ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-10-90000504-0000
DATE: 20140709
B E T W E E N:
HER MAJESTY THE QUEEN
Sabrina Montefiore, for the Crown
Respondent
- and -
JEREMY GAUVIN
Royland Moriah, for the Defendant/Applicant
Defendant/Applicant
HEARD: June 16, 2014,
at Toronto, Ontario
Michael G. Quigley J.
Ruling No. 1
Re: Charter Ruling and Abridgement of Time
[1] On June 16, 2014, Jeremy Gauvin appeared before the court for trial on an indictment consisting of five charges: possession for the purpose of trafficking approximately 1,077 MDMA pills mixed with methamphetamine (counts 1 and 4), possession of approximately 12.75 g of cannabis resin (count 2), possession of approximately 0.19 g of ketamine (count 3), and unauthorized possession of a prohibited weapon, described as a “push-dagger” (count 5). These items were all seized in the course of a search by the police that followed a Highway Traffic Act (“HTA”) stop of the vehicle Mr. Gauvin was driving on October 20, 2006, the date of the offences.
[2] By way of pre-trial application, it has been known for at least three years that the Crown intended to apply for a voluntariness ruling relative to certain utterances made by Mr. Gauvin at the time he was pulled over and preceding his arrest. The pre-trial notes from two judicial pre-trials do not reflect that any other pre-trial applications were ever proposed.
[3] Nonetheless, on June 5, 2014, 11 days before the commencement of this trial, counsel for the defence filed a new application. On that application, Mr. Gauvin seeks an order pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”), granting the exclusion of all utterances and evidence obtained in alleged violation of his rights pursuant to ss. 8, 9, 10(a) and 10(b) of the Charter. He says that he was arbitrarily detained on October 20, 2006, that officers failed to immediately advise him of the reasons for his detention, that he was not immediately advised of his right to retain and instruct counsel, that officers engaged in searching him and the vehicle he was in without prior judicial authorization, and without reasonable and probable grounds or any other authority. He contends that those multiple violations of his Charter rights require the exclusion of all of that allegedly unconstitutionally obtained evidence.
[4] First, however, that application can only proceed if the notice period stipulated in the rules is abridged. It cannot proceed as of right in light of the fact that the Crown was not given 30 days’ notice as stipulated in the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), and in particular Rule 31 (Rules 31.01, 31.02, 31.03 and 31.04), and Rules 2 and 3. In this case, Crown counsel vigorously opposed the granting of an abridgement order.
[5] For the reasons that follow, I have determined that the application should not be heard. I am not persuaded that it is fitting in this case to grant the abridgement order sought. I find that the application ought to have been brought long before now, and indeed both counsel were admonished a year ago to prepare, serve and file their materials long before now if any such application was to be commenced. Moreover, I do not accept that if the defendant is now insistent on challenging these actions by the police and invoking the evidentiary claims that he now advances on the virtual eve of trial, that the substance of his claim would not have been known to be an issue before now, and certainly long before the notice of application filed 11 days before this trial was to commence. Both of these factors weigh against granting the abridgement order.
[6] Further, in my view, for reasons that will be elaborated upon further in the paragraphs that follow, there is no air of reality to the Charter challenge that the applicant advances and even if there was, on the defendant’s own claims that the vehicle did not belong to him, claims that are asserted in the factum that was filed on June 5, 2014, as part of the Charter application, I would not have found that he had any privacy interest in the vehicle capable of being protected by the Charter, or indeed of being breached as a result of a HTA roadside stop.
[7] Finally, even if I have erred in reaching either of those two conclusions, I would not have excluded the physical evidence under subsection 24(2) of the Charter. It all came out of a lawful HTA stop, which the case law shows was valid and lawful. Since the stop itself was lawful, and given that the courts have recognized that there can be a dual purpose to such a stop, subject to my decision in Ruling No. 2 on this trial, I would not have excluded the evidence. This also is explained in the reasons that follow and in that Ruling.
Overview of the Facts
[8] This matter is very old. As noted, Mr. Gauvin is charged with a number of drug offences and one charge of possession of a dangerous weapon, a so-called “push-dagger” hidden within a cane. The date of the offences is October 20, 2006, seven years and eight months ago. The preliminary inquiry was held in June 2010, four years ago.
[9] On October 20, 2006, Officers Watt and Saeed were on patrol in a marked police vehicle near the intersection of Coxwell Avenue and O’Connor Drive in the City of Toronto. They observed a blue SUV with a broken headlight parked on the east side of Coxwell Avenue. The officers followed the vehicle a short distance as it drove away from that location and initiated a roadside stop and pulled over the vehicle. The officer conducted a check of the licence plate and determined that the registered owner was a female who had an address in Barrie, Ontario.
[10] Officer Saeed attended the vehicle and spoke with the applicant. He was the sole occupant of that vehicle. The officer asked Mr. Gauvin for his licence, ownership and insurance. The police officers claimed that he responded “I’m having a bad day.” He told them that his driver’s licence was under suspension. The officer then questioned Mr. Gauvin about the ownership of the vehicle, and he advised that he had bought the truck recently, but that he had not yet changed the ownership. The officer asked him whether there was anything illegal in the car, and claims that the applicant responded there was some hashish in the vehicle. At that point, Officer Saeed asked Mr. Gauvin to get out of the vehicle, which he did. The officer then asked him if there was anything else in the vehicle, to which the applicant allegedly replied there was some ecstasy in a backpack in the rear seat.
[11] Officer Saeed placed Mr. Gauvin under arrest for possession of a controlled substance. He was handcuffed to the rear and searched incident to arrest. Officer Saeed read him his rights to counsel. The applicant indicated that he wished to speak to a lawyer. Arrangements were made for him to speak to a lawyer once they returned to the local police station.
[12] From that point, there was some considerable passage of time before the preliminary inquiry was held in this matter. That took place in June 2010, four years ago. When the matter moved into the Superior Court, it was first scheduled for a judicial pre-trial in October 2010, but that date was vacated in May 2010. A new judicial pre-trial was subsequently conducted.
[13] Thereafter, on December 2, 2011, two and a half years ago, the Crown advised the defendant of its intention to rely upon his statements at the time of his arrest as voluntary. The first trial was scheduled to commence on December 5, 2011, two and a half years ago. However, the first judicial pre-trial judge notes that that trial date was adjourned at the request of the defence. I understand that that may have been because the defendant may have suffered a seizure of some kind at that time.
[14] The next judicial pre-trial was held before Justice Himel on March 21, 2012, over two years ago. At that time, the Crown again affirmed that it would be seeking rulings respecting the admissibility of Mr. Gauvin’s utterances at the time of his arrest. Those utterances were allegedly made to the police officers about having a bad day, driving under suspension and other HTA-related matters, and about the presence of drugs in the car, the nature of the drugs, and their location in the vehicle. An issue that was alive at that time and is well noted in the pre-trial notes is the voluntariness of those statements.
[15] A second judicial pre-trial was held before Justice Kelly just over one year ago, on June 12, 2013. Although there had been changes in the defendant’s legal counsel since the date of the preliminary inquiry, Mr. Gauvin’s new counsel, Mr. Moriah, was present at that judicial pre-trial. Again, Justice Kelly noted there would be a two-day voir dire conducted at the commencement of the trial relative to the voluntariness of the statements made by the accused. She indicated that, “the defendant would file an application on section 10(b) and voluntariness within 30 days, with the Crown to respond within 15 days”. Importantly, that report also records that a further full copy of the disclosure from the Crown was again provided to Mr. Moriah. Kelly J.’s notes also refer to the alleged utterances that are challenged where the defendant is claimed to have said that he had hashish in the vehicle and ecstasy in a backpack in the vehicle as well.
[16] None of the court documentation records any other pre-trial applications or pre-trial issues until the defendant filed his Charter application 11 days before trial on June 5, 2014. I might note again, that is four years since the preliminary inquiry and two and a half years since the first abandoned trial date. No other factual allegations have been made at any time in this case until 11 days before trial.
[17] Now, however, the facts said by the applicant to underlie the Charter challenge he has recently commenced have changed materially from those understood throughout the case to date. There is (i) no affidavit filed in support and (ii) no actual request made in defence counsel’s application for an abridgement of the time limit stipulated in the Criminal Procedure Rules of this court, notwithstanding that the application is plainly served and filed outside the notice periods stipulated in the Rules. Importantly, however, the defendant also for the first time presents and asserts a very different factual picture in that application from what has been presented before the court at all prior judicial pre-trials, and that appears to have been the evidence presented on the preliminary inquiry.
[18] Amongst the different factual allegations now made by the defendant are the following:
(i) The applicant now says that when the officer approached his vehicle and the window was rolled down, the officer commented that the vehicle smelled like marijuana. However, this is surprising, and to my mind unlikely. If the officer had made that observation and made that comment, it is difficult to understand why it would not be reported anywhere in any of the officers’ notes or why that evidence was not forthcoming at the preliminary inquiry. As in R. v. Findlater, below, it would always be relevant evidence from the Crown’s perspective, rather than from a defence perspective. This is the first indication of such a comment allegedly having been made by one of the police officers;
(ii) The applicant was told that he was being stopped because his headlight was out. However, even though there is no indication that the officers were challenged in their testimony at the preliminary inquiry, the defendant now claims that that was not the reason given by the police officer for the road stop. He insists as well that the headlight had recently been replaced;
(iii) The defendant admitted to Officer Saeed that his driver’s licence was suspended, but he now also denies any knowledge of the contents of the vehicle, or of being the owner of that vehicle, because in the applicant’s factum he claims that the vehicle does not belong to him. In that factum it is asserted that he now claims to have acknowledged to the officers that the hashish and grinder belonged to him, but that he knew nothing about the packages of ecstasy pills that were found in a knapsack in the back seat of the vehicle because “it was not his vehicle.” These assertions respecting ownership are directly contrary to the applicant’s earlier assertion and statement that he had purchased that vehicle, but had just not gotten around to changing its ownership documentation; and
(iv) The defendant now alleges that the K-9 unit was summoned to the scene, that he was questioned by the K-9 officer and effectively threatened by him, that more drugs were found in the vehicle by the police sniffer dog who was brought to the scene, and that the police officer who managed the sniffer dog wanted to assault him for putting the sniffer dog at potential risk. However, there has been no reference at any time previously in these proceedings to the K-9 unit having been deployed in this case. Further, I was advised that question was asked at the preliminary inquiry and the police witnesses had confirmed that there was no K-9 unit involved in this case. There is no indication in any of the officers’ notes of the K-9 unit having been deployed. Thus, in this case, in the seven and a half years since these offences took place, there has never been any evidence or suggestion or insinuation of the K-9 unit having been involved and brought in to search the applicant’s vehicle until this Charter application was filed 11 days ago. Moreover, no request for disclosure was ever made by any defence counsel about any involvement of the K-9 unit in the investigation of this matter.
[19] So the question here is whether the applicant should be granted relief from the stipulated notice periods in the Rules of Criminal Procedure given that this application was only served and filed 11 days before the hearing date, rather than 30 days that are required by Rule 30.04. The rule contemplates that it may be abridged in appropriate cases. Failure to comply with a time limit is not necessarily fatal. Even though the Rules are there for a reason and need to be respected, a position acknowledged by defence counsel, there are factors that would weigh in favour of an order of abridgement, including to ensure a just result or where the abridgement is necessary in the interests of justice in whole or in part.
[20] In response to the defendant’s application, Crown counsel vigorously opposes granting the defendant the abridgement it seeks. She relies on the decision of Justice Pockele of the Ontario Court of Justice in R. v. Eric R. Lammens[^1], relative to the denial of the notice period abridgement, and the decision of MacDonnell J. of this Court in R. v. Findlater[^2], relative to the law governing what evidence is admissible arising out of a HTA stop.
[21] Although the Crown seeks to introduce certain utterances made by Mr. Gauvin at the scene of the roadside stop, it is important to note that it does not intend to introduce any statements that he made after the point at which he indicated that he wished to exercise his rights to counsel. The Crown claims that the utterances made by the applicant to Officer Saeed were made without any threats, promises, oppression or trickery from the police. As such, the Crown claims they were voluntary under the test in R. v. Oickle[^3] and ought to be admitted as having been made voluntarily.
[22] In the result, I am not persuaded that it is fitting in this case to grant the adjournment order sought by the applicant, even though the Crown would be prepared to proceed with opposing the Charter application in the event the abridging order were granted. The new Charter application will not be heard.
[23] Dealing first with the issue of time, Pockele J. addresses the importance of the time periods stipulated in the Rules in the decision in Lammens and why they need to be respected, even if not without exception when merited. I agree wholeheartedly with those sentiments. Moreover, not only do I find that this application ought to have been brought long before now, and indeed note that it was ordered that any applications were to be brought within a short period after the last pre-trial took place a year ago, but more importantly, I simply cannot accept that if the defendant is insistent on challenging these actions on the basis of the evidentiary claims that he now advances, that these would not have been known to be issues long before now.
[24] I accept defence counsel’s explanation that there may have been some difficulty with the communications and connection between the applicant and himself owing to periods of intermittent custody being served by the applicant over the past year. Nonetheless, that cannot explain why these new facts, seemingly important facts which one presumes, if true, would have been advanced at the outset of this matter in furtherance of his defence, only come forward now, seven and a half years after the offences took place. It does not explain why there is a seeming absence of support for the events referred to by the applicant having ever taken place as he describes it, either in notes of the police officers or in any of the evidence advanced at the preliminary inquiry. This is particularly true of the allegations relative to the alleged deployment of the K-9 unit.
[25] Further, in my view, as I have explained, there is no air of reality to the Charter challenge being brought by the applicant. As Pockele J. observes in the Lammens decision at p. 11, trial judges need to be able to control the proceedings, and to decline to exercise their power to grant an abridgement of the stipulated notice period when the party seeking the indulgence is unable to show a reasonable likelihood that hearing the application will assist in determining the issues that are before the court.
[26] Even if there was an air of reality to his claim, on his own materials filed by his counsel, even if it is not a sworn affidavit, his protestations relative to possession, knowledge and control of some of the drugs that were found in the vehicle he was driving arise from the new claim that the vehicle did not belong to him. As such, I would not have found that he had any material privacy interest capable of being breached or in respect of which he was owed a right by the police to be free from unreasonable search or seizure. Finally, even if I have erred on that point, I would not have excluded the evidence under section 24 (2) of the Charter. The reasons for that conclusion are explained in Ruling No. 2 issued on this trial.
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
Respondent
– and –
JEREMY GAUVIN
Defendant/Applicant
Ruling No. 1
Re: Charter Ruling and Abridgement of Time
Michael G. Quigley J.
Released: July 9, 2014
[^1]: 2011 ONCJ 99.
[^2]: 2010 ONSC 5141.
[^3]: 2000 SCC 38, [2000] 2 S.C.R. 3; [2000] S.C.J. No. 38.