an impressive witness.
[330] In addition, review of the security video shows police officers passing in front of the BMW from time to time and the parking of a cruiser in a particular location, which in light of other evidence accepted by the court, is consistent with the BMW parked in front of locker #5027 not to the east.
[331] In this essentially fact-driven, and credibility-based assessment, while some features of the relevant evidence are capable of more than one interpretation, considered cumulatively on the totality of the evidence in this record, on balance, I am satisfied that the BMW was parked in front of locker #5027 when Consts. Brabant and Irwin drove through the T & T Supermarket parking lot. Accordingly, the relevant findings may be summarized as follows:
(1) the constables’ only interest in locker #5027 on September 14, 2010 was because they believed that Lam was a high-volume drug dealer, information unconstitutionally obtained on May 11, and because, possessed of that information, they associated him with that rental unit on September 13 inferring that a drug trafficker might store drugs there
(2) the constables misled the court as to the location of the BMW on September 14 – any relevant observations of the interior of the applicant’s storage locker were only made once the locker door was flung up by the officers without any preliminary peering inside – a warrantless intrusion on Lam’s reasonable expectation of privacy at a point when the constables did not have reasonable grounds to arrest Lam or to search.
[332] I do not accept the applicant’s account that he was simply “tidying” up his locker and that no marihuana was visible once the locker door was rolled up from its resting level about one foot off the ground. This most logically explains the almost immediate discussion between the police and the applicant about the marihuana and the bribes initiated by Mr. Lam.
[333] The conflict in the evidence as to how many boxes were open and how many bags may have been on the floor need not be resolved as the officers’ evidence of seeing what could be marihuana, either from the adjacent parking lot or from a door described as only half-way down, is rejected.
[334] In summary:
(1) the unconstitutional conduct of the police on May 11, 2010 led, on that date, to the unlawful seizure by the PRPS of information that Quoc Lam was a high-volume drug trafficker visiting in Mississauga
(2) that information was causally connected to the police discovery on September 13, 2010 that the applicant, believed to be a high-volume drug dealer, was associated with locker #5027 at the Grandpark Drive self-storage complex and in turn to the belief that he might be storing drugs in the unit
(3) based on this belief, and seeing the vehicle associated with the applicant parked in front of locker #5027 on September 14, 2010, Consts. Brabant and Irwin unlawfully entered the applicant’s locker without a warrant or reasonable grounds for doing so.
[335] Accordingly, the Crown has failed to establish that the warrantless search of the locker was authorized by law. Because the observations within the locker were made in breach of the applicant’s s. 8 Charter right, any warrantless seizures within the unit also violated his right to be secure against unreasonable search and seizure. Given that the observations in the locker formed the basis for Mr. Lam’s arrest, the arrest was unlawful based as it was entirely on constitutionally-tainted grounds. In turn, the search of the BMW, incidental to the unlawful arrest, was itself unlawful and in breach of s. 8.
[336] Turning first to the issue as to whether the marihuana and seized money should be excluded, the starting point is May 11, 2010.
[337] The non-compliance with the Charter was serious. The unconstitutional conduct amounted to a cumulative pattern – there were breaches of ss. 8, 9 and 10(b). The arbitrary detention transpired in the absence of reasonable suspicion. The constables knew or ought to have known this was the case and that a speculative “traffic” stop of any person, including visible minorities, amounts to a wilful disregard of their constitutional protections and diminishes respect for the police and the administration of the criminal law generally. The PRPS had taken no steps to train the constables respecting cross-racial identification issues. There were two s. 8 Charter breaches involving personal searches. While the denial of the right to counsel, over 10 months after Suberu, was deliberate on the part of the officers in the sense of intended, it was without individual knowledge of its wrongness. However, once again, the PRPS as an institution failed to equip its officers with the knowledge required of a reasonably trained police officer by unreasonably delaying formal notification of its officers of this change in the law until an August 2013 Training Bulletin, over four years after the Suberu (SCC) decision – a Bulletin which still does not make it explicitly clear that both the informational and implementational duties of the s. 10(b) Charter right are to be provided immediately upon the imposition of investigation detention.
[338] In terms of the impact of the Charter-infringing actions of the police upon the applicant, he was subjected to multiple breaches of his rights. The arbitrary detention was about 26 minutes in duration, a not inconsequential deprivation of liberty. He was a visible minority Canadian detained by the police in public view. It is of course irrelevant as to whether he was a drug trafficker or a student at the Erindale campus of the University of Toronto in Mississauga. For the majority of the unlawful detention, he was seated in the rear of a police cruiser. Mr. Lam was subjected to two unlawful personal searches violative of personal dignity and integrity. The s. 10(b) breach is of course integrally related to the detainee’s self-incrimination interests. During the currency of the detention in which the applicant was deprived of his rights to counsel, private information passed to the PRPS including some recorded in a PRP-17 card.
[339] Because, in the end, the May 11 Charter breaches relate only indirectly, in the sense of a contextual connection, to the warrantless search of September 14, I now turn to this s. 8 violation.
[340] As a general rule, the reasonable expectation of privacy in a self-storage locker is significantly less than in a dwelling. Nevertheless, padlocked and alarmed storage lockers may well contain private or even valuable items the presence of which the tenant does not wish to share with others including law enforcement.
[341] The warrantless entry of locker #5027 was a flagrant breach of the applicant’s right to be secure against unreasonable search and seizure. The constables entered the locker, not with reasonable grounds to arrest or search, but in an effort to obtain reasonable grounds. The warrant requirement was deliberately circumvented. The gravity of the breach is further exacerbated by two factors: (1) the related serious breaches of the applicant’s Charter rights four months earlier and (2) on the record here, the constables who entered the locker misled the court respecting the issue of reasonable grounds to arrest and in turn to search/seize. In the circumstances, the gravity of the Charter breach overwhelmingly supports exclusion of the evidence.
[342] The effect upon the applicant of the unlawful warrantless entry was exposure of the contents of a place he intended to keep private and in relation to which he took steps to keep from the eyes of the state. This factor tends to support exclusion of the evidence.
[343] Commercial possession of marihuana, in large quantities, despite its character as a soft drug, is a serious crime. In the present case, such real evidence is reliable and essential to the prosecution of the drug charges. The seized currency is the subject matter of the proceeds of crime-related charges. These considerations would favour admission of the drugs and the money to be available for a trial on the merits.
[344] On balancing these assessments, and carefully considering the effect the admission of the evidence on the drug and proceeds of crime charges would have on the overall repute of the justice system viewed in the long term, beyond the confines of this one case, I am satisfied that the evidence must be excluded. Sacrificing a trial on the merits on these charges is a price society must pay to protect the long-term integrity of the criminal justice system.
[345] Ha is a post-Grant judgment which governs the circumstances here. Although the state’s unconstitutional actions may have created the setting in which Mr. Lam uttered the statements constituting bribes, there was no causal connection between the s. 8 breach and his voluntary decision to attempt to corrupt the two constables. There was no compulsion. The statements are the actus reus of the s. 120(b) Criminal Code offence. Taking the matter away from the facts of this case, simply because a motorist may be arbitrarily detained in a traffic stop, the unconstitutional actions of the police do not immunize the driver from criminal liability for the subsequent criminal act of shooting the officer or trying to run her over.
[346] In addition, on the facts here, there existed no meaningful ongoing relationship between the police and the applicant based upon any discussions which transpired on May 11, 2010, reasonably capable of supporting a causal connection of sufficient strength and definition to be able to say that the words of bribery were obtained on September 14, 2010 by prior unconstitutional conduct on the part of the police.
[347] While it may seem that this result allows the state in some measure to reap the benefits of unconstitutional actions of its agents, from a policy point of view, the Ha decision strikes an appropriate balance where a person commits a new crime in dealing with the police.
CONCLUSION
[348] The seized marihuana and money from the BMW are excluded as evidence in the applicant’s trial. The oral testimony of Consts. Brabant and Irwin relating to bribes by the applicant on September 14, 2010, involving both marihuana and money, is admissible on count #3 in the indictment charging an offence contrary to s. 120(b) of the Criminal Code.
HILL J.
DATE: June 11, 2014
COURT FILE NO.: CRIMJ(F) 1676/12
DATE: 20140611
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. QUOC LAM
BEFORE: HILL J.
COUNSEL: J. Campitelli, for the Respondent
R. Rusonik, for the Applicant
REASONS FOR JUDGMENT
HILL J.
DATE: June 11, 2014