ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-10-90000504-0000
DATE: 2014-07-09
B E T W E E N:
HER MAJESTY THE QUEEN
Sabrina Montefiore, for the Crown
Applicant
- and -
JEREMY GAUVIN
Royland Moriah, for the Defendant/Respondent
Defendant/Respondent
HEARD: June 17, 2014,
at Toronto, Ontario
Michael G. Quigley J.
Ruling No. 2
Re: Voluntariness of Utterances and Charter s. 10(b)
[1] On this application, the Crown seeks the court’s ruling that a number of utterances made by the accused immediately prior to being arrested for these offences are admissible at his trial on the basis that they were made voluntarily.
[2] The defendant’s SUV was pulled over for a road stop on October 20, 2006, on the north side of O’Connor Drive just west of Coxwell Avenue. Two uniformed Toronto Police Service officers were in a marked scout car – Officers Saeed and Watt. The background facts are described in greater detail in Ruling No. 1 issued in this matter, but stated summarily, the officers pulled over the defendant’s SUV based on valid Highway Traffic Act (HTA) concerns.
[3] Both officers testified on this voir dire. The officers both indicated and all parties accept that the defendant’s car was pulled over for HTA purposes. Officer Saeed entered the licence plate number into the onboard computer in the scout car. The vehicle was a dark blue SUV. The licence plate inquiry showed that the plate was registered to a female in Barrie, but came back as unassociated with any particular vehicle. The defendant was the only occupant of the vehicle.
[4] P.C. Saeed approached the driver side window of the defendant’s car. P.C. Watt was on the other side, but said that he could overhear some, if not all, of what was being discussed between P.C. Saeed and the defendant on the other side. The driver side window was down. The passenger side window was up.
[5] P.C. Saeed said that the defendant was “frazzled.” He told the officer that he was “having a bad day.” The officer asked for his licence, registration and insurance certificate. This was followed by three utterances which were then followed by a further two.
[6] The first three statements made by the defendant were (i) that he was driving while suspended, (ii) that although he had purchased the vehicle, he had not gotten around to changing the ownership, and (iii) that the plates on the vehicle did not belong to that car.
[7] Then P.C. Saeed made a further inquiry. He asked the defendant if he “had anything illegal in the car.” The defendant responded that he had some hashish in the car. The officer testified that at that point, he asked the defendant to step out of the vehicle. The defendant complied. After the defendant had exited the vehicle, but while he was standing outside and beside the vehicle, the officer asked a further question. He asked the defendant if he had anything else that was illegal in the vehicle. Officer Saeed testified that the defendant told him that he had some ecstasy pills in the back seat.
[8] At that point, P.C. Saeed arrested the defendant for possession of a controlled substance. That was at 8:17 PM. He was handcuffed to the rear and read his rights to counsel at 8:19 PM.
[9] A further search of the vehicle yielded a total of some 1,700 ecstasy pills (MDMA and methamphetamine), a quantity of hashish and ketamine, and a cane that contained a concealed 18” double-bladed, sword-like knife. Those discoveries are what informed the laying of these charges against the defendant.
[10] After hearing the testimony of the officers on the voir dire, counsel for the defence conceded that there were no threats or inducements made by either of the police officers to cause the defendant to make the utterances that he did prior to his arrest. On their evidence, there were no drawn weapons. The officers did not touch the defendant, other than briefly when arresting him and during a subsequent pat-down search, and in the course of guiding him into the back seat of the scout car. There was no aggressive conduct by any of the participants, and the defendant was compliant and co-operative at all times.
[11] As such, there was no evidence that the statements made by the defendant were anything but voluntary. In my view, all of the utterances made by the defendant are voluntary in the legal sense, and would otherwise be admissible under the tests established in R. v. Oickle, 2000 SCC 38, apart from trial fairness or Charter-related considerations. This is particularly so, relative to answers given in response to the HTA-focused questions.
[12] On his initial argument, counsel for the defence did not contest the admissibility of the first three HTA-related utterances made by Mr. Gauvin; however, that left the two further utterances for consideration. Both were made in response to the next two questions asked by P.C. Saeed, i.e., whether there was anything illegal in the vehicle.
[13] However, before my ruling the next morning, defence counsel revisited his position and expanded his argument in further submissions. Referring to the decisions in R. v. Ladouceur, 1990 108 (SCC), R. v. Coutts, 1999 3742 (ON CA), R. v. Milne, 1996 508 (ON CA) and R. v. Orbanski, 2005 SCC 37, all below, and apart from voluntariness within the context of Oickle, he claimed that all of the utterances by the defendant ought to be excluded as compelled, conscriptive evidence, not just the last two utterances admitting to the presence of drugs in the vehicle.
[14] The particular additional statement on which defence counsel focused was that made by the defendant in response to the officer’s HTA-focused question about ownership of the vehicle. He stated that he had recently purchased the vehicle but not yet gotten around to registering it. In addition to his earlier submissions that the two drug-related statements ought to be excluded, defence counsel claimed that that earlier statement should also be ruled inadmissible.
[15] So on this voir dire, all of those utterances made by the defendant were called into question relative to their admissibility. Further, if they were ruled to be admissible, the question was for what purposes could they be used? Both counsel initially argued their positions with focus on the decision of MacDonnell J. in R. v. Findlater, 2010 ONSC 5141, but those initial arguments expanded into other case law as the complexity of these seemingly simple inquiries grew in the context of the facts that were present here. Nevertheless, R. v. Findlater sets the framework within which those arguments proceeded.
[16] In Findlater, the accused applied to exclude evidence at his trial based upon alleged violations of his s. 10(b) and other Charter rights. The police had pulled him over at an impaired driving check stop. As he approached, police noticed, as he rolled down his window, that a cloud of smoke exited from the interior of the vehicle. The police detected the odour of raw and burnt marijuana while speaking with the accused when he was in the driver seat of his vehicle. The police noted that the accused had red, glassy eyes and that he appeared nervous and quiet. He was directed to pull over to the side of the road for further investigation based on the odour of marijuana that had been detected emanating from his vehicle. The police wanted to determine whether he was impaired.
[17] No caution or rights to counsel were given to him at that point. The police asked him a blunt question about where he was hiding “the pot.” He voluntarily produced a small bag from his pocket. At that point, he was arrested for possession for the purposes of trafficking and was informed of his rights. Then an officer searched in the interior of his vehicle for evidence of further drugs, incident to arrest. The officer found a flick knife in the centre console of the car. The glove box was locked. The officer reached for the keys to the vehicle that were being held by the accused in his hand, but the accused told the officer that they required a warrant to continue with their search. Nonetheless, the officer grabbed the keys from the accused’s hand, opened the glove box, and found a loaded .357 Magnum revolver.
[18] At that point, the accused was arrested for possession of a prohibited weapon. He made an inculpatory statement with respect to the gun. On the voir dire conducted prior to his trial, he sought to exclude the knife, the gun and the utterances made to the police pertaining to the gun, based on the police failure to caution him after he was pulled over for further investigation, and on the basis that the glove box search exceeded the permissible scope of a search conducted incident to arrest.
[19] MacDonnell J. dismissed the application. When the accused was directed to pull over to the side of the road, at that moment in time, the police had observed both smoke and a strong odour of marijuana emanating from his vehicle. Those observations provided ample grounds for the police to conduct an investigative detention of the accused. Thus, his detention at that point was not arbitrary. The investigation also remained a highway safety matter, given that the pullover had arisen out of the accused being stopped as part of a R.I.D.E. program road stop.
[20] The question regarding the location of the marijuana was related to a central goal of the R.I.D.E. check stop program. Asking that question did not convert the detention from a HTA-focused inquiry into a drug investigation. MacDonnell J. found that the matter became a drug investigation only once the accused produced the marijuana. He found that using the marijuana to incriminate the accused in those precise circumstances would not render the accused’s trial unfair. The marijuana was not subject to exclusion.
[21] Moreover, MacDonnell J. concluded that it was reasonable for the police to look into the glove box of the defendant’s vehicle to determine whether there were more drugs present there. The fact that the glove box was locked did not vitiate the reasonable basis that the police had for searching it. The small degree of force that was necessary to remove the key from the accused’s hand did not render the search unreasonable.
[22] I referenced that decision in Ruling No. 1 that I gave on the first day of trial. In that ruling the defence was denied an abridgement of the time for notice relative to the new Charter application that it filed without adequate notice to the Crown. In that decision, I determined that the defendant’s new application to exclude the illegal drug evidence should not be heard, for the reasons given there.
[23] However, the issue of the defendant’s s. 10(b) rights to be cautioned and to retain and instruct counsel has been alive in this case for over three years, as I observed to both counsel on the hearing and argument of this voir dire. The fact that there was a section 10(b) Charter-related component to the defendant’s response to the Crown’s voluntariness motion about the utterances allegedly made by the accused has been on the table through two judicial pre-trials before Himel J. and then Kelly J. in 2012 and 2013, respectively.
[24] The question to be determined here is whether the last two, and now also the immediately preceding statement relative to ownership of the vehicle, ought to be admitted as evidence on the defendant’s trial.
[25] The Crown says that she has proven beyond a reasonable doubt that all of the utterances are voluntary. The officers testified that the defendant voluntarily responded to the questions of whether anything illegal was to be found in his vehicle. The Crown claims:
(i) that the first statement relative to ownership arises out of a valid HTA auto stop;
(ii) that the second statement is an admission or declaration against interest arising from a question that was still connected to the HTA inquiries and that did not breach the defendant’s rights, in which he was asked if there was anything illegal in the vehicle; and
(iii) that the third statement must be regarded as integrated with and a part of the continuing series of events that commences with the asking of the second question relative to whether there were any illegal items to be found in the defendant’s vehicle.
[26] The Crown submitted that it all happened at the same time, and that the second question is not separated from the first. As such, she says that even though the defendant responded that there were illegal drugs in the vehicle in his response to the first question about the presence of illegal items, no obligation arose on P.C. Saeed at that particular time to caution Mr. Gauvin and read him his rights to counsel.
[27] This is argued even though P.C. Saeed could have arrested the defendant at that time for a drug offence even if he was not arrested until some minutes later, and recognizing, as I do, that a non-HTA issue of criminality was now engaged, the Crown makes this statement even though the answer given by Mr. Gauvin that there was hashish in the vehicle was plainly the trigger, which on P.C. Saeed’s evidence caused him to tell the defendant to step out of the vehicle. Only then, after he was outside, a break of probably 30 seconds or so, did P.C. Saeed ask the second question about whether there was anything further in the vehicle that was illegal.
[28] Counsel for the defence argued that Mr. Gauvin was in a situation of compulsion. He claims that the defendant had no choice but to respond to the questions he was asked and that incriminating conscriptive evidence should not be used against him on his trial. He claims this is true, not only for the drug-related statements, but also the HTA-focused response relative to the alleged failure to register the newly acquired vehicle. That claim is made, since ownership is a factual element that may go to the existence of knowledge and control of the defendant over the contents of the vehicle. He relies upon the decision in Ladouceur, and the other related cases noted above. At para. 60 of that decision, Sopinka J. comments on this risk of compulsion arising out of a HTA-based detention:
Finally, it must be shown that the routine check does not so severely trench upon the s. 9 right so as to outweigh the legislative objective. The concern at this stage is the perceived potential for abuse of this power by law enforcement officials. In my opinion, these fears are unfounded. There are mechanisms already in place which prevent abuse. Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds. Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s. 24(2) of the Charter.
[29] Findlater shows that a HTA stop is an arbitrary detention, but it is one that is saved by s. 1 of the Charter. MacDonnell J. observed in that case that the police need to be able to ask persons or suspects about drugs and about whether they have consumed or are in possession of drugs, because those questions arise out of the underlying policy objectives that promote R.I.D.E. as a HTA initiative. In para. 20 of Findlater, MacDonnell J. notes that the questions about drug possession are arising in the context of what remains a R.I.D.E. stop, with no redirection of purpose having taken place.
[30] Defence counsel argues that the same cannot be said here. Here, he says that there may initially be an entirely HTA-focused detention, but that the situation of the accused in this auto stop compelled that he respond to the officer’s questions. Even if the question about anything illegal being in the vehicle may still be connected to the HTA road stop purpose that is present here, he argues that once the driver acknowledges that he is in possession of drugs, the direction of the inquiry plainly changes from one of HTA compliance purposes to one of criminal investigation related to the possession of illegal drugs.
[31] I agree with that proposition. While the first of the defendant’s utterances is plainly admissible as having been made voluntarily or at least within the limited confines of an HTA detention sanctioned by section 1 of the Charter, in my view that purpose changes necessarily once the innocent question about possession of illegal items is asked, as the officer testified, for officer safety concerns, but yields an answer that acknowledges the commission of a drug possession offence by the defendant.
[32] At that time, and from that point forward, the defendant’s circumstances of jeopardy changed from HTA-focused consequences to criminal consequences relating to possession of illegal or prohibited items. Effectively, the channel changed at that moment in time.
[33] Officer Saeed himself effectively acknowledged that change, that the nature of what was going on had changed when he interrupted the exchange that he was engaged in with the driver, and instead invited the driver of that vehicle, the defendant, to step out of the vehicle and onto the roadway. Only then, after the defendant is outside of the vehicle and after whatever time it took for the defendant to exit that vehicle, does the second question get asked – “Is there anything else illegal in your car?” I note for the record that there was no evidence that the defendant was pulled out of the vehicle by force. He was fully compliant with the officer’s request and exited the vehicle, taking whatever time was reasonably necessary to do so.
[34] However, in my opinion, that next question that emerges from that changed direction cannot be regarded simply as part of the continuing series of interactions between the officer and the defendant that was HTA-focused. The first question about whether the accused was in possession of anything illegal may still have been connected by concerns of officer safety to the earlier HTA-focused inquiries. Plainly, however, as soon as the accused acknowledged that he was in possession of hashish, the questioning immediately took on a broader scope. In my view, it is at that time that P.C. Saeed ought reasonably to have cautioned the defendant. That is when I find that the officer ought to have recognized that the territory of inquiry was changing completely, from HTA compliance to a drug possession-related criminal investigation. It required that the defendant be cautioned, because the circumstances of the defendant’s potential jeopardy had changed materially.
[35] In Findlater, the statements of the accused were not unconstitutionally obtained, because the ambit of the s. 1 Charter carve-out to what would otherwise have been an arbitrary detention brought the statements back onside constitutionally, but as well, they were only to be used for a non-incriminatory purpose. Here, the Crown seeks to have those three utterances admitted on the defendant’s trial for the truth of their contents and the statements are incriminatory, the second two directly as admissions of possession of controlled substances, and the first by serving to admit ownership of the vehicle, and thus an element of knowledge and control that is required in order to find that he knowingly possessed the items found in his vehicle.
[36] In my view, there are three different lines of analysis that need to be applied to determine the admissibility of these three statements, because of the different factual circumstances in which each of the three arise.
[37] On the first of the statements, that he had recently acquired the vehicle but had not yet registered it, I reject the defendant’s position that it ought to be ruled inadmissible as arising from a circumstance of compulsion. At that time as events unfolded, the accused was still being asked the simplest of HTA-focused questions, and it was his choice to answer those questions as he did. He could have declined to answer, which would have taken the matter legally in a different direction, but he did not choose to do that. This is not a situation of compulsion of the kind contemplated in R. v. Calder, 1994 8729 (ON CA), where the evidence would not be in existence but for a violation of the accused’s rights. In that case, after specific violation of his s. 10(b) rights, Calder was compelled to incriminate himself by making a statement to the arresting police officers. This was not a circumstance like that. In this case, Mr. Gauvin answered the officer’s properly asked question in the context of a HTA road stop, and I see no basis to exclude that statement. The fact that that statement may have collateral evidentiary value in the context of drug charges that had not even arisen yet is not a ground for its exclusion.
[38] On the second statement, once again, the question about illegal items does not and could not create a self-incrimination issue that would have required prior caution of the defendant’s rights under s. 10(b) of the Charter. This follows because the framework was entirely HTA compliance and officer safety-focused up until the accused gave an answer that caused the orientation of the police investigation to change. The officer could not have known what the response to the question would be at that point.
[39] However, once the defendant had admitted that the vehicle was his, once the first question about illegal items in the vehicle was asked and answered, once the defendant was invited to step out of his vehicle, and once the officer asks the final question, with the accused outside his vehicle and standing beside him, that framework and scenario do change. Once the matter moves on to the second illegality-related question, in my view the police failed in their obligation to give the defendant his rights before asking the second question at a time when the tenor of the investigation had plainly changed and when there was plainly a new situation of jeopardy facing the accused.
[40] So even though the defendant’s new and expanded Charter motion was not heard, in my view this is not a case like Findlater. It is not an arbitrary detention saved by section 1 of the Charter. It is instead a case where the nature of what was going on changed, and as it changed, so too the constitutional obligations of the officers to caution the defendant also changed. They changed after the defendant had answered the HTA-related questions and answered the first question relating to the presence of any illegal items within the vehicle he was driving.
[41] In the context of this case, I have considered what the consequences are that arise from that difference. In the result, the end consequence is not materially different on most aspects of evidence admissibility.
[42] First, insofar as the actual searches and seizures of the drugs and weapons all follow what I have or would have found to be a violation of the defendant’s s. 10(b) Charter rights, then that at least raises the prospect of the exclusion of not only the statements of the accused, but also the product of the search, the real evidence. In my view, however, that conclusion is not warranted on the facts of this case on any reasonable analysis conducted under R. v. Grant.
[43] First, if the police did breach the defendant’s section 10(b) Charter rights, as I have found they did when they asked the second question without a caution, to my mind it is not on the serious end of the spectrum under the first step in the Grant analysis. The officers believed that they were acting constitutionally. I think they ought to have been better attuned to how the tenor of inquiries can change from permissible HTA purposes to criminal investigation purposes, and simultaneously alter their obligations relative to this accused’s Charter rights. I think that they also ought to be better attuned to when circumstances of jeopardy change. However, it was not a breach made in bad faith or in flagrant violation of the law. To my mind it is at the low end of the scale relative to the egregiousness of the conduct that I have been required to find violated the stipulations of the Charter.
[44] Second, the privacy interests of the defendant would be largely non-existent in the SUV to the extent that Mr. Gauvin appears intent on claiming that he did not own that vehicle. However, he would have a valid privacy interest in the vehicle once he admitted that it belonged to him, even if he had not yet had it registered.
[45] Regardless of whose vehicle he is driving, however, the accused does have s. 10(b), but those rights are attenuated in circumstances such as these where the officers did not appear to consciously move from constitutional to unconstitutional action. It is attenuated where there is little, or at best a low, Charter-protected interest in the accused. On the third step under the Grant analysis, given the absence of egregious circumstances, it seems plain that the truth-seeking function and the presence of real evidence such as was obtained here calls for the balance to favour inclusion of that evidence. But that relates to the physical evidence itself, the product of the search, the drugs and the alleged dangerous weapon, not the utterances themselves.
[46] In my view, relative to the last utterance, there is no compelling section 24(1) reason in this case as there was in Findlater to find that the evidence was admissible but for issues of trial fairness. That follows because, unlike Findlater, where policy-related reasons were present that caused the police action of detaining the accused to be saved by s. 1 of the Charter, those circumstances are not present in this case. They are not present here. This is not a R.I.D.E. stop. Nonetheless, the same trial fairness consideration ultimately prevails, in my view, even under the Grant analysis. It tips the balance relative to the admissibility of the last of the three contested utterances. It causes me to rule that statement inadmissible.
[47] Here, I am content that all of the physical evidence would have been found and legally seized in any event. R. v. Colarusso, 1994 134 (SCC) establishes that an important consideration in determining whether evidence is to be admitted or excluded is whether it could and would have been discovered in any event rather than resulting from the accused being required to give conscripted evidence against himself. That consequence follows here because the defendant was driving while suspended. The car was going to be impounded, or at least there was no evidence of any basis on which it would not have been seized and impounded in the circumstances of this particular case, even if in other cases a family member might have been permitted to come and take the vehicle home for a person charged with HTA and driving-related offences.
[48] That impounding of the vehicle would necessarily have resulted in an inventory being taken by police of the contents of that vehicle. The taking of such an inventory would inevitably have meant that the drugs and the cane/sword would have been found in the vehicle and identified by the police, just as they have in this case on the search and seizure conducted after Mr. Gauvin’s statement was made.
[49] For the reasons set out above, I rule that the first two statements will be admissible at the trial of the accused, but the third statement made after the accused should have been read his rights to counsel will be excluded. All of the physical evidence, however, will be admissible.
Michael G. Quigley J.
Released: July 9, 2014
COURT FILE NO.: CR-10-90000504-0000
DATE: 20140709
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
JEREMY GAUVIN
Defendant/Respondent
Ruling No. 2
Re: Voluntariness of Utterances
and Charter s. 10(b)
Michael G. Quigley J.
Released: July 9, 2014
[^1]: 2000 SCC 38, [2000] 2 S.C.R. 3.
[^2]: 1990 108 (SCC), [1990] S.C.J. No. 53, 1 S.C.R. 1257.
[^3]: 1999 3742 (ON CA), [1999] O.J. No. 2013 (C.A.).
[^4]: 1996 508 (ON CA), [1996] O.J. No. 1728 (C.A.), 28 O.R. (3d) 577.
[^5]: 2005 SCC 37, [2005] S.C.J. No. 37, 2 S.C.R. 3.
[^6]: 2010 ONSC 5141, [2010] O.J. No. 5319 (S.C.J.).
[^7]: R. v. Ladouceur, above; see also R. v. Mellenthin, 1992 50 (SCC), [1992] S.C.J. No. 100, 3 S.C.R. 615 at paras. 26-30.
[^8]: 1994 8729 (ON CA), [1994] O.J. No. 1893, 19 O.R. (3d) 643 (C.A.), at para. 98 per Labrosse J.A.
[^9]: 1994 134 (SCC), [1994] 1 S.C.R. 20 at p. 75.