CITATION: R. v. Moulton, 2015 ONSC 1047
COURT FILE NO.: CRIM 678/13
DATE: 2015/02/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
J.W. Leising, for the Crown
- and -
TRAVON MOULTON AND THEODORE ALLEN
Stephanie Boydell, counsel for
Travon Moulton
Olivia Balanga, counsel for
Theodore Allen
HEARD: January 26, 27, 28, 2015
PRE-TRIAL RULING
SECTIONS 8, 9, 10(a) and (b), and 24(2) Charter Application
M. FAIRBURN J.
Introduction
[1] The accused are charged on a multi-count indictment with possession for the purpose of trafficking in crack cocaine, obstructing a peace officer by providing false information, and assaulting peace officers. The charges stem from an incident at the Motel 6 on Steelwell Road in Brampton. What started as a rather bland interaction between the accused and police, progressed to pat-down searches, a warrantless entry into a motel room, flight, and a violent struggle between one of the officers and Theodore Allen.
[2] The accused argue that their ss. 8, 9, 10(a) and (b) Charter rights were infringed. They say that they were arbitrarily detained and that the police failed to inform them as to the reason for their detention and of their right to counsel. They also argue that the pat-down searches performed on them exceeded constitutional bounds and that the warrantless search of their motel room transgressed s. 8 of the Charter. They seek the exclusion from evidence of the crack cocaine seized from their motel room and from Mr. Moulton at the time of his arrest.
[3] The Crown responds that there were no Charter breaches and even if there were, they were largely inconsequential in nature. Moreover, the Crown argues that the accused do not have standing to assert a s. 8 privacy interest in the room where the crack cocaine was located. If I find a breach or breaches, the Crown argues that the evidence should not be excluded because its admission will not bring the administration of justice into disrepute.
[4] I find that the accused were arbitrarily detained. Given they were detained, they should have been informed of the reasons for their detention and given the right to counsel. Moreover, the pat-down searches were done without sufficient grounds to justify them. As such, their ss. 8, 9, 10(a) and (b) Charter rights were breached. With respect to the motel room, while I accept the Crown position as a compelling one in theory, the Crown’s s. 8 standing argument is rooted in statements and actions of the accused while they were arbitrarily detained and without the right to counsel. These statements and actions cannot now be used to advance a standing argument.
[5] Having regard to the number of constitutional breaches involved, and bearing in mind all of the circumstances, it would bring the administration of justice into disrepute to admit the evidence taken from the motel room and from the search of Mr. Moulton following his arrest. The evidence is excluded.
The Facts
The police arrive at the Motel 6
[6] On March 22, 2013, just before 10 p.m., two Peel Regional Police Constables, Officers Brabant and Holder, arrived at the Motel 6. Constable Brabant testified that he was in uniform. The officers were engaged in the Strategic and Targeted Enforcement Program, (“S.T.E.P.”). Officers assigned to this duty focus on areas that have been identified as problematic for drugs, prostitution and gang activity. According to the officers, the Motel 6 is one such location. Officer Brabant estimated he had been there on at least 40 prior occasions. He said that he knew through crime analysis, and his own experience, that the Motel 6 had a particularly high level of prostitution and drug activity.
[7] Upon arrival at the motel, the officers attended at the reception area and spoke with an employee. Nothing of concern was reported. Like on previous occasions when they had attended at this location, they were provided with a guest register, including the names of those staying at the motel, and which rooms they were connected to. The motel has a trespass notice that requires people who are not registered as guests to leave the premises by 10:00 p.m.
[8] Officer Brabant was asked what his intention was in attending at the Motel 6 the evening of March 22nd. He said that, given the motel is so well known for drug and prostitution offences and for harbouring people who are wanted by the police, as well as the fact that the motel has a trespass notice after 10 p.m., he was there to “investigate” people for “those types of offences”.
The loud music
[9] The officers walked the floors of the motel and eventually worked their way up to the third floor where they heard loud music coming from a room. They dealt with the occupant of the room and asked that he turn the music down. They asked for his name and date of birth and had a CPIC check run over the police radio. When asked why they did that, Officer Holder said it was because they typically want to know who they are interacting with and to gather intelligence in the context of their S.T.E.P. activities. He also testified that checking identity allows the police to ensure that a person is not breaching any conditions that he or she may be bound by.
[10] While dealing with this man, both officers made observations of two men further down the hallway, toward the elevators that were in an alcove area. Officer Brabant said that it looked like the men came in and out of a room, or peeked their heads in and out of a room, on several occasions. Officer Holder saw them go to and from the alcove area on three to four occasions. He testified that he did not see the men interact with anyone.
[11] Both officers testified that the men’s behaviour seemed suspicious and odd, but nothing more. Officer Brabant quite fairly acknowledged that while it seemed somewhat suspicious that the men looked in the direction of the police on more than one occasion, he drew no conclusions and knew that it may just have been two people interested in the fact that police were in the motel. In cross-examination, the officers agreed that their observations did not cause any concern sufficient to stop and inquire when they walked by the room. They heard no sounds or anything of concern coming from the room.
The initial interaction with Moulton and Allen
[12] After finishing with the man playing the music, the officers proceeded toward to the elevator alcove area. Brabant testified that he was intending to exit the hotel, while Holder testified that his intention was to continue with his foot patrol. They walked past room 324, which they associated with the men. Based on a sketch done by Officer Brabant, it appears that the elevators were four doors away from room 324.
[13] Both officers testified that while in, or almost in the area of the alcove, Mr. Moulton and Mr. Allen approached. The officers recognized them as the men they had seen associated with room 324. According to Brabant, the officers initially engaged them in what was described as generic conversation, including questions like, “hey fellas, how is it going tonight”, “staying at the hotel”, “why are you guys in the hotel”, “hey, what’s going on tonight”? Everyone was together during this initial conversation. Officer Brabant agreed with the suggestion that it was 10:05 p.m. when this initial interaction took place. I accept this time as the starting time for the police interaction with the accused.
[14] Both men appeared sweaty and nervous while chatting with the police during the initial encounter. Other than being sweaty and nervous, though, Brabant agreed that the answers to the questions asked did not seem suspicious at that point in time.
[15] Having regard to how both officers described the initial encounter with the accused in the elevator area, I find that the initial questioning was no more than one to two minutes in length.
Dealing with the accused separately
[16] Officer Brabant testified that shortly after they started asking the generic type questions, Officer Holder moved away with Mr. Allen. Officer Brabant stayed with Moulton. Officer Brabant acknowledged in cross-examination that his individual encounter with Mr. Moulton commenced with a pat-down search. He testified that Moulton seemed a “little nervous” and so he gave him a pat-down search for officer safety reasons. He qualified this later in his evidence by suggesting that Moulton was appearing nervous, stuttering with his answers and sweating a little bit. He acknowledged that Moulton was not fidgeting or doing anything with his hands or body that caused a concern.
[17] To the best of Officer Brabant’s recollection, Moulton had a jacket on and he frisked his jacket and waistband area because he was concerned for any weapons that he may possess. While he did not recall the exact areas checked, he said it would have been anywhere he could have had a weapon, such as “pockets” and “ankles”. Officer Brabant said that if there was a bulge in Moulton’s pockets, he would have patted his pockets, but he could not remember any bulges.
[18] While Officer Brabant could not remember any directions given to Moulton while the pat-down search was occurring, he fairly and readily acknowledged that he “typically” tells individuals not to put their hands in their pockets while they are being checked. I find that Moulton was patted down immediately after Officer Holder and Allen moved away. I also find that Officer Brabant would have followed his usual course and asked Moulton to keep his hands out of his pockets while he was being patted down.
[19] Officer Brabant specifically denied patting Moulton down for drugs. He testified that he was engaging in “an investigation through S.T.E.P. in terms of people staying at the hotel”, but not a direct investigation of Moulton for any “further purpose”. Officer Brabant expressed the view that an individual does not need to be detained in order to conduct a pat-down search. When asked what he understood to be his lawful authority to conduct the pat-down search, Officer Brabant testified that it is based on “common law that when I am dealing with a person, I can pat them down”. He disagreed with the suggestion that he needs a reasonable belief that there is an imminent danger to the police or public in order to conduct a pat-down search. He further testified that he thought Moulton may have weapons on him because he seemed nervous, he was stuttering, sweating and evasive with the answers he was providing.
[20] After he had completed the pat-down search, Brabant testified that he asked Moulton for his name and date of birth. Moulton provided the name of Cory Miller, a date of birth, and an address in Toronto that he could not remember in full. (This is the only answer given by Moulton that could be characterized as being evasive and it was given after the pat-down search had been performed.) A CPIC check was run on the name and it came back as having outstanding drug related charges, but there was no suggestion that “Miller” was breaching any conditions of release. When asked what he was doing in the motel, Moulton said he was visiting a friend and provided the name of Raeshan James.
[21] Officer Brabant denied that Moulton was detained and said that if he had decided to walk away while his name was being checked on CPIC, he would have had to let him go. When asked whether he would have let him go, Officer Brabant said that Moulton never tried to leave and he could not answer a theoretical question.
[22] In-chief, Officer Brabant testified that his initial interaction with Moulton, involving the pat-down search, name check on CPIC, and questions, lasted for about 10 minutes at the most, “not a long amount of time”. In cross-examination he scaled this back to about 5-minutes. Bearing in mind that the interaction commenced at 10:05 p.m. and the arrest was at 10:20 p.m., I find that the time between the initial encounter at the elevator, to the flight of Allen and Moulton, is much closer to, if not at, the 10-minute mark.
[23] As for Officer Holder, he dealt with Mr. Allen. According to Holder, he and Allen moved no more than 15 feet down the hallway, away from where Officer Brabant and Moulton were speaking. He denied the suggestion put to him in cross-examination that Allen was “pulled aside” to speak with privately. He testified that he simply said to Allen, “come with me for a second” or “let’s walk over here” or something to that effect.
[24] Officer Holder acknowledged that he wanted to be far enough away so that Allen would not be embarrassed if something came over the police radio about him that he did not wish his friend, Mr. Moulton, to hear. As such, he was offering Mr. Allen privacy from Mr. Moulton. I find that whatever the distance, 15 feet more or less, it was far enough apart that the two accused could not overhear one another. I accept Officer Holder’s evidence in terms of what he likely said to Allen.
[25] Allen was asked for and provided his correct name and date of birth. According to Officer Holder, he asked for this information at the outset of his individualized interaction with Allen. Officer Holder used his police radio to have the name checked over CPIC and it came back as 10-60, meaning all clear. Nonetheless, Holder testified that Allen was behaving nervously, sweating and speaking softly. Holder asked Allen why he was at the motel that night and whether he was registered to a room. Allen told Officer Holder that he was visiting a friend in the motel, but did not know his friend’s name. On this basis, Officer Holder found Allen to be evasive.
[26] Officer Holder denied the suggestion put to him in cross-examination that he was investigating Allen for “lawless behaviour, weapons and drugs”. He said that he ran his name on CPIC because he wanted to keep track of who he had spoken with that evening and because of the nature of the Motel 6 and the number of complaints received. He said that the conversation with Allen, and the CPIC check over the radio, took a couple of minutes. I find that given the real-time unfolding of events that evening, while it may well have felt like a couple of minutes to Officer Holder, bearing in mind the time noted above for the commencement of the interaction with Allen and Moulton and the time of arrest, the interaction was closer to the 10-minute mark.
[27] As for the pat-down search, Officer Holder testified in-chief that Mr. Allen was not patted down. In cross-examination he acknowledged that he may have conducted a pat-down search and, if this happened, it would have been only for officer and public safety reasons. Closer to the end of the cross-examination, Officer Holder testified that he conducts pat-downs where he is concerned for officer or public safety. He said that as the interaction with Allen evolved, Allen was showing signs of nervousness, including being sweaty and quiet speaking, as well as “taking no ownership or saying he was coming from that room”. This behaviour raised Holder’s “suspicion” and a concern for his safety. He testified that this is likely when he gave Allen the pat-down search.
[28] Asked whether it was his perception that there was an imminent threat to officer and public safety because Allen seemed sweaty and nervous, he confirmed that was his perception. Bearing in mind the totality of his evidence on this point, including his assessment that Allen constituted a threat to officer and public safety, I find that Allen was in fact patted down and that the pat-down search occurred after Mr. Allen provided answers to Constable Holder about why he was at the motel.
The key on the floor and opening the door to room 324
[29] While Mr. Moulton’s identification was being checked on CPIC, Officer Brabant noticed him move a couple of feet toward the elevator. He dropped a room key card on the floor. The officer asked him what it was and Moulton said “nothing”. Officer Brabant denied a suggestion put to him in cross-examination that he had removed the card key from Moulton’s pocket.
[30] I find Officer Brabant’s challenged, but uncontradicted, evidence on this point to be credible. I find that Moulton dropped the key and that Brabant made this observation. I also find that Moulton answered “nothing” to Officer Brabant’s question about the key. After noticing the card key and asking about it, Brabant noticed that Moulton’s demeanour increased in nervousness. He started stuttering his words and sweated “a lot”. When Officer Brabant picked the key up, he acknowledged that he “likely asked” whose key card it was, to which Moulton responded that it belonged to Raeshan James. Brabant testified that he then put the key into his own pocket.
[31] Officer Brabant agreed that because of all of the circumstances, including seeing Moulton leave room 324 and drop the key card, he assumed that the room belonged to Moulton. He agreed that this is why he ultimately provided the key to Officer Holder.
[32] Both officers testified that, owing to Moulton and Allen behaving so nervously, and bearing in mind the kind of drug and prostitution activity that takes place in the Motel 6, they became concerned about prostitution and the safety of the occupants of the room. Holder’s “specific concern” in entering the room was public safety. He testified that he entered to ensure the occupants of the room were in good health and that their safety was looked after. He felt that life could be in danger and he would have been negligent not to enter the room. Officer Brabant testified that he wanted to check on the “well-being” of the occupants of the room because of the initial suspicious activity, the nervousness and sweating, and the “ditching” of the room key. Both officers agreed that based on all of the information that the police had available to them at the time the room was entered, they would not have had sufficient grounds to obtain a search warrant.
[33] In cross-examination, Officer Holder expanded and testified that he also understood the threshold for privacy in a hotel room to be low. He said that neither individual was taking ownership of room 324 and that the key card had been discarded. In Holder’s view, neither accused had a reasonable expectation of privacy in the room at the time it was opened.
[34] Holder knocked and no one answered the door. He testified that his concern for public safety increased when no one answered the door. He called “police” two to four times and then used the key to open the door.
[35] While Officer Holder attended at the room, Officer Brabant thought that he may have been asking Allen and Moulton about what was “going on in the room” and why they wanted to get rid of the key card. In cross-examination, he suggested that he might have asked about whether there was anything illegal in the room. They said it was not their room and, if there was anything in there, it did not belong to them.
[36] The room was well lit and the television was on. From the doorway, Officer Holder could see what he believed to be things indicative of drug trafficking, such as a scale, some plastic wrapping and a beige rock like substance that looked like crack cocaine. A picture of the room was filed as an exhibit, and it shows that the location of the items on the desk in this small room would have been visible from the doorway. Officer Holder never breached the threshold. Later that evening he looked at the room register that he had been given when the officers entered the Motel 6 and discovered that the room was registered to a “Fitzroy Nugent”.
[37] Officer Holder told Officer Brabant that the accused were arrestable for drugs. Almost simultaneously with this occurring, both accused ran.
The chase, assault and arrest
[38] Mr. Allen ran down the hallway past Officer Holder. Brabant took pursuit and caught up with Allen before he reached the end of the hallway. He grabbed Mr. Allen by the right shoulder and swung him around, at which point Allen punched Brabant twice in the face. The officer punched him back, also in the face. They each exchanged a number of blows and were down to the floor a few times. At one point in the struggle, when Brabant was face down on the floor, Allen got onto his back and started to strangle him. During the entire struggle, Officer Brabant was yelling “police, you are under arrest, stop resisting”.
[39] Officer Brabant testified that he managed to get his hands up under Allen’s hands, just enough to keep the pressure off of his neck so that he did not pass out, although he was starting to see stars and feared for his life. He was in a chokehold for thirty seconds to a minute before he was able to pry it off of his neck. In cross-examination he testified that at one point he felt that Allen was attempting to get at his weapon. While he did not have an opportunity to do so, he contemplated going for his gun and shooting him because he thought that “he may die there”.
[40] Officer Brabant’s radio fell out and was on the floor. He managed to get to the radio and say “help” or something to that effect. Officer Brabant also implored a woman who had emerged from a room with only her bra and underwear on, and who appeared to be filming the incident, to get him help. According to Brabant, she did not seem interested in helping him.
[41] Officer Holder, who had taken pursuit down the stairs after Moulton, heard Brabant’s call for “help”. Holder ran back up to provide Brabant with assistance. He said that it took less than a minute to get back up to Holder from the time he heard Brabant’s cry for help. When he arrived he found the scantily clad woman behaving in a rather hysterical fashion. She was, indeed, filming the incident. He also found Brabant lying on top of Allen. He assisted in getting Allen cuffed.
[42] At that point, Officer Brabant testified that there were a number of people in the hallway and he was attempting to get some privacy. Allen was taken to room 324 and placed in a chair. During the struggle Allen was advised he was under arrest. At 10:20 p.m., once in the room, Allen was cautioned and given his right to counsel.
[43] After Allen was removed from the room, Officer Brabant took photos and seized the items that are the subject of this voir dire. No warrant was ever obtained. Among other things, a grinder, scale and crack cocaine were seized. Moulton’s identification was on the desk, close to where the drugs were located. Two bags of drugs were later weighed at 9.65 grams and 4.45 grams. Both bags were on the desk. A canine unit located Mr. Moulton. He was found to have 5.05 grams of crack cocaine on his person.
[44] Allen was taken to the hospital. Pictures of his face were filed as an exhibit on the voir dire. He had a swollen face, bloody lips, and a bump on his forehead (which appears bandaged in the exhibit). According to Officer Brabant, he also attended at the hospital with a minor swelling to the right side of his face, a sore jaw, and cut to his right middle finger. He testified that he was given medical advice about the wisdom of taking drugs owing to the potential exchange of blood and made a decision not to take the medication. Officer Holder testified that Officer Brabant was advised that he did not require medical attention.
The Accused
[45] Neither accused testified in this voir dire.
The Positions of the Parties
[46] The defence maintain that the accused were arbitrarily detained. Mr. Moulton argues that his detention commenced at the time he was patted down, while Mr. Allen argues that his detention commenced at the very outset of the interaction between the police and accused. As they were detained, they say that they should have been promptly informed of the reason for their detention and given their right to counsel. They also argue that the pat-down searches were done without lawful authority, suggesting that the police fell short of the constitutional standard to conduct a pat-down search. As they characterize it, the fact that the accused may have appeared sweaty and nervous did not justify this exercise of police power.
[47] They also argue that the entry into room 324 was a warrantless search of an area over which they enjoyed a reasonable expectation of privacy. They argue that hotel rooms are s. 8 protected zones and the police need a warrant to enter. The fact that a key card is on the ground, or has even been abandoned, should not grant the police a licence to search a hotel room. Nor should statements made by an accused who is arbitrarily detained, and who has not been advised of the right to counsel, be used to support a Crown position that the accused have no standing to raise a s.8 complaint with respect to searching their motel room.
[48] They maintain that the statements they made to the police, used by the Crown to support its standing argument, are also involuntary. They argue that the fact of a ss. 10(a) and (b) breach automatically results in their involuntariness, as does the fact that there is no accurate record of what the accused said to the police.
[49] Under s. 24(2), the defence argue that the crack cocaine and statements should be excluded because the police acted with a wilful disregard for their Charter rights. They were serious breaches and the admission of this evidence would be interpreted as the Court approving of such serious state misconduct.
[50] The Crown argues that there was no detention prior to the formation of reasonable and probable grounds to arrest the accused. Despite the absence of an investigative detention, and having regard to the totality of circumstances, the pat-down searches done on the accused met all appropriate constitutional standards. Even if the pat-down searches resulted in s.8 breaches, no evidence was derived from these searches and so any breach should be considered inconsequential in nature. The Crown also maintains that pat-down searches are inherently fleeting in nature and do not, in and of themselves, trigger a detention. As there was no detention prior to the formation of grounds to arrest, there was no obligation to administer the ss. 10(a) and (b) rights.
[51] As for the s.8 argument pertaining to room 324, the Crown position is that the accused have no standing to assert a privacy interest. Out of their own mouths, and through their own actions, they distanced themselves from room 324 and lost any expectation of privacy they may otherwise have had in that location. The Crown position is that the statements made by the accused were entirely voluntary and that the inability of the police to recount with precise detail what was said by the accused should not cause a concern about voluntariness. As the statements are voluntary and s. 10(a) and (b) compliant, they can and should be used to assess whether the accused have standing to assert a s. 8 complaint in respect to room 324.
[52] If any breaches are found, the Crown says that I should not exclude the evidence under s. 24(2). If the police are over the line, they are barely so, and they were acting in good faith throughout. While a motel room is an environment over which s. 8 affords a privacy interest, it holds a lesser privacy interest than a home. The crack cocaine is reliable evidence and its exclusion will end this serious prosecution. This result will bring the administration of justice into disrepute.
Onus, Burden of Proof, and the Blended Voir Dire
[53] The Crown bears the onus on the voluntariness issue and must prove it beyond a reasonable doubt: R v Singh, 2007 SCC 48 at para 25. While the accused bear the onus of establishing standing to raise a s. 8 issue, assuming the accused succeed in doing so, warrantless searches are presumptively unreasonable and, as such, the onus shifts to the Crown to establish three things on a balance of probabilities: (1) the search was authorized by law; (2) the law was reasonable; and (3) the manner of search was reasonable: R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128 at para 45; R v Nesbeth, 2008 ONCA 579 at para 21; R v Kang-Brown, 2008 SCC 18 at para 59; R v Nolet, 2010 SCC 24 at para 21; R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265 at para 34.
[54] The accused bear the onus on the ss. 9, 10(a) and (b) issues: R v Suberu, 2009 SCC 33 at para 28. Their obligation is to establish Charter breaches in these areas on a balance of probabilities: R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51 at para 11. As it relates to s. 24(2), in order to achieve exclusion of evidence, the accused bear the onus of establishing, again on a balance of probabilities, that admitting the evidence would bring the administration of justice into disrepute: R v Harper, 1994 CanLII 68 (SCC), [1994] 3 SCR 343 at para 16; Collins at paras 32-3; R v Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173 at paras 50-51.
Analysis
[55] There are seven issues to be decided on this voir dire. I deal with them in the following order: (1) was there a detention; (2) if there was a detention, was it arbitrary; (3) was there a breach of ss. 10(a) and (b) of the Charter; (4) were the statements voluntary; (5) were the pat-down searches constitutionally compliant; (6) do the accused have standing to assert a s. 8 claim with respect to the hotel room; and (7) if there were any breaches, should the impugned evidence be excluded under s. 24(2) of the Charter?
Were the accused detained?
The law surrounding detention
[56] The first legal question to be answered in this matter is whether the accused were detained within the meaning of ss. 9 and 10 of the Charter. This involves exploring whether their liberty interests were “meaningfully constrained” by the police during the interaction at the Motel 6 prior to their arrest: R v Grant, 2009 SCC 32 at para 26. The term “meaningfully constrained” is intended to emphasize the fact that not every police-citizen interaction involves a detention for Charter purposes. The police can delay a person, and even keep them waiting, without triggering a “detention”. Iacobucci J. observed in R v Mann, 2004 SCC 52 at para 19:
The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by sections 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.
[57] This passage was picked up on in Grant, where the majority reinforced the fact that ss. 9 and 10 are not intended to protect against trivial and insignificant interferences with liberty interests: Grant at para 26. In Suberu at para 3, the Supreme Court again placed emphasis on the fact that only “significant” interferences with liberty are cloaked in Charter protection. Were it otherwise, the police could become paralysed in their ability to interact with people, an activity that is central to effective police work, including keeping the peace, detecting and preventing crime.
[58] Community policing in particular would be harmed if the line for detention could be too easily crossed. As noted in Grant, “general inquiries by a patrolling officer present no threat to freedom of choice” and should not be susceptible to characterization as a “detention”: at para 41. As such, the court must proceed with caution and stay true to the guidelines set out in Grant for determining when a police-citizen interaction moves from a simple encounter, where the citizen may be permissibly delayed, to a detention within the meaning of ss. 9 and 10 of the Charter.
[59] In determining whether this line has been crossed, both physical and psychological detentions must be considered. A physical detention exists where the individual is physically constrained, the classic situation being an individual who is handcuffed or placed in the back of a police cruiser. A psychological detention arises when there is a legal obligation to comply with a police request or demand, or where a reasonable person in the individual’s position would conclude that “he or she is not free to choose to walk away or decline to answer questions”: Grant at para 41.
[60] Where there is no physical constraint placed on the individual, and no legal obligation to comply with a police direction, the test for detention is an objective one. The court must look to various factors to determine whether a reasonable person in the individual’s situation – bearing in mind the totality of circumstances – would conclude that he or she could not walk away. The following non-exhaustive list of factors from Grant can be taken into account in determining whether the individual was psychologically detained:
a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication: [at para 44].
[61] Owing to the fact that the test is an objective one, it is unnecessary for an accused to testify in order to establish a psychological detention: Grant at para 50. As such, while it may be helpful to hear from an accused respecting his or her perceptions about the situation, a failure to testify is not fatal to a s. 9 psychological detention argument.
Applying the law of detention to the facts
[62] Would a reasonable person in the position of the accused in this case have perceived that they had no choice but to stay and interact with the police? I conclude that the answer to this question is yes.
[63] The interaction between the officers and accused commenced at the elevator and in a casual way. There is nothing about the initial questioning by the police that suggests the accused were detained and no reasonable person would have perceived it that way. Asking them about what was going on, whether they were staying in the hotel, and what they were doing that night were non-threatening questions and ones that are normal in the context of good community policing.
[64] The difficulty for the Crown’s argument, though, is that things quickly evolved from there. Shortly after that initial questioning, which I have found to be no longer than one to two minutes in length, Moulton and Allen were separated by about fifteen feet. While I accept Officer Holder’s evidence that he did not demand Mr. Allen follow him, to use Officer Holder’s words, he was told something to the effect of “come with me for a second” or “let’s walk over here”. While not a direct order to go with the officer, it is a simple fact that Mr. Allen was not asked if he would go with the officer. He was told to do that.
[65] Regardless of whether Allen felt he could say no, and stand his ground, the fact is that the accused became physically separated by about fifteen feet. While there was nothing sinister about moving 15-feet away, it was done to ensure that the accused could not overhear the police radio communications related to the other. As such, they could not overhear one another’s communications with the officers. Being dealt with individually, and unable to hear what the other was saying, would give the distinct impression that the police were interested in more than simply how they were doing that night and what was going on. The separation in space would have brought home to them that the generic, simple chat at the outset was evolving to something more. While I do not find that this separation after the initial few minutes triggered a psychological detention, it informs the totality of factors that must be taken into account.
[66] After Officer Holder and Mr. Allen moved away, both accused were asked for their names, dates of birth, and home addresses. The information they provided was checked over police radio and in their presence. As in R v L(B), 2007 ONCA 596 at para 67 (a pre-Grant authority), I accept that the obtaining of a name and address, on its own, will not necessarily result in a psychological detention. Unlike this case, in L(B) there was no evidence that the accused knew that his information was being run on CPIC. Even so, I accept that running a name on CPIC, even in the presence of an accused, will not necessarily result in a psychological detention.
[67] It is a factor to be taken into account, though, in determining whether a psychological detention took shape. It is not simply an officer asking for a name. It is an officer asking for a name and other identifying information and then having it checked against broader police databases while in front of the individual. A reasonable individual in these circumstances may think they were being checked out and, while those checks were being completed, they could not walk away. While not dispositive of a psychological detention, it is another factor to take into account in the totality of circumstances.
[68] In addition, the police questioning evolved from a general inquiry into how the accused were doing, to questioning them about who they were visiting at the motel. Officer Brabant specifically inquired of Mr. Moulton why he wanted to distance himself from the key card that was dropped during their interaction. Ultimately, before room 324 was opened by Officer Holder, Officer Brabant asked the accused whether there was anything illegal in the room that the police should know about before it was opened.
[69] I find that the police questioning evolved from general in nature, to focussed questioning designed to obtain statements about room 324. This would have left the accused with the impression that they were being singled out for investigation. It is reminiscent of the questioning in Grant, which evolved from general questions, to obtaining Mr. Grant’s identity, to asking him if he “had anything that he shouldn’t”: at para 49. It is at that point that Charron J concluded that: “the encounter took on the character of an interrogation, going from general neighbourhood policing to a situation where the police had effectively taken control over the appellant and were attempting to elicit incriminating information”. The increasingly focussed questioning, particularly after Mr. Moulton dropped the key card, is a factor that I take into account as part of the circumstances informing whether the accused were psychologically detained.
[70] Moreover, the interaction with the police went on for about 10-minutes in length. This cannot be described as a fleeting period of time. As they were likely together for one to two minutes at the outset, their time separate and apart closed in on the 8-minute mark. This is a substantial period of time. Again, while a total 10-minute interaction with the police will not necessarily result in a psychological detention, this encounter cannot be described as brief. This is another factor for consideration when assessing whether a reasonable person in the circumstances would have considered that he or she had a choice to walk away.
[71] Importantly, the pat-down searches also inform the detention analysis. Officer Brabant candidly admitted that at the outset of his individualized interaction with Moulton, he patted him down. Allen was also patted down, albeit later into his interaction with Officer Holder. Leaving aside for a moment whether the pat-downs of Moulton and Allen were constitutionally compliant, I find that, in the circumstances of this case, they constitute a strong factor for consideration in determining whether the accused were detained.
[72] I note at the outset that it is more than a little unusual to see a case where the police pat-down an individual for officer and public safety reasons in circumstances where they deny that the individual was under investigative detention, and where they agree that they had no grounds to detain the individual. While my reasons should not be construed as suggesting that this cannot occur, I note that the law surrounding pat-down searches is largely located in the investigative detention and arrest authorities.
[73] Quite simply, it defies reason that an individual who is being patted down by the police, because of a concern over safety, can simply walk away while the pat-down search is occurring. This would be entirely inconsistent with a concern for safety. I find that, at a minimum, a person being patted down is physically detained for at least the duration of the pat-down search. As for a psychological detention after the pat-down search is over, I find that the search is another strong factor to consider on the objective test as to whether a reasonable person would think he or she could walk away.
[74] The Crown appropriately cautions that the mere touching of an individual during an interaction with the police will not necessarily trigger a detention. The Crown relies upon Grant at para 42 for this proposition:
Consider the act of a police officer placing his or her hand on an individual’s arm. If sustained, it might well lead a reasonable person to conclude that his or her freedom to choose whether to cooperate or not has been removed. On the other hand, a fleeting touch may not, depending on the circumstances, give rise to a reasonable conclusion that one’s liberty has been curtailed.
[75] The Crown likens a pat-down search to a fleeting touch. While I accept L’Heureux-Dubé J’s comments in Cloutier v Langlois, 1990 CanLII 122 (SCC), [1990] 1 SCR 158 at para 59 that pat-down searches are a “relatively non-intrusive procedure”, and may only take a few seconds to execute, this type of search is not properly characterized as a “fleeting touch”, at least within the meaning of the Grant passage above.
[76] While pat-down searches may be quick and involve a touching over the clothes, they are properly characterized as a search, which is why a threshold test must be met before the police can conduct them: Mann at paras 42-43, 45; R v MacDonald, 2014 SCC 3 at paras 41-4. Mr. Moulton and Mr. Allen were not simply “touched” in the hallway, they were searched and, in the case of Mr. Moulton, he was searched by having his body, over his clothing, patted down at the outset of the individual interaction with Officer Brabant. A pat-down search sends a number of messages, including that the police are empowered to touch the individual against his or her will and search, over the clothing, for weapons. The individual is under police control when the pat-down search is occurring and, while I would not suggest that a pat-down necessarily gives rise to a psychological detention after its conclusion, it is an important factor pointing toward this condition.
[77] While the Crown argued that the fact the accused ran away after the room had been entered is evidence that they did not feel detained, he acknowledged that flight can also constitute evidence that the accused felt detained and had no choice but to run. In this case, I find that the flight after the motel room was entered points toward a pre-existing psychological detention. If the accused thought they could walk away, they would have done it before the inevitable grounds for their arrest formed upon entry to the motel room. Their flight in the wake of that occurring demonstrates that until that moment, they did not think they could simply walk away from the encounter.
[78] In all of the circumstances, with a particular focus on the length of the interaction with the police, the increasingly focussed questions about why they were in the motel and who they were visiting, and who room 324 was associated to, as well as the pat-down searches, the CPIC checks, and the placing of distance between the accused so that they could not hear one another, I find that a reasonable person in these circumstances would conclude that they had no choice but to stay and interact with the police. The accused were psychologically detained.
Were the accused arbitrarily detained?
The law surrounding the meaning of “arbitrary”
[79] Both officers testified that the accused were not detained and agreed that they did not have grounds to detain them. The Crown did not suggest otherwise. I agree that there were no grounds to detain the accused. For purposes of s. 24(2), what follows is a brief analysis for why I express my agreement with this position.
[80] The police can only detain an individual for investigation where, based on the totality of circumstances, it is necessary because the officer reasonably suspects that there is a “clear nexus between the individual to be detained and a recent or on-going criminal offence”: Mann at paras 34, 27; R v Simpson (1993), 1993 CanLII 3379 (ON CA), 12 OR (3d) 182 (CA) at p 200. This means that the officer must suspect that the requisite grounds for an investigative detention have been met and the suspicion must be objectively reasonable in the circumstances: R v Mann at para 27.
[81] As Binnie J observed in Kang-Brown at para 75, suspicion involves a reasonable expectation that the “targeted individual is possibly engaged in some criminal activity”. It means more than “mere suspicion”. A sincerely held subjective belief on the part of a police officer will not support a “reasonable suspicion”. What is required are objectively discernible facts upon which the suspicion that the individual has been or is engaged in crime rests: Simpson at p 202; Kang-Brown at paras 60, 75-7; R v Chehil, 2013 SCC 49 at paras 22-7. Thus, while it is a lower threshold than reasonable grounds to believe, and can be summarized as a “reasonable possibility”, it must be supported by objectively discernable facts: Chehil at paras 27-8.
Applying the law of “arbitrary detention” to the facts
[82] All the police knew was that Moulton and Allen had come and gone from a motel room, or poked their heads in and out a few times. Officer Brabant fairly acknowledged that these actions might have been indicative of nothing more than two people interested in why the police were in the motel. Indeed, the actions were of so little moment that the officers had decided to leave the motel without checking on room 324.
[83] At the elevator, and while they were all still together, the accused appeared sweaty and nervous, a reaction that could mean a host of things, not the least of which is that the individual does not wish to be interacting with the police. Other than that, there was little to go on at the time that the accused were separated.
[84] Moulton was patted down with only this information available. At this point, there were simply no objectively discernible facts that would support a reasonable suspicion that either Moulton or Allen had been or were engaged in crime. The only additional facts that arose related to Moulton forgetting his full residential address and Allen forgetting his friend’s name. There was no crime reported and none being investigated. While their behaviour might have struck the officers as odd, it was nothing more than that and they were right to conclude that there were no grounds to detain the men for investigation or otherwise.
[85] Thus, I find that the accused were arbitrarily detained and that their s. 9 rights were breached.
Was there a breach of ss. 10(a) and (b) of the Charter?
The law of ss. 10(a) and (b) in the context of a detention
[86] In Suberu, the Court determined that once detained, barring exigent circumstances, an individual must be afforded their ss. 10(a) and (b) rights. Upon detention, s. 10(a) requires that the state promptly inform an individual of the reason for their detention and s. 10(b) requires that the individual be granted the right to counsel without delay.
[87] The right to counsel contains both an informational and implementational component, meaning that it is not good enough to simply tell a person that he or she has the right to counsel. If the person wishes to avail him or herself of counsel, it must be facilitated before information is elicited from the person. This all assumes the absence of exigent circumstances.
[88] The “without delay” component of s. 10(b) has been interpreted as being synonymous with “immediately”, which accords with a purposive approach to the Charter right. When detained, a person is in great legal jeopardy and the right to counsel can assist with regaining their liberty and ensuring that they do not compromise themselves by making statements to the police that they may not make with the benefit of legal advice. As noted by Charron J and McLachlin CJ in Suberu: “If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises”: at para 41; see also R v Willier, 2010 SCC 37 at paras 29-31.
Applying the facts to the law
[89] As both Moulton and Allen were detained, they should have been informed of the reason for their detention and granted the right to counsel without delay. Neither of these constitutional rights were afforded to the accused. I find that both ss. 10(a) and (b) of the Charter were breached.
Were the statements voluntary?
[90] In addition to arguing that their ss. 10(a) and (b) rights were breached, the accused maintain that the statements they made to the officers in the hallway, before room 324 was entered, were involuntary. Their voluntariness argument is inextricably linked to their ss. 10(a) and (b) argument. As I understand it, they argue that Singh stands for the proposition that a failure to provide the right to counsel necessarily renders a statement involuntary. This is not the law.
[91] The common law voluntariness rule is well known and easily applied. It focuses on whether, through promises, threats or inducements, the individual’s will to remain silent is overborne: R v Oickle, 2000 SCC 38 at paras 57. The voluntariness doctrine also concerns itself with whether the individual has an operating mind and whether police oppression has been used in obtaining a statement. Finally, the doctrine looks into whether police trickery has been used to obtain a confession in a manner that would shock the conscience of the community: Oickle at paras 24-27, 47, 54, 57-8, 63, 66.
[92] In this case, the accused have alleged nothing by way of threats, promises, inducements, or police oppression. They have not suggested that they were lacking in operating minds and have alleged no police trickery. Instead, the accused say that the statements are involuntary because their s. 10 rights were infringed and that Singh says that this will invariably result in a finding of involuntariness.
[93] The symmetry between the common law voluntariness rule and Charter rights discussed in Singh relates to the intersection between the right to silence and voluntariness. There is a broad residual right to silence under s. 7 of the Charter. It arises from the principle against self-incrimination and is considered a general organizing principle of the criminal law: R v Jones, 1994 CanLII 85 (SCC), [1994] 2 SCR 229 at para 33; R v White, 1999 CanLII 689 (SCC), [1999] 2 SCR 417 at para 44. It subsumes a number of other more specific rights that have their foundation in the principle against self-incrimination: the right to counsel in s. 10(b); the right not to be compelled in s. 11(c); and the right to be protected against the use of prior compelled evidence in s. 13: White at para 44; Singh at para 21.
[94] While a symbiotic relationship between the voluntariness doctrine and the s. 7 right to silence arose out of Singh, the same cannot be said of the relationship between the voluntariness doctrine and the other more specific rights, like the right to counsel. While also found under the principle against self-incrimination, these more specific rights are only considerations to take into account when determining voluntariness. In this regard, it is interesting to contrast Singh (a s.7 right to silence case) with R v Sinclair, 2010 SCC 35 (a s. 10(b) right to counsel case). In Singh, Charron J held at para 37:
A finding of voluntariness will therefore be determinative of the s. 7 issue. In other words, if the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of a Charter violation of the right to silence in respect of the same statement. The converse holds true as well. If the circumstances are such that an accused is able to show on a balance of probabilities a breach of his or her right to silence, the Crown will not be in a position to meet the voluntariness test.
In Sinclair, McLachlin CJ and Charron J held at para 29:
The s. 10(b) right to consult and retain counsel and to be advised of that right supports the broader s. 7 right to silence. However, it is not to be confused with the right to silence. … The fact that the police complied with s. 10(b) does not mean that a statement is voluntary under the confessions rule. Conversely, the fact that a statement is made voluntarily does not rule out breach of s. 10(b). It follows that Singh, which was concerned with the s. 7 right to silence, does not resolve the issue on this appeal.
[95] While the right to counsel, and whether it was exercised, is an aspect of the factual inquiry into whether one’s statement is voluntary, in the sense that an opportunity to consult with counsel will provide some objective markers as to whether one’s will has been overborne by threats, promises, inducements and so on, unlike the right to silence, it is not dispositive of the question.
[96] In this case, there are simply no inducements, promises, or threats alleged. There is no factual support for any police impropriety that would raise any doubt about voluntariness. Moreover, I reject the defence argument, based on R v Menzes, 2001 CanLII 28426 (ON SC), [2001] OJ No 3758 (Sup Ct) that the failure of the police to be able to recount with precision the exact questions asked and statements made by the accused, during their interaction, should render the statements involuntary. I find that the officers testified in a way that allows for an objective assessment of all of the relevant factors when it comes to voluntariness. There is nothing about the general nature of the comments made that compromises the ability to determine voluntariness.
[97] I find that the Crown established voluntariness beyond a reasonable doubt and the fact of a s. 10(b) breach does not shake that finding.
Were the pat-down searches section 8 compliant?
The law on pat-down searches
[98] Both the accused and Crown agree that the threshold test for a pat-down search for safety purposes is reasonable grounds to believe that officer or public safety is at risk. The defence focus on the majority judgment in MacDonald where LeBel J held that the test is one of “reasonable grounds to believe that there is an imminent threat” to officer or public such that it is reasonably necessary to conduct a pat-down search: para 43. The Crown says that I should rely upon Mann where the Crown says that Iacobucci J held that the test is one of “reasonable grounds to believe” that safety is at risk and the pat-down search is “reasonably necessary in light of the totality of the circumstances”: para 40.
[99] Since MacDonald was decided, there has been some discussion about whether the police should be held to a mere suspicion standard – as opposed to belief – in the context of safety searches during investigative detentions: R v Peterkin, 2015 ONCA 8. The matter was recently left open in the Peterkin case. While an interesting debate, and one that will no doubt garner further attention, the issue does not arise in this case because all counsel agreed that it is a reasonable grounds to believe standard. Moreover, whatever the standard, it was not met in this case.
The law of pat-down searches applied to the facts
[100] Officer Brabant testified as to his view that he can pat-down anyone he is dealing with and rejected the notion that he had to be concerned about an imminent risk to his safety. At no time in his evidence did he suggest that he rose to this level of concern or, indeed, that he even had reasonable grounds to suspect that his safety was at risk. This is equally true of Officer Holder. He did not suggest that he had reasonable grounds to believe that his safety was at risk. While both officers said that they patted down for officer safety reasons, they were unable to articulate objectively reasonable facts that would support a concern for their safety sufficient to rise to a belief or suspicion threshold.
[101] While they were in an environment known for drug trafficking and prostitution, there was nothing described in the encounter between the accused and officers that would justify a pat-down search. If coming and going from a motel room and being nervous and sweaty when dealing with the police could support a pat-down search, a lot of people would be patted down. This was all Officer Brabant had when he patted down Moulton. As for Officer Holder, he only had the additional fact that Allen could not remember the name of the friend he was visiting. In the other direction, though, Officer Holder had learned from the CPIC check that Allen was 10-60 or all clear.
[102] I would be remiss not to acknowledge the inherently difficult job that the police have. They work in oftentimes demanding, fluid and challenging circumstances. They have to make difficult calls on the spot and apply a sometimes complex web of legal concepts to their interactions with individuals. For this reason, it is important that they be provided with significant latitude in the execution of their duties so that they can, as noted in Mann at para 16, respond “quickly, effectively, and flexibly to the diversity of encounters experienced daily on the front lines of policing.” See also: R v White, 2007 ONCA 318 at para 54.
[103] It is critical that the law evolve in a way that is respectful of officer and public safety and that it carefully accommodates dynamic, real-time situations that only police officers, on the street, can really attest to. As Doherty JA noted in R v Golub, 1997 CanLII 6316 (ON CA), [1997] 102 OAC 176 at para 18, “[j]udicial reflection is not a luxury the officer can afford.” We must remain deeply aware of and respectful toward officer and public safety, including the need to provide officers with the tools necessary so that they can do their jobs, while keeping themselves safe.
[104] At the same time, though, a police officer’s powers cannot be unbridled. The Supreme Court has spent the better part of a decade developing rules that carefully strike a balance between the societal interest in granting law enforcement the tools necessary to investigate crime and the right to be free from state intrusion except where certain threshold tests have been made out. In this case, the officers did not have the grounds necessary to detain the accused and they did not have the grounds necessary to pat them down. I find that the pat-down searches breached the s. 8 rights of both the accused.
Do the accused have standing to assert a section 8 interest in the hotel room?
The law related to standing to assert a s. 8 claim
[105] Before an unreasonable search and seizure can be found, the court must be satisfied that the individual has standing to assert the claim. To determine standing, the court must inquire into whether the accused – not some other individual – had a reasonable expectation of privacy in respect to the location, thing or information searched. The classic criteria for consideration are set out in Edwards at para 45, and focus on the totality of circumstances: (i) the presence of the accused at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place searched; (iv) the historical use of the property or place; (v) ability to regulate access to the property or place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of that expectation. In order to determine a privacy interest, the totality of circumstances must be assessed: R v Tessling, 2004 SCC 67 at para 19; Edwards at para 45; R v Patrick, 2009 SCC 17 at paras 26-7.
[106] At the subjective stage of the test, the question is whether the individual had or, as Binnie J put it in Patrick, “is presumed to have had, an expectation of privacy”: at para 37. This is a low hurdle to get over and the individual need not testify in order to meet the test. The reasonableness of an individual’s belief that they had an expectation of privacy in a location, thing or information searched, is to be tested at the second stage of the standing analysis and not to be conflated with the subjective test: Patrick at para 37; Nolet at paras 30-1; R v Gomboc, 2010 SCC 55 at paras 24-7.
[107] A person may have a reasonable expectation of privacy in a hotel room. This is despite the fact that cleaning staff will enter the room at some point: R v Buhay, 2003 SCC 30 at para 22; R v Kenny, 1992 CanLII 7729 (ON CA), [1992] 52 OAC 70 at para 14. I did not hear the Crown dispute the fact that hotel rooms are privacy-protected zones. While the privacy in them may not rise to the level of a private home, s. 8 does cloak them in protection.
The law of standing applied to room 324
[108] While the accused did not testify, this is not fatal to their claim that they had a s. 8 protected privacy interest in room 324. Nor does the Crown seriously dispute this initial fact. After all, and bearing in mind the factors set out in Edwards, on the evidence of the police: (1) they were seen coming and going from the room on multiple occasions and or poking their heads out of the room; (2) no one else was seen emerging from or going into the room; (3) Moulton had the key card and was seen dropping it to the ground; (4) Moulton’s identification was located in the room; (5) Officer Brabant clearly testified that he thought the room belonged to Moulton; and (6) the police behaviour was consistent with their view that room 324 was assigned to Moulton and Allen, as evidenced by the entire interaction, but, most specifically, by Officer Brabant when he asked them whether there was anything illegal in the room. Against this factual matrix, I find that a subjective expectation of privacy can be presumed.
[109] The Crown acknowledges that while the accused may have had a s. 8 interest in room 324, by the time it was entered by the police, they had lost their standing in respect to that location. Relying upon both Nesbeth and L(B), the Crown says that by disavowing their relationship to the room, they lost all constitutional protection in it.
[110] L(B) was a young person who was observed by the police in front of a school. He had a knapsack when the police first laid eyes on him. A short time later, when the police came close to the front of the school, he approached them without his bag. When one of the officers located the bag where L(B) had abandoned it, he denied it was his bag. As noted by Moldaver JA, as he then was, having disclaimed a privacy interest in the bag, he was “effectively precluded … from relying on s. 8 of the Charter to impugn the lawfulness of [the police] search”: L(B) at para 71. See also: Nesbeth at para 23.
[111] The Crown argues that by distancing themselves from room 324 and discarding the key card, the accused are precluded from relying on s. 8 protection. This is an interesting and somewhat attractive standing argument, but it need not be decided in this case given that the information and actions relied upon by the Crown all arise in the context of an arbitrary detention and breach of the right to counsel. Having regard to the constitutionally infirm environment in which the key and statements were gathered, they cannot now be relied upon by the Crown to undermine the standing of Moulton and Allen to raise a s. 8 complaint. As emphasized in L(B), the comments made by the accused, relied upon in relation to the position on standing, were made in circumstances where he was not detained: at para 69. This is equally true of the actions relied upon for the standing argument in Nesbeth. This case is very different.
[112] As such, the accused have standing to assert a s. 8 claim over room 324.
Exigent Circumstances
[113] The Crown focussed on standing in respect to room 324 and did not argue that exigent circumstances justified entering the room. I make note of this fact because the officers both suggested that they searched the room because they were concerned about the health and safety of any people who may have been in the room. The only warrantless search power that could justify any such entry to room 324 would be the exigent circumstances doctrine.
[114] The Crown noted that s. 487.11 of the Criminal Code and s. 11(7) of the Controlled Drugs and Substances Act allow peace officers to enter locations where prior judicial authorization is required, but only where “by reason of exigent circumstances it would be impracticable to obtain” a warrant. Given that both officers acknowledged that they did not have sufficient grounds to obtain a search warrant, the Crown conceded that neither of these statutory provisions are available to justify the entry into, and search of, room 324.
[115] I agree with the Crown that the exigent circumstances doctrine cannot justify the search of room 324. While it is arguable that the common law doctrine related to searching in exigent circumstances offers a broader justification to search than the statutory ones, I am still of the view that no such circumstances were present here. In R v Godoy, 1999 CanLII 709 (SCC), [1999] 1 SCR 311, the court considered the ability of the police to enter a dwelling place without judicial authorization in the wake of a disconnected 911 call. Lamer CJ determined that in circumstances like these, the police should assume that the caller is in some distress and requires assistance and, as such, enter on a warrantless basis to provide any necessary assistance. The court did not expand on the threshold grounds for entry in these circumstances. Notably, this case was not about a disconnected 911 call and, in fact, there was no indication that anyone was even in room 324 when it was opened.
[116] In R v Kelsy, 2011 ONCA 605, Rosenberg JA held that there are two rationales supporting the exigent circumstances doctrine: (1) the protection of evidence; and (2) public or police safety. While the powers “appear somewhat vague”, reasonable grounds are a prerequisite to a valid search. When it comes to protection of the police and or public, it may be that a “lesser standard, such as articulable cause or reasonable suspicion … will be appropriate in some circumstances”: Kelsy at paras 24-34. See also: Golub at para 48; R v Wilhelm, 2014 ONSC 1637 at paras 114-25. Notably, s. 529.3(2) of the Code also allows officers to enter dwelling places to arrest, without a Feeney warrant, in exceptional circumstances, where there exist “reasonable grounds to suspect” that entry is necessary to prevent imminent bodily harm or death.
[117] The important point is that, when the police wish to avail themselves of this important warrantless search doctrine, they have to be able to articulate on the basis of objectively reasonable grounds the reason for entry to protect safety. Here, the police were unable to do this. They simply repeated that they were concerned about the safety of anyone who may have been in the room. They were unable to say why they were concerned, or why they suspected someone was even in the room, other than that the accused appeared to wish to distance themselves from the room. The police acknowledged that they heard no noises coming from the room and made no observations of the accused that suggested they had been involved in an altercation that would have left someone on the other side of the door to room 324 in difficult shape.
[118] Although for slightly expanded reasons, I agree with the Crown assessment that exigent circumstances did not justify entering room 324.
Should the evidence be excluded under s. 24(2)?
The law on s. 24(2)
[119] Section 24(2) of the Charter provides that any evidence “obtained in a manner” that infringes the accused’s Charter rights “shall be excluded if it is established that, having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.
[120] As for being “obtained in a manner”, the impugned evidence must be obtained in a way that infringed or denied the accused’s Charter rights: R v Strachan, 1988 CanLII 25 (SCC), [1988] 2 SCR 980. This can be demonstrated by showing that the evidence is part of the same transaction or course of conduct that involves the Charter breach. Temporal, contextual and causal relationships between the Charter breach(es) and evidence are all taken into account: R v Wittwer, 2008 SCC 33 at para 21. Tenuous and remote connections cannot form the foundation upon which the exclusion of evidence rests. In this case, the Charter breaches are all within a 10-minute period and, as such, the crack cocaine and impugned statements are form part of the same transaction. I am satisfied that they meet the s. 24(2) “obtained in a manner” prerequisite.
[121] In Grant, the court set out three factors for consideration in determining whether the administration of justice would be brought into disrepute: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in adjudication of the case on its merits. See: Grant at para 71; R v Fearon, 2014 SCC 77 at para 89; R v Mian, 2014 SCC 54 at para 78.
[122] The purpose of s. 24(2) is to preserve the reputation of the administration of justice. The concept of bringing the administration of justice into disrepute relates to the reputation of justice as a whole and the need, through Charter rulings, to inspire (and not undermine) the public’s confidence in the justice system. It involves an objective inquiry that explores what the reasonable person, knowing “all of the relevant circumstances and the values underlying the Charter, would conclude” in terms of whether admitting the evidence in an individual case would adversely impact the reputation of justice as a whole: Grant at para 68. This long-term, forward-looking approach to s. 24(2) can only be achieved by assessing each of the individual categories set out in Grant.
[123] As it relates to the seriousness of the Charter-infringing state conduct, the court must concern itself with whether the police acted in a wilful way with a deliberate disregard for Charter rights. The more deliberate the misconduct, the more the court should dissociate itself from that conduct. Where officers demonstrate good faith in their actions, however misguided, the need to dissociate from their conduct will be reduced. Unfamiliarity with the law, negligence and wilful blindness should not be confused with good faith. Indeed, unfamiliarity with the law should not be “rewarded or encouraged”: Grant at para 75; R v Kokesch, 1990 CanLII 55 (SCC), [1990] 3 SCR 3 at pp 32-3; Buhay at para 59.
[124] As it relates to the second prong of Grant, the impact of the breach on the Charter-protected interests of the accused, this inquiry also concerns itself with sending the right message, lest the public think, in the wake of serious breaches, that Charter rights count for little. Like police conduct, the impact of Charter breaches rests on a continuum, from “fleeting and technical to profoundly intrusive”: Grant at para 76.
[125] The third prong acknowledges that the public have a keen interest in seeing cases adjudicated on their merits. Under the third prong, the court looks to the truth-seeking function of the criminal trial and the impact of admitting or excluding the impugned evidence on the trial. A breach that undermines the reliability of evidence will point toward exclusion because the admission of unreliable evidence cannot enhance truth seeking. On the other hand, excluding reliable evidence that will gut the prosecution is a relevant consideration militating against exclusion. See: R v Spencer, 2014 SCC 43 at para 80; R v Taylor, 2014 SCC 50 at para 38.
[126] As for the seriousness of the offence, it has been found to cut both ways. As noted in Grant, and reinforced in R v Harrison, 2009 SCC 34, “the public has a heightened interest in seeing a determination on the merits where the offence charged is serious” but the public also has “a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”: Grant at para 84.
[127] The trial judge must consider each of these categories and determine whether, having regard to all of the circumstances, the evidence obtained as a result of the Charter breach would bring the administration of justice into disrepute.
Applying the s. 24(2) law to the facts
[128] There were four Charter breaches in this case: (1) arbitrary detentions; (2) a failure to afford the ss. 10(a) and (b) rights; (3) unlawful pat-down searches; and (4) a warrantless and unreasonable search of room 324.
[129] I find that the officers testified in a straightforward manner about their interactions with the accused on the night in question and, in some cases, were just mistaken about the law. For instance, Officer Brabant testified that he need not have reasonable grounds to believe there is an imminent risk to safety before conducting a pat-down search. I pause to note that this is exactly what a majority of the Supreme Court of Canada said in MacDonald just over a year ago and almost exactly what a majority of the same court said in Mann over a decade ago. The Mann test is also what the Crown accepted in this case. Officer Brabant suggested that he could simply pat-down an individual he is dealing with for “officer safety” reasons, dissociated from any threshold grounds.
[130] This is not an area where there is uncertainty in the law: Spencer at para 77. While I find that they did not set out to intentionally breach Moulton and Allen’s Charter interests, both officers’ actions had that effect and many times over. I find that this arose largely from a misunderstanding about the law of detention and what triggers it, when a pat-down search can be conducted, and when the exigent circumstances doctrine justifies a warrantless entry. (Officer Holder also advanced a view that the police could enter room 324 because the accused had disavowed an interest in that location and it held a lower expectation of privacy.) As noted above, unfamiliarity with the law, or a misunderstanding of the law, cannot be equated with good faith. While the law of detention and the police powers ancillary to it can be sometimes complex and subtle, officers are expected to know the law and apply it correctly. They did not do that here and what resulted were a constellation of Charter breaches that had a domino effect.
[131] The impact of the state conduct on the Charter protected interests of the accused was also serious. They were unlawfully detained, unlawfully patted down, denied the right to counsel, and their room was searched on a warrantless basis. The detentions led to the statements and key card. I note that while hotel rooms fall short of homes when it comes to the degree of privacy that should be attributed to these environments, they are properly assigned s. 8 protection for good reason. They can be a home away from home and contain highly personal matters. While I would not characterize the breaches in this case as “profoundly intrusive”, the pat-downs were not strip searches and the hotel room was not a private home, their collective impact cannot be described as trifling or fleeting in nature.
[132] As for society’s interest in adjudication on the merits of this case, I note that trafficking in crack cocaine is a serious matter and represents a scourge on our society. Society has a strong interest in seeing this case through to the end. I acknowledge that exclusion of the crack cocaine will gut the prosecution as it relates to the trafficking charge. Moreover, the exclusion of Mr. Moulton’s statement – giving the false name of Cory Miller – will end the prosecution related to the obstruct justice count. Nonetheless, I find that on balance, this evidence should be excluded. On the whole, and bearing in mind all of the circumstances, given the sheer number of Charter breaches, and their seriousness, I find that the admission of the evidence will bring the administration of justice into disrepute.
The Assault Peace Officer Counts
As it relates to the assault on Officer Brabant, the evidence I heard on the voir dire suggests it was extremely serious. (I heard no evidence as it relates to count 3 on the indictment, relating to the assault on Officer Holder.) I leave it with the Crown as to how they wish to proceed and am prepared to hear from counsel on the impact, if any, of my findings related to the Charter breaches on the assault related charges.
FAIRBURN J
Released: February 17, 2015
CITATION: R. v. Moulton, 2015 ONSC 1047
COURT FILE NO.: CRIM 678/13
DATE: 2015/02/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
TRAVON MOULTON AND
THEODORE ALLEN
RULING
FAIRBURN J
Released: February 17, 2015