ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-0022-MO
DATE: 2014-12-29
B E T W E E N:
Her Majesty The Queen,
Ronald Poirier, for the Crown
Respondent
- and -
Thomas Lacoste,
Christopher C. Watkins, for the Applicant
Applicant
HEARD: December 10, 2014,
at Thunder Bay, Ontario
Madam Justice H.M. Pierce
Reasons on Constitutional Challenge to Detention and Arrest
Introduction
[1] The applicant, Thomas Lacoste, is charged with trafficking in marijuana on October 8, 2013. He challenges the constitutional validity of his detention and arrest on October 8, 2013, relying on s. 9 of the Charter of Rights and Freedoms. He submits that the search of his vehicle following detention and arrest was a warrantless search and contravened his right not to be subject to unreasonable search and seizure, under s. 8 of the Charter. If the court finds that the search was unreasonable, Mr. Lacoste asks that any statements or utterances given at the time of his arrest not be allowed into evidence at his trial. There is no issue as to the voluntariness of a video-taped statement given by the applicant.
[2] Although not specifically pleaded in the application, Mr. Lacoste’s counsel submits in his factum that the court should exclude evidence discovered as a consequence of the search of his person on July 22, 2013 [sic]. I conclude that this is sloppy pleading by the applicant’s counsel, both in the application and the factum. In the first instance, the date is incorrect. Mr. Lacoste was stopped on October 8, 2013. Secondly, no drugs were found on the applicant as a result of a search of his person. Marijuana was found in his vehicle as a result of the police search following his arrest.
[3] The thrust of counsel’s argument on behalf of the applicant was to seek an order excluding his utterances and statements because he was arbitrarily detained and denied his right to counsel, and to exclude the findings on the search of his vehicle as the product of an unreasonable search. I will proceed on this basis as Crown counsel did not seem to be taken by surprise during submissions and made no objection. The faults of counsel ought not to be visited upon his client.
[4] The Crown argues that the police had grounds to stop the applicant, and that the utterances made by the applicant were not as a result of police questioning, but made voluntarily. The Crown submits that the police were entitled to search the motor vehicle incident to arrest because the search advanced the purpose for the arrest in this case.
The Evidence on the Voir Dire
[5] On October 8, 2013, Officers Coleman and Colbourne of the Ontario Provincial Police, stationed at Marathon, were on duty when they received a call to be on the lookout for a westbound vehicle described as a small, white car, possibly a Chevrolet Cobalt. The sole male occupant of the vehicle was alleged to have stolen gas in White River. Officer Coleman testified that the vehicle description was vague. The dispatch information received was that the car was driven by a single male of an unspecified age and average build. He did not recall any information provided by dispatch about what the alleged gas thief was wearing and he had no recollection and no note. He agreed that Mr. Lacoste was wearing a blue t-shirt in his video statement.
[6] Officer Colbourne testified that he and Officer Coleman were alerted to a theft of gas at White River by a lone man driving a white, smaller 4-door car, possibly a Cobalt. He also described the information as vague. There was no reference to the occupant’s age, but he was said to have been wearing a hooded sweatshirt. He said this was one of the factors for pulling the applicant over.
[7] In cross-examination, Officer Colbourne agreed that the applicant was wearing a blue t-shirt that was visible to them before they stopped him; he admitted that he was in error in testifying that Mr. Lacoste was wearing a hooded sweatshirt. The applicant testified that he was wearing a blue “Echo” shirt when the officers stopped him.
[8] The officers set up their observation post near a construction site on the highway. They spotted a silver Honda driven by a young man, aged 20 – 25. They were close to the applicant’s car and decided he was acting suspiciously because he was looking over his shoulder in their direction and reaching down to the console in the car. Officer Coleman agreed in cross-examination that this was not definitive.
[9] The officers checked the licence plates on the Honda and learned that it was registered to Guy Richard, aged 45. Officer Colbourne testified that this gave the police reasonable suspicion. However, he agreed in cross-examination that it was a common occurrence to have a non-owner driving a vehicle. The officers followed the vehicle for about half a kilometre and then pulled it over, with the purpose of inquiring about stolen gas. Neither officer testified there was any conversation with the driver about stolen gas. Coleman conceded he didn’t ask Lacoste about stolen gas and said he made no note to this effect.
[10] Officer Coleman testified that when the applicant rolled the car window down, he saw small bits of raw marijuana on the seat and centre console and recognized the smell. He testified that this formed his grounds for arrest. He stated that the smell of marijuana was the trigger.
[11] The applicant advised the officer that he was driving his boss’s car and was travelling to British Columbia to visit a friend, though he did not supply her name or address.
[12] Officer Colbourne went to the passenger side of the vehicle. He testified that the passenger window was rolled down. Mr. Lacoste testified that the window was open a little and Officer Colbourne reached in and rolled it down. Officer Coleman had no recollection of his partner doing so. Officer Colbourne indicated in cross-examination that he wouldn’t have reached in and rolled down the window without permission; however he conceded that he might have done so to hear the conversation, even though he didn’t recall it.
[13] Officer Colbourne testified that the amount of marijuana in the car was small, such that he gathered it up on a piece of duct tape. Mr. Lacoste testified that he didn’t see small bits of marijuana on the console.
[14] Coleman charged the applicant with possession of marijuana, read him his rights and cautioned him. Officer Colbourne did a “pat-down” search.” He noted that it was not possible to speak to counsel on the roadside, but that the officers did not question Mr. Lacoste. He testified that Mr. Lacoste made certain utterances at the roadside, but these were not as a result of their questions. Among the utterances was an admission by the applicant that he had one marijuana cigarette in the vehicle. Lacoste said it didn’t smell.
[15] Officer Coleman advised the applicant that he intended to search the car incident to the arrest. Mr. Lacoste replied, “You’ll need a warrant to search the trunk.” The applicant was placed in the police vehicle while the car was searched.
[16] The marijuana cigarette referred to by the applicant was located in the car. In the trunk, Officer Coleman found three large garbage bags that took up most of the trunk space. There was no smell associated with these bags, even though the officer stated that the smell of marijuana was prevalent in the body of the car. I infer that the bags were opened and the contents inspected although the officer did not say so. At 1:32 p.m., the applicant was charged with trafficking in marijuana, read his rights and cautioned. Mr. Lacoste advised the officers that the marijuana seized was “legal,” in that it belonged to his boss, Guy Richard, who had a licence to grow medical marijuana. Interestingly, the officers were later able to verify this information through the Sudbury police. Mr. Richard also advised the officers that Mr. Lacoste had not placed the marijuana in the trunk. He also confirmed that his vehicle was not stolen.
[17] Officers Coleman and Colbourne transported Mr. Lacoste to the detachment, while the vehicle was secured by a third officer at the scene. Once the marijuana in the trunk was seized, it weighed in at greater than 17 kilograms. The applicant asked to contact Mr. Richard, who was the owner of the Honda. At Mr. Richard’s advice, the applicant spoke to duty counsel from the Marathon detachment. Mr. Lacoste was lodged in a cell upon his arrest until his subsequent release.
Legal Principles
[18] Three protections under the Charter of Rights and Freedoms are relevant to this application. Section 8 of the Charter guarantees the right to be secure against unreasonable search and seizure. Section 9 of the Charter protects against arbitrary detention or imprisonment. Finally, s. 10(b) of the Charter requires that, upon arrest or detention, an individual must be informed promptly of the right to retain and instruct counsel without delay and to be permitted a reasonable opportunity to do so.
[19] When does a detention occur? An individual can be physically or psychologically restrained within the meaning of the Charter. The Supreme Court of Canada concluded in R. v. Suberu, 2009 SCC 33, [2009] SCJ No. 33, para. 22, that an individual is detained when physically restrained or bound by a legal obligation to comply with a police demand, or “when police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police.”
[20] Did the police action in stopping Mr. Lacoste amount to an investigative detention? If so, what was the scope of the police power to detain him? Secondly, did the officers have grounds to search Mr. Lacoste and his vehicle in the circumstances? If they did not, the court must consider what remedy is applicable under the Charter. Thirdly, was Mr. Lacoste advised of his right to retain and instruct counsel and was he afforded a reasonable opportunity to do so?
[21] The law relating to investigative detention was discussed by the Supreme Court of Canada in R. v. Mann, 2004 SCC 52, [2004] 3 SCR 59. In Mann, two police officers were investigating at the location of a break and enter when they saw Mr. Mann, who matched the description of the suspect. Mann was walking on the sidewalk. The police stopped him, and Mann identified himself to the officers, and complied with a pat-down search for weapons. None were found.
[22] When one of the officers found a soft object in Mr. Mann’s pocket, he searched inside the pocket and discovered small bags of marijuana in two pockets. The officers arrested Mr. Mann and charged him with possession of marijuana for the purpose of trafficking. In its analysis, the court distinguished between an investigative detention with limited search powers and an arrest with the power to search incidental to arrest.
[23] Ultimately, a majority of the Supreme Court of Canada held that the officers had no reasonable basis to search Mann’s pockets, in which he had a reasonable expectation of privacy. The drugs were held to be inadmissible in evidence, and Mr. Mann was acquitted.
[24] In Mann, the Supreme Court of Canada discussed the general principles relating to investigative detention, as follows. At common law, police officers may detain individuals briefly for purposes of investigation, provided they are investigating a specific crime or criminal activity, and they have reasonable grounds to suspect that an individual may be connected to a particular crime: para. 45. This power precludes random stops. Further, the detention must be reasonably necessary on an objective view of the circumstances. As described in Mann, the circumstances include the extent to which the interference with individual liberty is necessary for the officer to perform his duty, the liberty interest interfered with, and the nature and extent of the interference.
[25] An investigative detention should be of brief duration. It should not impose an obligation on the person detained to answer an officer’s questions. The officer must advise the person detained of the reason for the detention.
[26] In Mann, the court considered search powers incident to investigative detention. At para. 36, it concluded that any search incidental to investigative detention constitutes a warrantless search and will be presumed to be unreasonable unless justified in accordance with the factors set out in R. v. Collins,1987 84 (SCC), [1987] 1 S.C.R. 265.
[27] While engaged in an investigative detention, there is no automatic right to search. Rather, an officer may conduct a pat-down search for weapons where there are reasonable grounds to believe either officer or public safety is at risk and the search is conducted in a reasonable manner: see Mann, para. 40. The right to go further and search for evidence generally exceeds the ambit of the search power on an investigative detention. An officer should not proceed to search based on a hunch or suspicion, or based on safety concerns that are not founded in reality.
[28] In Mann, the court held that good faith on the part of the officers cannot justify a Charter violation where the officer’s error is unreasonable or he or she is ignorant as to the scope of his authority.
[29] When is an individual’s right to be advised of his right to retain and instruct counsel engaged? In R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353, para. 58, the Supreme Court of Canada cited its decision in R. v. Suberu, para. 58, in holding that the right to be advised of one’s right to counsel in accordance with s. 10 (b) of the Charter “arises immediately upon detention, whether or not the detention is solely for investigative purposes.” This includes affording a person “a reasonable opportunity to obtain legal advice if he so chose, before proceeding to elicit incriminating information from him.” Thus, Mr. Lacoste’s s. 10(b) rights were triggered at the outset of the officers’ investigation, subject only to concerns about officer or public safety or in accordance with reasonable limitations prescribed by law and justified under s. 1 of the Charter: Suberu, para. 2.
Were the Applicant’s Charter Rights Breached?
[30] The evidence on the voir dire establishes that Mr. Lacoste was detained by the police. The officers in a marked police vehicle pulled over his car on the highway and stood at each exit to his vehicle. Questions were put to him. One officer reached through the window and rolled it down. A reasonable person would have concluded he was obliged to cooperate in these circumstances.
[31] The officers did not suggest that the stop was made pursuant to their duties under the Highway Traffic Act; nor was the stop part of a universal blockade, such as a R.I.D.E. program, authorized by common law. The evidence establishes that they were dispatched to look for a man believed to have stolen gas. The officers had no grounds to arrest Mr. Lacoste when they stopped him. Consequently, I conclude the officers were engaged in an investigative detention. Was it in keeping with their powers to investigate under the common law?
[32] In order to evaluate whether the stop fell within the ambit of an investigative detention, it is necessary to consider whether the officers had reasonable grounds to suspect that Mr. Lacoste was connected with the theft of gas at White River. It is possible that Mr. Lacoste could have been in the vicinity of White River at the time the complaint of stolen gas was made. It is equally possible he was not. There is no evidence one way or another, other than he was westbound on the highway.
[33] Beyond that, the officers were advised to look for a lone man wearing a hooded sweatshirt driving a small white car, possibly a Chevrolet Cobalt. Mr. Lacoste was wearing a blue t-shirt just prior to being pulled over. The officers were close enough to Mr. Lacoste to observe what he was wearing before they stopped him. Thus, they knew that his clothing did not match the description they were given. It could therefore not have formed grounds for the stop.
[34] Mr. Lacoste was driving a silver Honda Accord. The description of the car given to the officers was generic: “a small car”, and so they should be given some latitude due to the general nature of the description. However, the colour of the vehicle Lacoste was driving, silver, does not match the colour of the car driven by the gas thief: white. It is noteworthy that the officers made the stop in broad daylight, when colour distinctions would have been apparent. The colour of the vehicle Lacoste was driving could not have given the officers grounds to stop him.
[35] The officers observed Mr. Lacoste looking over his shoulder at them and reaching down to the vehicle console. They testified that this constituted nervous behaviour which they deemed suspicious. Officer Coleman agreed in cross-examination that this was not definitive. I agree. It is common for drivers on the highway to demonstrate some curiosity at the presence of a police vehicle, whether it is related to anxiety over speeding, a pending police stop, an accident, or other cause. A police presence signifies authority. In and of itself, observing police does not constitute suspicious behaviour.
[36] Similarly, reaching down to a vehicle console is consistent with operation of a vehicle. The officers could not and did not know whether Mr. Lacoste was adjusting his mirrors, reaching for coffee or a cigarette, changing music, or any other innocent explanation. There is no suggestion that he threw anything out of the vehicle. I do not accept that reaching down to the car’s console is suspicious behaviour.
[37] The officers decided that because they deemed that Lacoste was behaving suspiciously, they would search his vehicle plates. When they learned that the vehicle owner was 45 years old and they believed Mr. Lacoste was 20 – 25, they decided to stop him. The officers had no grounds to believe the vehicle was stolen, and indeed it was not stolen. In cross-examination, Officer Colbourne conceded that there are thousands of instances where a non-owner is driving another’s vehicle. Thus, this factor could not have formed grounds for stopping Mr. Lacoste for theft of gas.
[38] The officers were close enough to Lacoste’s vehicle to observe the licence plate and do a licence plate search; either the results of the plate search or their own observations should have told them that this was a Honda and not a Chevrolet. The fact that the vehicle did not match the description they had been given could not have provided grounds to suspect Lacoste was connected with the gas theft.
[39] Finally, the officers did not question Mr. Lacoste about the theft of gas, which was the criminal offence they were supposed to be investigating.
[40] In summary, the only grounds the officers had to suspect that Mr. Lacoste was linked to the theft of gas at White River were that he was coming from that general direction and he was a lone male in a small vehicle. In my view, these do not amount to reasonable grounds to suspect that Mr. Lacoste was involved in the theft of gas or other criminal activity.
[41] I conclude that the officers’ action in stopping Mr. Lacoste was therefore arbitrary and violated his right not to be arbitrarily detained under s. 9 of the Charter. Upon his arrest, he was imprisoned in the detachment cell, which was also contrary to the s. 9 guarantee that he not be arbitrarily imprisoned.
[42] Likewise, I conclude that the officers breached Mr. Lacoste’s rights to be informed of his right to retain and instruct counsel without delay and to be permitted an opportunity to do so, contrary to s. 10(b) of the Charter. As set out in Suberu, the right to be advised of one’s right to counsel in accordance with s. 10 (b) of the Charter “arises immediately upon detention, whether or not the detention is solely for investigative purposes.” The evidence in the voir dire, establishes that Mr. Lacoste was not advised of his right to counsel immediately upon his detention, but only after his arrest on a charge of possession of marijuana, having advised the officers he was in possession of a marijuana cigarette.
Was the Search Lawful?
[43] If the detention was unlawful, was the search also unlawful? I conclude that it was. The Supreme Court of Canada determined in Collins that for a search to be reasonable, it must be authorized by law, the authorizing law must be reasonable, and the search must be carried out in a reasonable manner.
[44] Even a lawful investigative detention carries very limited powers of search. Officers are limited to searching for weapons only when there are reasonable grounds to believe that officer or public safety is at risk. A hunch or suspicion does not constitute grounds to search. Upon the evidence in this voir dire, Mr. Lacoste was compliant and there were no grounds for concern about officer safety. There were no members of the public in the vicinity of the detention, so the officers were not concerned about safety of the public.
[45] The Crown takes the position that the search of the vehicle was incidental to Mr. Lacoste’s arrest. It relies on R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51 for authority. Mr. Lacoste did not consent to a search of the vehicle’s trunk. The officers were on notice of his objection when he advised them that they would need a warrant to search the trunk.
[46] In Mann, the court held that any search incidental to investigative detention constitutes a warrantless search and will be presumed to be unreasonable unless justified in accordance with the factors set out in R. v. Collins,1987 84 (SCC), [1987] 1 S.C.R. 265.
[47] In this case, I have concluded that the search was not authorized by law as it exceeded the bounds of common law search powers afforded police during investigative detentions. The applicant was arbitrarily detained; therefore his subsequent arrest for possession of marijuana was not lawful. Further, if there was no lawful arrest, there could be no lawful search incident to arrest, as described in Caslake.
[48] The applicant asks that the evidence seized and the utterances and statements made as a result of an unlawful detention and search be excluded at trial. Unfortunately, the utterances are not set out specifically in the application. I infer that these include his utterance that he had a marijuana cigarette in the vehicle; that the officer would need a search warrant to search the trunk of the car; and that the marijuana in the trunk of the vehicle “was legal” but that he didn’t have the paperwork for it. As well, exhibit 1 on the voir dire contains a videotaped statement made by the applicant some hours after his arrest.
Should the evidence, utterances, and statements made upon his arrest be excluded?
[49] Section 24(2) of the Charter sets out the jurisdiction of the court to exclude evidence. It provides:
Where, in proceedings under subsection (1) a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[50] In Grant, the court considered the meaning of s. 24(2). It held that the focus of the section is not only long-term but prospective, preserving the long-term reputation of the justice system: paras. 69 – 70.
[51] At para. 68 of Grant, the court stated:
The phrase “bring the administration of justice into disrepute”¸ must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
[52] At para. 71 of Grant, the court set out three factors for trial judges to consider when balancing how to give effect to the long-term objectives:
(a) the seriousness of the Charter infringing conduct;
(b) the impact of the breach on the accused’s Charter-protected interests; and
(c) society’s interest in the adjudication of the case on the merits.
[53] The first branch of the test requires the court to evaluate the seriousness of police conduct leading to the breach: para 73.
[54] At para. 72, the court observed:
The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.
[55] The Crown submits that when considering the conduct of the officers, they were operating in circumstances of “considerable legal uncertainty” in that the line between “reasonable grounds” and “reasonable suspicion” is very difficult to separate.
[56] I do not agree. The law with respect to investigative detention is not uncertain. It was clarified by the Supreme Court of Canada in 2004. An analysis of the conduct of the officers demonstrates that they had no reasonable grounds to suspect that the applicant was involved in a theft of gas, which was the offence they were supposed to be investigating. The grounds on which they stopped Mr. Lacoste would have applied to virtually any westbound male driver alone in a small vehicle. Such conduct greatly exceeded the bounds of police authority in the circumstances. Condoning the officers’ exercise of arbitrary authority is ultimately damaging to the rule of law.
[57] The second branch of the test requires a consideration of the impact of the breach on the applicant`s Charter-protected interests.
[58] I do not attribute bad faith to the officers; however, their conduct in stopping Mr. Lacoste led to breaches of his right not to be arbitrarily detained or imprisoned; and to be informed of his right to retain and instruct counsel without delay and to be permitted an opportunity to do so, and subjected him to unreasonable search and seizure. These are serious infringements that led to Mr. Lacoste being jailed overnight at the Marathon detachment, being subject to the costs and inconvenience of appearing in court far from home in order to defend himself, and the consequent interference in his life while doing so.
[59] Finally, the court must consider society`s interests in adjudicating the case on the merits.
[60] The evidence on the voir dire established that the applicant was in possession of one marijuana cigarette. There is no dispute that the substantial quantity of marijuana contained in the trunk of the vehicle belonged to the owner of the vehicle who placed it in the vehicle. There is also no dispute that the owner of the marijuana found in the trunk is the holder of a permit to produce quantities of marijuana for medical purposes. This would seem to suggest that, at trial, the applicant could mount a defence to the charge of trafficking, based on a reasonable doubt.
[61] In my view, a reasonable person, informed of these circumstances and the values underlying the Charter, would conclude that the admission of the marijuana, and the applicant`s utterances and statements, would bring the administration of justice into disrepute.
[62] The application is therefore granted. The court finds and declares that the detention and arrest of the applicant on October 8, 2013, represented a violation of his rights not to be arbitrarily detained or imprisoned under s. 9 of the Charter; not to be subjected to unreasonable search and seizure under s. 8 of the Charter; and to be informed of his right to retain and instruct counsel without delay, as guaranteed by s. 10(b) of the Charter.
[63] The statements and utterances made by the applicant both at the time he was stopped by the officers and subsequently, and the evidence seized by the officers following the applicant`s arrest, including all marijuana product, are ruled inadmissible at trial.
___”original signed by”
Madam Justice H.M. Pierce
Released: December 29, 2014
COURT FILE NO.: CR-14-0022-MO
DATE: 2014-12-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and -
Thomas Lacoste,
Applicant
REASONS ON
CONSTITUTIONAL CHALLENGE TO DETENTION AND ARREST
Pierce J.
Released: December 29, 2014
/mls