COURT FILE NO.: CR/14/900000/550000
DATE: 20141007
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
DENTON COUSINS and
ROHAN WILLIAMS
Lucas Price, for the Crown
Richard Fedorwicz, for Mr. Denton Cousins
Magdalena Wyszomierska, for Mr. Rohan Williams
HEARD: September 15, 16, 17, 18 and 19, 2014
KElly J.
Reasons for decision
[1] The accused, Mr. Rohan Williams and Mr. Denton Cousins are jointly charged with possession of cocaine for the purpose of trafficking.[^1] Mr. Williams is also charged with possession of proceeds of crime.[^2] Both accused submit that the arresting officers violated their rights pursuant to sections 8, 9 and 10 of the Charter during a Highway Traffic Act (“HTA”) stop. As such, they submit that the evidence should be excluded pursuant to s. 24(2) of the Charter.
[2] Following oral argument, I advised that the application was dismissed with reasons to follow. Shortly thereafter, Mr. Williams pleaded guilty to possession of cocaine for the purpose of trafficking. It is anticipated that at the conclusion of the proceeding, Crown Counsel will dismiss the proceeds count as well as the charge against Mr. Cousins.
[3] What follows are my reasons for dismissing the Charter applications.
Overview of the Applications
[4] On September 11, 2012, the accused were traveling in a rented KIA motor vehicle. They were stopped for speeding. During the stop, two police officers detected a smell of marijuana. Questions about the smell were asked by police and answers were provided by the defendants. One officer noticed a plastic bag protruding from the pants pocket of Mr. Cousins and asked about it. Mr. Cousins was asked to step out of the vehicle and retrieved from that pocket was a small amount of marijuana. Mr. Cousins was arrested for simple possession of marijuana.
[5] Mr. Williams remained in the KIA and was investigated for speeding pursuant to the HTA. He was asked to step out of the KIA so that it could be searched incidental to the arrest of Mr. Cousins. Found beneath the passenger seat of the KIA was a shopping bag containing a significant amount of crack cocaine (510.55 grams or 18 ounces). Thereafter, both Mr. Williams and Mr. Cousins were charged with possession of cocaine for the purpose of trafficking.
[6] During the incident, $900.00 was found on Mr. Williams. He was also charged with possession of proceeds of crime.
[7] Neither accused submits that the initial stop, pursuant to the HTA, was unlawful. Both submit that their Charter rights were violated thereafter. Specifically, Mr. Cousins submits the following:
a. That he was detained when the police were investigating the smell of marijuana. As such, the police were obligated to inform him of his reason for detention. They did not, in violation of s. 10(a) of the Charter.
b. Mr. Cousins also submits that he should have been advised, immediately, of his rights to counsel before being asked questions and providing answers regarding the marijuana. He was not and therefore police violated both s. 10(b) and s. 8 of the Charter. (Mr. Cousins was only advised of his rights to counsel following the discovery of the crack cocaine.)
c. Mr. Cousins submits that the grounds for his arrest included a statement from him (“it’s a joint”) in response to questions from the police. Such a statement was unlawfully obtained. Without it, the police had no grounds to arrest Mr. Cousins. Therefore the police violated s. 9 of the Charter.
d. Without the impugned statement, the police had no grounds to arrest Mr. Cousins and therefore no grounds to search the KIA. As such, there is a further violation of s. 8 of the Charter.
[8] Counsel for Mr. Cousins submits that because of the “cascade of Charter violations”, the evidence of the statement and the crack cocaine should be excluded. Mr. Williams submits that the evidence should be excluded pursuant to s. 24(2) as a result of the following Charter violations:
a. The police conducted an unlawful search that began with the questioning of Mr. Williams about the presence of marijuana in the vehicle. He was not advised of his reasons for detention and no rights to counsel were provided in advance of such questioning in violation of ss. 10(b) and 8 of the Charter.
b. The unlawful search of Mr. Williams continued with his removal from and search of the KIA, as well as the search of him on the roadside. These two searches were in violation of s. 8 of the Charter.
[9] Crown Counsel properly conceded that there was a breach of s. 10(b) with the initial questioning of both accused regarding the presence of marijuana in the KIA. Crown Counsel also concedes that there was a breach of Mr. Williams’ s. 8 rights when he was asked to empty his pockets on the side of the road and before the crack cocaine was discovered. He submits that there were no other violations and that such violations do not lead to exclusion of the evidence pursuant to s. 24(2) of the Charter. I agree.
The Facts
[10] On September 11, 2012 at approximately 9:00 p.m., Mr. Williams was driving a KIA motor vehicle rented by Mr. Cousins. They were traveling westbound on Lawrence Avenue West in the City of Toronto. Members of the Toronto Police Service (Police Constables Jackson and Patrick) had set up a speed trap in the area.
[11] P.C. Jackson clocked the KIA traveling at 73 km per hour in an unmarked 50 km per hour zone. The KIA was pulled over and stopped. Both officers exited the scout car.
[12] P.C. Jackson approached the driver’s side of the KIA. P.C. Patrick approached the passenger side. Both officers said they detected a strong odour of fresh marijuana as they did. When P.C. Jackson got to the driver’s side of the KIA he advised Mr. Williams (who was in the driver’s seat) that their interaction was being recorded: he was wearing a microphone and there was a video camera on the scout car.
[13] Although the entirety of the interaction is not audible, Crown Counsel has provided a transcript of the interaction which appears to accurately record the audible portions. It is clear from the recording that the following occurred:
a. When the officers reached the KIA, P.C. Jackson immediately informed Mr. Williams that there was a camera on the scout car and that he was wearing a microphone so that “everything we say or do we record”.
b. Immediately after advising Mr. Williams about the recording devices, the following exchange takes place:
P.C. Jackson: Someone smoking marijuana in this car?
Mr. Williams: No man.
P.C. Jackson: Smells like marijuana.
Mr. Cousins: Nothing.
P.C. Williams: No one has marijuana?
Mr. Williams: No.
Mr. Cousins: No sir.
PC Jackson: Are you sure?
Mr. Williams: Ya.
Mr. Cousins: No sir.
P.C. Jackson: You don’t have anything? Smells pretty heavy like marijuana….what’s that baggie sticking out of your pocket right there sir? (while speaking to Mr. Cousins.) Right there. What is that?
Mr. Cousins: It’s a joint.
P.C. Jackson (to P.C. Patrick): You want to get him out?
Mr. Williams: He’s a Rasta man.
P.C. Jackson: What is that?
P.C. Patrick (to Mr. Cousins): Come on out. Okay. In here.
P.C. Jackson: Okay. Do you have anything on you?
Mr. Williams: No. I don’t have nothing.
P.C. Jackson: Nothing?
P.C. Patrick (to Mr. Cousins): Keep your hands out of your pockets. [inaudible] Well, it was in your pocket right? Stand here.
c. After this dialogue, P.C. Patrick is observed searching Mr. Cousins at the side of the road. The baggie of marijuana was retrieved. He asked Mr. Cousins if he had anything more on his person to which Mr. Cousins responded “no”. He also asked whether Mr. Cousins had been in trouble with the police before to which he responded “no”.
d. P.C. Jackson continued to speak with Mr. Williams who remained in the driver’s seat of the KIA. Mr. Williams complied with the demands made to produce his licence, etc. P.C. Jackson asked, again: “Is there any more marijuana in this car?” to which Mr. Williams responded: “no”. Eventually, Mr. Williams was asked to step out of the KIA so that it could be searched incident to the arrest of Mr. Cousins for possession of marijuana. Mr. Williams complied.
e. P.C. Jackson advised Mr. Williams that he saw some plastic protruding from the area between the driver seat and the console of the KIA. He believed such plastic was consistent with the plastic on the baggie protruding from the pant pocket of Mr. Cousins. He searched that area and confirmed that it was not. He communicated this to Mr. Williams.
f. Almost immediately after Mr. Williams reached the curb, P.C. Patrick asked him to take everything out of his pockets. When Mr. Williams approached the KIA during P.C. Jackson’s search of it, P.C. Patrick said: “Leave it. My partner will investigate it. Empty your pockets”. He further advised that the police had the right to search the KIA. He asked Mr. Williams a further two times to empty his pockets and put the items on the ground.
g. P.C. Jackson continued the search of the KIA. He discovered a plastic bag under the passenger seat. He believed the bag to contain a large amount of crack cocaine.
h. P.C. Jackson then turned toward Mr. Williams and advised him to put his hands behind his back. At that point Mr. Williams went toward the KIA. He reached into it, grabbed the plastic bag that was sitting on the passenger seat, and threw it across his body. The bag opened, scattering pieces of crack cocaine across the ground. Mr. Williams tried to run. P.C. Patrick was able to detain Mr. Williams.
[14] It was only after the discovery of the crack cocaine and their arrests that Mr. Cousins and Mr. Williams were afforded their rights to counsel. A full search of the KIA incident to arrest was conducted and items found included: marijuana in the console between the two front seats, two cell phones, a razor blade and a scale.
[15] The quantity of narcotics seized during this incident is as follows:
a. From the pocket of Mr. Cousins: .69 grams of marijuana.
b. From the pocket of Mr. Williams: 2.25 grams of marijuana.
c. From the console between the two front seats of the KIA: 3.5 grams of marijuana.
d. From underneath the passenger seat of the KIA: 550.55 grams of crack cocaine.
Analysis
[16] As previously stated, both accused concede that the initial stop by police on September 11, 2012 was lawful. It is the conduct thereafter that they submit gives rise to the Charter breaches and their submission that the evidence should be excluded.
Was there a violation of s. 10(a) of the Charter?
[17] Section 10(a) of the Charter provides that: “Everyone has the right on arrest or detention to be informed promptly of the reasons therefor”. There is no doubt but that Mr. Williams was detained because he violated the HTA due to speeding. Within minutes of his detention, he was advised of that reason. He was asked to step out of the KIA so that it could be searched incidental to the arrest of Mr. Cousins. A review of the video makes the reason for stopping the KIA obvious.
[18] Mr. Cousins was detained for the purpose of the criminal charge of possessing marijuana. There is no doubt that the initial questions posed by P.C. Jackson would have alerted Mr. Cousins (and Mr. Williams) to that reason. Further, Mr. Cousins was arrested within seconds of those questions being asked, the baggie being identified in his pocket and being asked to step out of the KIA. Accordingly, he was well aware of his reasons for detention, albeit his rights to counsel were not provided until later.
[19] Neither defendant testified during the voir dire. I find both accused were aware, almost immediately, of the reasons for detention. I do not accept that there was any violation of s. 10(a) of the Charter.
Was there a violation of ss. 10(b) and 8 of the Charter re: questioning?
[20] There is no doubt but that the initial questions posed by P.C. Jackson were ones about the existence of marijuana in the vehicle as opposed to questions regarding the HTA offence of speeding. Neither officer testified that such questions were asked, particularly of Mr. Williams, because they were concerned about his sobriety.
[21] It has been held that questioning about marijuana in a vehicle does not necessarily transform an HTA investigation into a criminal investigation if the purpose of asking the question(s) is to determine the driver’s sobriety. I do not find that this was the case and as such, I do find that the questions did cause a breach of s. 10(b) of the Charter.
[22] I agree with Crown Counsel that there was a breach of s. 10(b) of the Charter when the questioning commenced regarding the existence of marijuana in the KIA. After having smelled an odor of marijuana in the KIA, the police were obligated to provide the accused with their rights to counsel. They did not and accordingly, section 10(b) of the Charter was breached.[^3]
[23] I also find that pursuant to R. v. Mellenthin,[^4] there was a breach of s. 8 with respect to the questioning by P.C. Jackson. A search includes the asking of questions. The initial questions pertaining to the existence of marijuana inside the KIA were elements of a search and one that was unreasonable in contravention of s. 8 of Charter.
Was the arrest unlawful in violation of s. 9 of the Charter?
[24] Section 9 of the Charter provides that “everyone has the right not to be arbitrarily detained or imprisoned”. Counsel for the accused submit that the smell of marijuana was not enough to detain and arrest Mr. Cousins. Further, they submit that P.C. Jackson is not being truthful when he says that he observed a baggie containing a green leafy substance protruding from the pocket of Mr. Cousins. They submit that the arrest only occurred because of the impugned statement by Mr. Cousins in response to improper questioning: that he possessed a “joint”. I do not agree.
[25] The police, in this case, proceeded to stop the KIA for proper regulatory purposes. The fact that they also had criminal investigative interests which, standing alone would not have justified the stop, does not give rise to arbitrary detention. They smelled marijuana. They investigated. They made observations and they arrested Mr. Cousins. The arrest occurred within a very short period of time on grounds that were developed independent of anything either of the accused said in their exchange with police. The questions posed and the answers received played no causal role in the arrest. The grounds existed independent of this breach due to the smell of marijuana and observations of the baggie.
a. The “smell” evidence
[26] It is well settled that the smell of marijuana, alone, can provide reasonable and probable grounds for arrest.[^5] I find that both officers had the requisite experience to conclude that what they smelled, when approaching the KIA, was fresh marijuana. In coming to this conclusion, I am mindful of the caution provided by the Court of Appeal in R. v. Morris at para. 8: “While previous cases have cautioned against placing undue reliance upon “smell” evidence, there is no legal barrier to the use of such evidence.”[^6]
[27] It is obvious from the video that both officers, when approaching the KIA, smelled an odor of marijuana emanating from it. After having identified the smell and advising the defendants about the recording, the first question posed by P.C. Jackson was about marijuana, not speeding. In my view, he did not ask such questions because he was curious or because he was on a fishing expedition, he asked such questions because he smelled an odor of marijuana as he approached the KIA. P.C. Jackson’s actions on the video support the immediacy of his detection of the odor of marijuana.
[28] There is evidence before the Court that discloses the extent of the officer’s experience that would allow them to conclude that what they smelled was indeed, marijuana. Such experience comes from their training, in making arrests for marijuana related offences and their exposure to the substance in general. That evidence may be summarized as follows regarding P.C. Jackson:
a. That he had been a member of the Toronto Police Service since 2011. Accordingly, at the time of this arrest, he had been employed in that capacity for just over one year. He had received training at the Ontario Police College, part of which included exposure to both burnt and fresh marijuana despite the fact that such exposure was fleeting: a matter of seconds within a controlled setting.
b. P.C. Jackson testified that the range of his exposure to marijuana during investigations was between 5 and 15 times (approximately).
c. P.C. Jackson also testified that he had been exposed to fresh marijuana at 12 Division when other officers had seized it as part of their investigations. Further, he has been exposed to the smell of fresh marijuana at the station when it was contained in property lockers.[^7] Based on his experience, P.C. Jackson was able to distinguish between the smell of burnt and fresh marijuana. He described the fresh marijuana as having a more pungent odor and a damp “herbie smell”. Smoked marijuana smells more “skunky” and has a “burning smell”.
[29] Counsel for Mr. Williams suggests that P.C. Jackson’s ability to identify the smell of fresh marijuana is not reliable for a number of reasons. Firstly, P.C. Jackson’s evidence about “when” he smelled the marijuana differs from that given at the preliminary hearing. At trial, he said that he smelled the marijuana as he approached the KIA. In his notebook and at the preliminary hearing he testified that it was only after he asked Mr. Williams for his ownership, insurance, etc. and it was produced that he could smell fresh marijuana.[^8]
[30] P.C. Jackson’s evidence at trial regarding “when” he smelled the fresh marijuana is consistent with what is observed on the video and heard in the audio. He only looked at the video after the preliminary hearing. It is obvious that he smelled the marijuana shortly after the KIA was stopped because after advising the accused of the recording, he immediately started asking questions about marijuana. The request for documentation occurred thereafter. I find that P.C. Jackson was mistaken about the chronology of what happened at the scene when he recorded it in his notebook and testified at the preliminary hearing. However, the content remains the same: he smelled fresh marijuana emanating from the KIA – that is why he asked questions about it almost immediately.
[31] Further, P.C. Jackson knew the incident was being videotaped and audiotaped. In light of this, I doubt that he wrote his notes or testified in the preliminary hearing in contradiction to such tapes in an effort to mislead counsel or the Court.
[32] Another submission about the unreliability of P.C. Jackson’s ability to identify the smell of marijuana was this: if P.C. Jackson was aware of the distinction between burnt marijuana and fresh marijuana, then why was his initial question about smoking marijuana and not possession of marijuana? I accept that P.C. Jackson knows the difference between the two (fresh and burnt marijuana) but simply asked about anyone having smoked marijuana because he was taken off guard. He believed that he was investigating a routine HTA stop and was taken aback by the smell of marijuana. I do not find that the initial question about burnt marijuana impugns his ability to smell fresh marijuana as he did on the night in question. He simply made an inquiry about burnt marijuana instead of saying something like: “is there fresh marijuana in here because it smells like it”. The reality is this: P.C. Jackson smelled marijuana. He followed up on that smell by asking questions and making observations.
[33] Counsel further submits that P.C. Jackson is not being truthful when he describes his experience with marijuana such that this Court should not be satisfied that he has sufficient experience to identify the smell of fresh marijuana. At the preliminary hearing, P.C. Jackson testified that he had experience with 3 to 4 drug investigations involving marijuana and indicated that he was reluctant to provide an exact number because he did not wish to mislead the Court. At trial, P.C. Jackson testified that the range of his exposure to marijuana was between 5 and 15 times (approximately). He testified that the range increased because he had time to think about it following the preliminary hearing. I accept such an explanation.
[34] I do not find that the inconsistency about his exposure to marijuana is so material that it makes P.C. Jackson’s evidence unreliable. I would have expected him to think further about his experience with marijuana as a result of the repeated questions asked of him at the preliminary hearing. I suspect he would have been criticized by counsel in cross-examination had he not done so.
[35] P.C. Patrick’s experience with marijuana is as follows and as described at trial:
a. At the time of this incident, he had been on the force for three years. He had participated in 5 to 10 investigations involving both burnt and fresh marijuana.
b. He too, testified that he had smelled it at the station: approximately once a week.
[36] Counsel suggests that P.C. Patrick’s ability to identify the smell of fresh marijuana is not reliable because at the preliminary hearing he testified that he had been involved in 4 to 5 investigations involving marijuana. Further, Counsel submits that P.C. Jackson’s credibility is negatively affected because he could not describe the odor at the preliminary hearing, but could do so at trial. I do not accept such a submission and even if inconsistent, the inconsistencies are not so material to affect the reliability of P.C. Patrick.
[37] Lastly, Counsel also suggests that the strength of the odor as described by the officers is inconsistent with the amounts found in the KIA. I do not accept such a submission. Fresh marijuana was found on Mr. Williams who was sitting in the front passenger seat. Fresh marijuana was also found in the console between the two front seats. Lastly, fresh marijuana was found on Mr. Cousins sitting in the passenger seat. Accordingly, fresh marijuana was in the KIA and in a location for both officers to smell.
[38] I am satisfied that both officers had enough experience to identify the smell of fresh marijuana in the KIA that night. Their actions on the videotape support such a finding. It was one of the reasons for the arrest of Mr. Cousins.
a. The identification of the “baggie”
[39] Counsel submits that P.C. Jackson’s observation of a baggie protruding from the pocket of Mr. Cousins containing a green leafy substance is unreliable and further, is untrue. There are a number of reasons for this submission.
[40] Firstly, counsel submits that it would have been impossible for P.C. Jackson to have made such an observation based on the baggie itself. I do not agree. The baggie was entered as an exhibit at trial and I am satisfied that the baggie is of such a size that three inches of it could have been protruding from the pants of Mr. Cousins’ pocket as P.C. Jackson describes.
[41] Secondly, Counsel submits that had the baggie been protruding from the pants pocket as described by P.C. Jackson then P.C. Patrick would have made such an observation but did not. I do not agree that P.C. Patrick was in a position to observe the baggie in the left front pocket of Mr. Cousins’ pants. P.C. Patrick was on the passenger side of the KIA. He had a view of the right side of Mr. Cousins and the left pocket would have been adjacent to the console. The baggie would not have been readily apparent even when P.C. Jackson looked through the front window. Further, P.C. Jackson testified that his view of the pocket was impaired by the clothing worn by Mr. Cousins, something that might not have impaired the view of P.C. Jackson from the opposite side of the KIA.[^9] P.C. Patrick’s reason for being unable to see the baggie sounds logical and in my view, does not detract from the reliability of P.C. Jackson’s observations.
[42] P.C. Patrick denied seeing the baggie even when P.C. Jackson pointed the flashlight in the direction of the baggie. Had P.C. Patrick intended to mislead the Court on this point, surely he would have indicated that in fact, he had observed the baggie ‑ supporting the observations of his partner. He did not and I accept that he simply did not see it until it was pulled out of the pocket. This is logical.
[43] Counsel also submits that the evidence with respect to his observation of the baggie and the contents of it cannot be relied upon due to the method in which it was brought to the attention of P.C. Patrick. At the preliminary hearing, P.C. Jackson testified that after he observed the baggie containing the marijuana in Mr. Cousins’ pocket, he “advised”[^10] his escort (meaning verbally) that he observed the marijuana. In essence, P.C. Jackson used words to direct P.C. Patrick’s attention to the baggie. At the preliminary hearing, P.C. Patrick confirmed that words were used to draw his attention to the baggie. However, the video evidence contradicts them: no such words were used.
[44] Both officers testified that they only looked at the videotape after the preliminary hearing and before trial. At trial, they both testified that the flashlight was used by P.C. Jackson to draw attention to the baggie. This is obvious from a review of the video.
[45] Counsel suggests that the change in evidence regarding the flashlight is tainted because, they both changed their testimony from the preliminary hearing (use of words) to the use of a flashlight at trial. There is no evidence to suggest that the officers colluded on this point. They both looked at the videotape separately. They did not discuss it. Put simply, they viewed the best evidence available (the videotape) and testified that in fact, words were not used by P.C. Jackson to draw attention to the baggie, but that a flashlight was used. It is obvious that P.C. Jackson is attempting to draw P.C. Patrick’s attention to the front left pocket through the use of the flashlight. It obviously worked because during the search of Mr. Cousins, P.C. Patrick refers to something in Mr. Cousins’ pocket when he says: “Keep your hands out of your pockets. Well it was in your pocket right? Stand here. Do you have any more?” This dialogue demonstrates that P.C. Patrick is referring to marijuana in Mr. Cousins’ pocket.
[46] Lastly, counsel submits that had P.C. Jackson actually seen what he believed to be marijuana in the pocket, he would not have asked “what’s that baggie” and would have identified the baggie as containing marijuana by saying something like: “there’s the weed”. The reason he asked “what’s that baggie” is because he meant just that: he did not know what was in the baggie and had no basis to conclude that it contained marijuana. I do not agree.
[47] If one watches the video and listens to the audio portion, it is clear that P.C. Jackson smells marijuana. Almost instantly, he starts to ask questions about the existence of marijuana in the KIA. He pulls out his flashlight and points it into the area of Mr. Cousins’ left front pants pocket and says: “Smells pretty heavy like marijuana. What’s that baggie sticking out of your pocket right there sir?” In my view, the question asked (“what’s that”) by P.C. Jackson was more of a rhetorical one based on his smell of marijuana, his questions about marijuana and his use of the flashlight to direct the attention of those present to the baggie. He persists in asking “what is that?” two more times because he remains of the view that it is marijuana in that pocket. If he was not of that belief, I doubt that he would have been so persistent in his effort to draw the attention to the existence of the baggie in the pocket.
[48] I accept that it was the intention of the police to conduct an investigation for speeding pursuant to the HTA. Assuming that all was in order, they intended to let the accused get on their way. That changed when they smelled marijuana and observed the baggie. Such detention was not arbitrary in contravention of s. 9 of the Charter.
Were the searches unlawful in violation of s. 8 of the Charter?
a. The search of the KIA
[49] Due to the fact that I have found the arrest of Mr. Cousins lawful, I also find that there was no violation of s. 8 of the Charter regarding the physical search of both Mr. Cousins and the KIA. Once the lawful arrest was made, the officers were entitled to search Mr. Cousins and the KIA.
[50] The law of search incident to arrest was settled in R. v. Debot where Martin J.A. held that where an officer has grounds for a lawful arrest, “the fact that the search preceded the arrest does not preclude it from being a search incident to a valid arrest, where the arrest quickly follows the search”.[^11] There is ample authority since Debot that authorizes a search incident to the arrest of an occupant of a vehicle to secure evidence associated to the arrest.[^12]
[51] In this case, Mr. Cousins was arrested for possessing marijuana. It was clearly incidental to his arrest that the police search the KIA in which Mr. Cousins was located. There is an obvious link between the location of the search (the KIA), the purpose of the search (to preserve any evidence) and the grounds for the arrest (the smell of marijuana in the KIA and the green leafy substance in a plastic bag protruding from Mr. Cousins’ pocket).
[52] It is clear from a review of the video that P.C. Jackson did limit his search of the KIA to the area where Mr. Cousins was sitting. He did not use the arrest of Mr. Cousins to search the entirety of the KIA. The crack cocaine was found beneath the seat of Mr. Cousins.
b. The search of Mr. Williams
[53] Mr. Williams was detained pursuant to the offences in violation of the HTA. He was asked to exit the KIA so that P.C. Jackson could search it. When Mr. Williams approached the sidewalk, he put his hand in his pocket. It was immediately after that action that P.C. Jackson asked him to empty his pockets. Initially, he was not compliant and was asked several times to do so. Eventually he did. These requests, in my view, were in breach of s. 8 of the Charter regardless of the reason that such a request was made: for officer safety. P.C. Patrick could have maintained officer safety by asking Mr. Williams to keep his hands out of his pockets.
Should the Evidence be Excluded?
[54] Pursuant to the above, I have found the following:
a. That there was no breach of s. 10(a) of the Charter as both accused knew the reasons for their detention.
b. That the s. 10(b) and s. 8 Charter rights of both accused were breached when they were asked questions and provided answers regarding the existence of marijuana in the KIA.
c. That Mr. Cousins was not arbitrarily detained in breach of s. 9 of the Charter.
d. That the police had grounds to arrest Mr. Cousins for possession of marijuana and therefore there was no breach of s. 8 of the Charter when the officers searched the KIA incidental to his arrest.
e. That Mr. Williams’ s. 8 Charter rights were breached when P.C. Jackson asked him to remove the contents of his pockets.
[55] Having found that there have been certain breaches of Charter rights, I must now consider whether the evidence should be excluded pursuant to s. 24(2). In R. v. Grant,[^13] the Supreme Court of Canada held that on an application to exclude evidence under s. 24(2) of the Charter, a court “must 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”.
(1) Seriousness of the Charter-Infringing Conduct
[56] The first line of inquiry in Grant considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. As stated in R. v. Harrison:[^14] “Did it involve misconduct from which the court should be concerned to disassociate itself?” If so, such disassociation is achieved by excluding the “evidentiary fruits of the state misconduct”.[^15]
[57] The majority of the Court in Grant observed that there is a continuum of seriousness ranging from inadvertent or minor violations through to willful or reckless disregard of a person’s Charter rights. Those violations that are minor may minimally undermine public confidence in the rule of law. Those that are willful or reckless may “inevitably” have a negative effect and risk bringing the administration of justice into disrepute.[^16]
The s. 10(b) and 8 Violations re: Questioning:
[58] As I have stated above, I find that P.C. Jackson violated the rights of both accused when he commenced his investigation by asking questions about the existence of marijuana in the KIA as opposed to the HTA investigation. However, I do not find that such an infringement was on the serious end of the continuum.
[59] In my view, both officers were honest in their attempt to do their job in accordance with their duty, including being Charter-compliant. The investigation transformed from a routine traffic stop to a criminal investigation. Questions were asked after both officers smelled marijuana as they approached the KIA. The time that elapsed between the initial contact between the officers and the removal of Mr. Cousins from the KIA was approximately 21 seconds. Accordingly, his rights to counsel while in the KIA were violated for well less than one minute.
[60] I do not agree that P.C. Patrick took a casual attitude with respect to the provision of rights to counsel. He indicated to the Court that he would provide such rights “when time allows” for it. He explained that the situation was a dynamic one and that it was not appropriate to produce his memo book and provide Mr. Cousins with his rights to counsel immediately upon arrest. I agree with this, especially when his conduct is put into context.
[61] P.C. Patrick is observed speaking to Mr. Cousins at the side of the road. He does a search of Mr. Cousins. Shortly thereafter, Mr. Williams joins them. He is now standing with the two accused (Mr. Cousins and Mr. Williams) on the side of the road with many cars driving by and pedestrians in the area while his partner’s back is turned to them searching the KIA. Neither accused are handcuffed and Mr. Williams keeps moving around. For the purposes of officer safety (and perhaps public safety), P.C. Patrick did not think it appropriate to take out his notebook and provide the accused their rights to counsel. There was a delay in providing those rights of less than 2 minutes.
[62] Lastly, I find that there was no nexus between the questions and answers about marijuana and the discovery of the crack cocaine sought to be excluded. The crack cocaine was found incident to the arrest and would have been discovered in any event. For all of the above reasons, I do not find that such a violation was so serious as to warrant exclusion.
The s. 8 violation re: Search:
[63] I find the breach of s. 8 in asking Mr. Williams to empty his pockets is also minimal. It is obvious from reviewing the videotape that Mr. Williams puts his hand in his pocket as he exited the KIA and walked toward P.C. Patrick and Mr. Cousins. P.C. Jackson acted too quickly in making the request that Mr. Williams empty his pockets for purposes of officer safety. However, and even when Mr. Williams did not comply with the request, no voices were raised and no physical actions were imposed on Mr. Williams.
[64] While not ideal, I do not find that such a request of Mr. Williams to empty his pockets is one that warrants exclusion of the evidence. While it might have been better for P.C. Patrick to advise Mr. Williams to keep his hands out of his pockets, I do not find the request to empty them of such a serious nature that such a violation of s. 8 warrants exclusion of evidence.
(2) Impact on the Charter-Protected Interests of the Applicants
[65] The second line of inquiry involves a consideration of the extent to which the breach actually undermined the interests protected by the right infringed.
[66] The impact of the Charter-infringing conduct in this case is negligible. There is no doubt that the questions about marijuana were ill advised. However, the failure to provide rights to counsel is fleeting as is the search of Mr. Williams. The time elapsed before reading rights to counsel is not significant in the circumstances. Further, the request that Mr. Williams empty his pockets was simply premature. The impugned breaches, in my view, were not terribly intrusive although it is fair to say that Mr. Williams has a reasonable expectation of privacy in his pockets.
(3) Society’s Interest on Adjudication on the Merits
[67] In the third line of inquiry as set out in Grant, the court is to consider factors such as the reliability of the evidence and its importance to the Crown’s case. As the Supreme Court stated in Grant at para. 81: “exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, this bringing the administration into disrepute”.
[68] In this case, 510.55 grams of crack cocaine was seized from the KIA. Such evidence is reliable. It is agreed that the value of the crack cocaine is as follows:
a. At the gram level: 1 gram has a value of $80-$100 and accordingly the value would be $40,800 - $51,000 if sold by the gram.
b. At the ounce level (28 grams): 1 ounce has a value of $1,200-$1,500 so the value would be $21,600-$27,000 if sold by the ounce.
c. By individual usage: the average individual use is .1-.2 grams. Over 510.55 grams has approximately 2,500-5,000 individual doses.
[69] I agree with Crown Counsel that the actions of the officers are not such that a reasonable person would lose faith in the administration of justice if the evidence is admitted. The conduct of both officers was not fully Charter-compliant and they made mistakes. However, there was no “cascade of breaches” as submitted by Counsel for the accused. There were minor errors made over a short period of time and in a dynamic, evolving investigation. Such errors in my view are not such that they warrant exclusion of the evidence.
[70] Put simply, the crack cocaine and proceeds found are reliable and highly probative evidence. The offences charged are ones that society has a high interest in having adjudicated on the merits. It is my view that excluding the evidence in this case would bring the administration of justice into disrepute. Accordingly, the evidence is admitted and the application is dismissed.
Kelly J.
Released: October 7, 2014
COURT FILE NO.: CR/14/900000/550000
DATE: 20141007
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DENTON COUSINS and
ROHAN WILLIAMS
reasons for decision
Kelly J.
Released: October 7, 2014
[^1]: Contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19
[^2]: Contrary to sections 354(1)(a) and 355(b) of the Criminal Code, R.S.C., 1985, c. C-46
[^3]: R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257 at p. 1287
[^4]: (1992) 1992 50 (SCC), S.C.J. 100 at para. 18
[^5]: See: R. v. Polashek, 1999 3714 (ON CA), [1999] O.J. 968 (C.A.) at para. 14
[^6]: 2013 ONCA 223, [2013] O.J. No. 1583 (C.A.)
[^7]: When asked why he had not mentioned such exposure at the preliminary hearing, P.C. Jackson said that he had forgotten about this. I accept such an explanation.
[^8]: See: pages 112 and 113 of P.C. Jackson’s evidence from the preliminary hearing dated August 29, 2013.
[^9]: P.C. Jackson was not cross-examined on whether or not the clothing worn by Mr. Cousins impaired his view.
[^10]: See: pages 112 and 116 of P.C. Jackson’s evidence from the preliminary hearing, dated August 29, 2013.
[^11]: (1986), 1986 113 (ON CA), 30 C.C.C. (3d) 207 at 223 (C.A.) [affirmed on other grounds, 1989 13 (SCC), [1989] 2 S.C.R. 1140]
[^12]: R. v. Nolet, 2010 SCC 24, [2010] S.C.J. No. 24 (S.C.C.) at paras. 49-52, R. v. Caslake, 1998 838 (SCC), [1998] S.C.J. No. 3 (S.C.C.) at para. 26, and Polashek, supra, note 2 at paras. 25-26.
[^13]: 2009 SCC 32, [2009] 2 S.C.R. 353, 245 C.C.C. (3d) 1 (S.C.C.) at para. 71
[^14]: 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 22
[^15]: See: R. v. Blake 2010 ONCA 1 at para. 23
[^16]: See: R. v. Grant, supra, para. 74