ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-5734
DATE: 2014-08-19
B E T W E E N:
HER MAJESTY THE QUEEN
Ms. Sandra Antoniani, Standing Agent for the Director of Public Prosecution Service of Canada
- and -
STEVEN SHIPLEY
Mr. Michael Wendl, Counsel for the Defendant Steven Shipley
HEARD: August 7th and 8th, 2014
REASONS FOR JUDGMENT
ARRELL, J.
Introduction:
[1] Mr. Shipley is charged with possession of cocaine for the purpose of trafficking and possession of proceeds of crime not exceeding $5,000.00.
[2] Mr. Shipley has brought this application seeking a stay of these proceedings on the basis that the search of his car and person was contrary to s.8 of the Charter, or, in the alternative that the evidence obtained from that search should not be admissible pursuant to s.24(2) of the Charter.
[3] The parties have agreed that the evidence on this Application would be the only evidence called on the trial. Consequently, my ruling on this Application will also determine Mr. Shipley’s guilt or innocence.
Facts:
[4] Officer Farrell, on July 29th, 2013, had 7 years of experience with the Hamilton police. He was alone, on uniform patrol, in a marked cruiser, in an area of Hamilton Mountain, on the night shift. He was well aware from his own experience, conversations with other officers, and information obtained through the Hamilton Police Services that this area of Hamilton was considered by the police to be a high drug trafficking area. He was very familiar with the area.
[5] At 9:48 p.m., Officer Farrell was proceeding west on Concession Street. It would have been dark by that time of night. The officer was approaching a Royal Bank and in the attached parking lot he saw one vehicle stopped diagonal to the marked parking spots facing the exit with its interior lights on. Since the interior lights were on the officer had a good view of the interior of the vehicle. He observed that the driver was the sole occupant of the vehicle and initially he was looking down like he was doing something on his lap. The driver looked up while the officer was observing him and he was clearly startled in Officer Farrell’s opinion. He described the look on the driver’s face as “like a deer caught in the headlights”.
[6] The officer decided he should go back to speak to the driver to investigate why he was in the empty bank parking lot, at night, parked strangely, with the interior lights on and why he would be startled upon seeing the police.
[7] The officer did a U turn and at the same time the car left the parking lot turning in the opposite direction to Officer Farrell. The officer therefore had to do another U turn to follow the vehicle.
[8] While following this vehicle, the officer entered the license number into his computer and learned he was following a rental vehicle.
[9] The officer admitted in cross examination that a rental car is often used in drug trafficking.
[10] As a result of this new information, Officer Farrell decided to stop the vehicle to make sure the driver was licensed and to investigate why the car was in the empty bank parking lot at night with its interior lights on and why the driver would be startled in seeing the police.
[11] The officer also admitted that drug involvement by the driver was one of a number of possibilities going through his mind when he decided to stop the vehicle and investigate further.
[12] Officer Farrell had the vehicle pull over and approached the driver. He asked to see vehicle documentation and the driver’s license. The accused identified himself as Stephen Casey, not Stephen Shipley. He told the officer he was licensed but did not have his license with him. He was unable to produce any photo I.D.
[13] The officer went back to his cruiser and entered the name Stephen Casey into CIPIC on his computer. The name Casey came up as an alias for Shipley and an indication that Shipley had outstanding drug related offences and was on bail for those charges. His computer produced a 4 x 4 photograph of Mr. Shipley.
[14] The officer’s suspicions were obviously heightened with the lack of a license, lack of photo I.D., the discrepancies in names, outstanding drug charges and a rental car. It turns out Casey and Shipley are both legal names for the accused but obviously at that moment that was not known to Officer Farrell. He decided he had to firm up the identification of who he had stopped and thought the best way to do that was have the driver come to his cruiser to be close to his computer to compare him to the picture on his screen. He asked the accused to accompany him to his cruiser and he complied. Upon the accused stepping out of his vehicle Officer Farrell noticed a number of plastic bags with white substance in them on the driver’s door and a further plastic bag with a white rock in it on the passenger seat.
[15] The officer felt he had reasonable and probable grounds to believe that the plastic bags were dime bags of cocaine and he called for backup and arrested the accused. Once backup arrived he did a pat down search of the accused and found $450.00 in assorted bills in various pockets, $25.00 in his wallet along with another dime bag of cocaine and a black cell phone. He then searched the car and found the already mentioned bags of cocaine from the front of the vehicle, a baby seat in the rear with bags of cocaine semi hidden in the cloth portion of the seat, another cell phone, a digital scale with white residue on it, marijuana seeds and latex gloves. The drugs weighed 35 grams.
[16] The accused was transported to the police station where Officer Farrell reported to Sgt. Easto, the booking supervisor. Sgt. Easto ordered a strip search of the accused which Officer Farrell conducted with another officer in a private area where the accused was asked to remove his clothes and then get redressed. No drugs were found on his person or in his clothes.
[17] Sgt. Easto was quite candid in testifying that he had no independent recollection of the accused. He would, however, have normally ordered a strip search given the facts of this case as related by Officer Farrell in that the accused may have had some time while alone in the car to hide drugs, that clearly bail would be opposed as the accused was already on bail for drug charges and he would therefore be placed in the general prisoner population while awaiting a bail hearing. For safety reasons he did not want drugs possibly being brought into the jail or any type of weapon.
Position of the Parties:
[18] The Defence argues very strongly that Officer Farrell did not have grounds to stop Mr. Shipley, order him out of the car and then search the vehicle. The stop was clearly a ruse based on a hunch by the officer that drugs were involved. The argument of the Defence follows that since stopping Mr. Shipley was illegal so was the subsequent search of his car, his person and the strip search and any evidence found would bring the administration of justice into disrepute and should not be admitted pursuant to s.24(2) of the Charter.
[19] The Crown urges the court to find that officer Farrell had reasonable grounds to stop the car under s.216(1) of The Highway Traffic Act and ask the accused to step out of his vehicle to confirm his identity and whether he was licensed to drive. The cocaine was clearly visible upon the accused opening the car door and the officer had every right to then arrest him and search the vehicle incidental to the arrest. As well the officer, for safety reasons, needed to do a pat down search of the accused incidental to his arrest and strip search him later before he was placed in the general prison population.
Analysis:
[20] The real issue in this case is whether Officer Farrell had reasonable grounds to stop Mr. Shipley’s vehicle and then request he step out of the car.
[21] There is no doubt the officer had a dual purpose in mind in deciding to stop the accused. He wanted to make sure the accused was properly licensed and wanted to know why he was stopped in the bank parking lot. The officer agrees that drug involvement was certainly one of the possibilities going through his mind.
[22] Justice Doherty in Brown v. Durham Police, 1998 7198 (ON CA), [1998] O.J. No. 5274 stated:
“The detention authorized by s. 216(1) of the H.T.A. is circumscribed by its purpose. The detention is limited to the roadside and must be brief, unless other grounds are established for a further detention. The police may require production of the documents which drivers are required to have with them and may detain the vehicle and its occupants while those documents are checked against information available through the computer terminal in the police vehicle. The police may also assess the mechanical fitness of the vehicle, examine equipment for compliance with safety standards and from outside of the vehicle, make a visual examination of the interior to ensure their own safety in the course of the detention: R. v. Ladouceur, supra, at pp. 1286-87; R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615 at pp. 623-24, 12 C.R.R. (2d) 65; R. v. E. (G.A.) reflex, (1992), 1992 12820 (ON CA), 77 C.C.C. (3d) 60 (Ont. C.A.). More intrusive examinations or inquiries directed at matters not relevant to highway safety concerns are not authorized by s. 216(1) of the H.T.A.: R. v. Mellenthin, supra.
The appellants argued at trial and on appeal that highway safety concerns were a ruse used by the police to justify the stopping of the appellants, their friends and associates. Had this argument been accepted, s. 216(1) of the H.T.A. could provide no lawful authority for the stops and detentions: R. v. Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2 at p. 31, 20 C.C.C. (3d) 97; R. v. Zammit 1993 3424 (ON CA), (1993), 13 O.R. (3d) 76, 15 C.R.R. (2d) 17 (C.A.). “
In the same case the author stated the following:
“The trial judge's finding that the stops were multi-purposed does, however, raise a further issue. Can purposes other than those related to highway safety matters take the stops and subsequent detentions outside of the ambit of s. 216(1) of the H.T.A. and render those stops unlawful?”
The case concluded as follows on that issue:
“I agree with this conclusion as long as the other purposes motivating the stops are not themselves improper. For example, the police are entitled on a s. 216(1) stop to require drivers to produce their licences. That requirement is consistent with the highway safety concerns which underlie the power granted by the section. In addition to ensuring that the driver is properly licensed, the police may wish to identify the driver for other purposes. It may be, as in this case, that the police are interested in knowing the identity of all those who are connected with what they believe to be organized criminal activity. The gathering of police intelligence is well within the ongoing police duty to investigate criminal activity. As long as the additional police purpose is not improper and does not entail an infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating s. 216(1) of the H.T.A., I see no reason for declaring that a legitimate police interest beyond highway safety concerns should taint the lawfulness of the stops and detention. As the trial judge pointed out, known criminals should not be more immune from s. 216(1) stops than law abiding citizens who are not known to the police.”
And further in the case the court stated:
“When I refer to improper police purposes, I include purposes which are illegal, purposes which involve the infringement of a person's constitutional rights and purposes which have nothing to do with the execution of a police officer's public duty. Officers who stop persons intending to conduct unauthorized searches, or who select persons to be stopped based on their sex or colour, or who stop someone to vent their personal animosity toward that person, all act for an improper purpose. They cannot rely on s. 216(1) of the H.T.A. even if they also have highway safety concerns when making the stop.”
[23] I disagree with the Applicant’s position that the traffic stop was a ruse. The officer, under these circumstances, was well justified in stopping the applicant under the H.T.A. to ensure he was properly licensed. There was nothing improper for the other reason for his stop which was to investigate why the Applicant was stopped at an empty bank parking lot at night, with interior lights on, in a high drug area, and looking startled upon seeing the police.
[24] I further conclude that the officer was justified in requesting that the Applicant step to his cruiser to determine his I.D. The Applicant did not have a license with him, contrary to the H.T.A. He was unable to produce any photo I.D. He was driving a rented car. He had previously looked startled upon seeing the police. He gave a name which came up with an alias when searched on the officer’s computer. The officer had a picture on his computer screen and an individual a number of feet away in his car at night with lighting obviously not at its best. Under those circumstances I think it entirely reasonable for the officer to ask the Applicant to attend at his car to be able to do a proper photo comparison with the Applicant next to his photo on the computer screen.
[25] Once the Applicant opened the door to his vehicle the drugs were clearly visible to the officer, both on the driver’s door and the passenger seat. The officer then had reasonable grounds to arrest the Applicant and search the vehicle.
[26] The Applicant takes issue with the fact that the officer was unclear about the driver’s license search of the Applicant and argues that in fact he likely never did one because he would have known the Applicant’s license was suspended, which of course was another violation of the H.T.A. This he argues should leave the credibility of the officer suspect and bolster the argument that the stop was a ruse. I disagree. The officer did a CIPIC check first which brought up the alias and that the Applicant was on bail for drug charges. He explained that the driver’s license became a secondary issue at that point and he was more interested in properly identifying the Applicant. I have no reason to doubt that explanation or the logic of it.
[27] The Applicant also argues the strip search was improper under the circumstances because it was simply being done as a matter of routine and is such an extensive invasion of privacy it should only be done in the rarest of cases.
[28] In R v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679 at para. 26 the court stated:
“For the reasons that follow, we are of the opinion that the common law search incident to arrest power does include the power to strip search. At the same time, this power is subject to limitations, which are discussed below. The prerequisites for and considerations surrounding the conduct of a valid strip search seek to balance the competing interests of valid law enforcement goals on the one hand, and individual privacy rights on the other. Given the proportionality created by these criteria, we conclude that the common law is reasonable.”
And further at para 83 the court stated:
“While the respondent and the interveners for the Crown sought to downplay the intrusiveness of strip searches, in our view it is unquestionable that they represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them. Clearly, the negative effects of a strip search can be minimized by the way in which they are carried out, but even the most sensitively conducted strip search is highly intrusive.”
[29] The court in Golden at para 91 and 92 stated that for a strip search to be justified the arrest must be lawful. I have concluded that that criterion has been met. The court also indicated that the search must be incident to the arrest or in other words the search must be related to the reasons for the arrest itself. As in Golden the Applicant here was arrested for drug trafficking and the purpose of the search was to discover illegal drugs secreted on the Applicant’s person and therefore the strip search was related to the purpose of the arrest. The court in Golden would have found the strip search reasonable had it been done in private at the police station, as was done in the case at bar, rather than a public restaurant, as in Golden.
[30] I accept that Sgt. Easto has no recollection of ordering the strip search and has no notes of it. Officer Farrell does have notes that the strip search was conducted after obtaining authorization of his supervisor Sgt. Easto. This was Officer Farrell’s first strip search so I accept when he says he has a good recollection of the events. I accept that he told Sgt. Easto the circumstances of the arrest, that the Applicant may have had time to hide some drugs, that he was on bail for drug offences and was now arrested for drug trafficking. Clearly under such circumstances bail would be opposed. As bail was to be opposed the Applicant would be placed in the general prisoner population and the police would not want drugs smuggled into the jail hidden on his person. I therefore conclude that ordering the strip search was reasonable under these circumstances.
[31] The search itself was done in private, it was done with another male officer, and the Applicant removed his own clothes. I find nothing improper about the conduct of the search and clearly it met the criteria suggested by the court in Golden.
[32] I have concluded that none of the Applicant’s Charter rights were violated. Based on that conclusion I need not do a s. 24(2) analysis.
Conclusion:
[33] The parties have agreed that if I find that the application to exclude evidence is dismissed then the Applicant would be found guilty beyond any reasonable doubt. I agree with that submission and Mr. Shipley is found guilty on both counts before the court.
Arrell, J.
Released: 19th August, 2014
COURT FILE NO.: 13-5734
DATE: 2014-08-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
STEVEN SHIPLEY
REASONS FOR JUDGMENT
ARRELL, J. (VT)
Released: 19th August, 2014