CITATION: R. v. Rawlings, 2015 ONSC 2415

COURT FILE NO.: 3515/12 DATE: 2015-04-14

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DENNIS RAWLINGS Defendant

COUNSEL: G. Roy & J. Selvaratnam, for the Crown D. Santoro & J. Christie, for the Defendant

HEARD: April 7, 8, 9, 10, 2015

BEFORE: Justice B. Glass

Defence Application for a Stay of All Proceedings

[1] Mr. Rawlings applies to stay all 3 counts on the indictment because of the police conduct at his arrest. The charges are trafficking in cocaine, conspiracy to traffic in ketamine and possession for the purpose of trafficking in ketamine contrary to the provisions of the Controlled Drugs and Substances Act.

[2] There had been a drug investigation project called Project Nexus with wiretap authorizations.

[3] On June 16, 2010 the actions of the Defendant led police to conclude that he had been involved in a trafficking transaction. The charge against Mr. Rawlings was not processed at that time because the investigating police service wanted to continue the project. Had they made an arrest of the Defendant, that would have alerted people involved with the project that they might be under investigation.

[4] On July 4, 2010, York Regional Police Service were observing Mr. Rawlings and saw what they thought was a transfer of ketamine from another person to the Defendant. The product was thought to be in a black bag handed to Mr. Rawlings by Raghave Suri.

[5] York Regional Police Service did not want to end their project on July 4th; so, Detective Torres, the officer in charge of the investigation on the road, communicated with a uniform traffic police office, Detective Constable Nauman, and instructed the officer to stop Mr. Rawlings’ vehicle on the pretense of a traffic issue. He did not want the traffic officer to tell the Defendant that there was a major drug investigation involved. Detective Torres told Officer Nauman to make up any excuse and try to obtain the consent of Mr. Rawlings to search his vehicle. Basically, Detective Torres told Officer Nauman to tell any lie that came to mind to try to obtain consent from Mr. Rawlings to search his vehicle.

[6] Detective Torres told Officer Nauman that Mr. Rawlings was a person of interest in a homicide investigation in Toronto, that he had a violent past, a criminal record for assault and was subject to a firearms prohibition order.

[7] Officer Nauman told Mr. Rawlings that he stopped him because there had been a complaint about how someone was driving. The Defendant disputed that he was the driver.

[8] The Defendant appeared to be nervous. He did get out of his vehicle at one time to allow a pat-down search and got back into his vehicle. Nauman returned to his police vehicle and spoke to Detective Torres again and was directed to try to get Mr. Rawlings to consent to a search of his vehicle.

[9] The Defendant refused to agree to a search of his vehicle. He objected to the officer having reason to be asking to search.

[10] The traffic officer continued to play out the traffic stop with requests to search the vehicle.

[11] Officer Nauman did not tell Mr. Rawlings that he was stopped for the drug offence or that he had the right to retain and instruct a lawyer pursuant to ss. 10 (a) & (b) of the Charter.

[12] Officer Nauman stated that he was concerned for officer safety when he wanted to search by way of a pat-down search the person of Mr. Rawlings. The same explanation was given for a search of the vehicle.

[13] The Defendant exited his vehicle again and began rummaging through the back of his vehicle tossing items about. His wife appeared on the sidewalk and he tossed a black bag to her.

[14] When this development occurred, the surveillance team became concerned that the suspected drugs were in that black bag and rushed to the scene to retrieve the bag and contents and to arrest Mr. Rawlings.

[15] A struggle ensued. At this time, no one had told Mr. Rawlings that he was under arrest for any criminal offence. He had not even been told he was charged with any driving infraction. Six officers ended up on top of the Defendant.

[16] The officers became concerned that the Defendant might suffocate; so, they got him up.

[17] The Defendant sustained several broken ribs as a result of this very unnecessarily physical arrest.

[18] Mr. Rawlings was charged with assaulting the 6 officers. Subsequently, the charge was withdrawn.

Issues

[19] Has there been an infraction of one or more of ss. 7, 8, 9 10 (a) & (b) and 12 of the Charter?

[20] Should a court stay any or all of the counts pursuant to s. 24(1) of the Charter?

[21] Should a court exclude evidence pursuant to s. 24(2) of the Charter if there is an infringement of ss. 7, 8, 9, 10 (a) &(b) and 12 of the Charter?

Analysis

[22] The Crown accepts that the actions of the police were improper; however, the Crown points to real evidence being seized, that there was observation of the actions of the Defendant regarding drug trafficking and possession for the purpose of trafficking, and that staying the counts on the indictment would be judicial over-reaction.

[23] I am not persuaded that the Crown position is correct. This is an example of police officers going to extreme measures. Understandably, one might not want to discontinue a major investigative project with authorizations to intercept private communications of people unless there is an appropriate timing available or a necessity to do so. In this case, I do not see a justification for drawing out the investigation by lying to a person, arbitrarily stopping the person and detaining the individual and drawing the person into a physical confrontation for no apparent good reason. Yes, the officers subjectively might have thought they were acting in a justifiable manner because of their knowledge of their investigation to date. And the officers might have wanted to see where the case might go beyond the traffic stop. However, objectively the person on the street and the Defendant would be in the dark. To stop a person on a trumped up highway driving infraction and push to search the person and his vehicle is improper.

[24] Failure to advise the Defendant of why he was detained under s. 10 (a) of the Charter and his right to retain and instruct a lawyer under s. 10(b) of the Charter is acting contrary to the Charter protections available to everyone.

[25] There was no foundation for a concern for officer safety when Officer Nauman did a pat-down search. The same applies regarding searching the vehicle.

[26] The officers accept that the Charter of Rights and Freedoms is the supreme protection of persons in Canada from arbitrary detention and arrest, unlawful search and seizure and to have their life, liberty and security observed within the considerations of fundamental justice.

[27] In a similar case from Alberta, the trial court excluded evidence pursuant to s. 24(2) of the Charter. R. v. Mian, 2014 SCC 54 at trial excluded evidence because of the way it was gathered. The Supreme Court of Canada was not prepared to overturn the decision of the trial judge where the investigating police service told traffic officers to do a traffic stop, that there were grounds to arrest the suspect, but to reveal that circumstance if they could not find other grounds. The traffic officers stopped the Defendant there and detained him for 22 minutes before advising him of the reason for his arrest and another 5 minutes before advising him of his right to retain and instruct counsel. The reason for not doing a transparent drug arrest was that such action would have compromised the integrity of a separate ongoing wiretap investigation into gang violence in the community. A large amount of cocaine was seized when Mr. Mian was arrested.

[28] In Mian (supra), the trial judge made a finding that there was not sufficient evidence to support the assertion that immediate compliance with s. 10 of the Charter would have compromised the broader investigation. The Supreme Court was not prepared to interfere with the decision of the trial judge.

[29] In Mian (supra), a s. 24(2) Charter analysis following Grant (supra) was conducted by the trial judge and excluded the evidence. The Supreme Court assessed the seriousness of the breach as deliberate and egregious state conduct favouring the exclusion of the evidence.

[30] In Rawlings, Officer Nauman was not told to come clean with the real reason for the stop whereas such a direction was given in Mian (supra).

[31] With the case of Dennis Rawlings, the officers in varying ways described their actions in parsed up ways so that they were not appearing to act together with all the events described above. One officer said that he was over the accused but not on him. Other officers did not accept that 6 of them were on top of Mr. Rawlings. Many times officers had a memory lapse by answering that they did not recall some events. With several officers involved, one might find it understandable that not all would recall precisely the same events or order of events; however, I am surprised at how often they appeared to avoid providing answers with an answer that they did not recall. It was noticeable enough that I am reminded of an American Senate hearing many years ago with the late Jimmy Hoffa whereby Mr. Hoffa developed a very common answer that he did not recall and finally Robert Kennedy commented that Mr. Hoffa had the most extreme case of amnesia he could ever imagine inflicting a person.

[32] This catastrophe unfolded from an ill-founded plan by the investigators to lie to Mr. Rawlings and trying to con him into a consent search without even following police protocol for obtaining an informed consent from a person to a search of his person or property. One is left with the impression that in this case the officers set out to circumvent the Charter counting on getting away with going up to the line but not over it.

[33] To lie to the person, not advise him why he is detained, pile onto him in an arrest when they think they are about to lose illicit substances is too extreme to let pass. This falls within the first Grant point of analysis in R. v. Grant, 2009 SCC 32 paragraph 71. Allowing such evidence to survive projects a message that courts will approve serious misconduct of state officials.

[34] To create an unjustified situation of confrontation and then load up the case against Mr. Rawlings with an assault charge is a way of covering ones bases when they have done the other wrong. I am not surprised that the charge was withdrawn later. Only when the physical confrontation to arrest Mr. Rawlings occurred did some officer tell him that he was under arrest for possession for the purpose of trafficking. No specific drug or substance was mentioned. He only received a police caution and Charter right to retain and instruct a lawyer after his arrest.

[35] This appears to be a major case involving illicit substances of larger quantities. To say that real evidence is present so that the court should let all the improper police conduct pass would be a travesty of justice. It would amount to endorsing police services to become rogue investigators operating on the basis that the end justifies the means whenever officers say they are pursuing a good cause. Again, this meets the first point of Grant (supra).

[36] Such an approach cannot be acceptable. There is no doubt that arbitrary detention, unlawful search and seizure and the life, liberty and security of a person are all infringed. Ss. 9, 8, and 7 are breached. Ss. 10 (a) and (b) of the Charter are breached when the officers persisted in not telling Mr. Rawlings why he was detained and that he had a Charter right to retain and instruct counsel. To endorse these breaches amounts to sweeping improper conduct of police officers under the carpet. This Charter infringement conduct and its admission might advance a signal that the rights of an individual are insignificant within the second branch of Grant (supra). There can be no doubt that these Charter infringements would bring the administration of justice into disrepute.

[37] The third consideration in Grant (supra) assesses the interest of society in seeing the case processed on its merits.

S. 24(2) Charter Conclusion

[38] If all three branches of the Grant analysis are met, then at the very least the evidence should be excluded pursuant to s. 24(2) of the Charter. If that were to be done with the ketamine evidence from the July 4th activities, counts 2 and 3 would grind to a halt. However, the June 16th case was one in which charges against Mr. Rawlings had been withheld and were processed weeks after July 4, 2010. Simply excluding the cocaine evidence might be an empty result because it does not terminate the continuation of a wrong. To permit that evidence to be advanced would in effect frustrate the Grant analysis and would bring the administration of justice into disrepute as an abuse of process falling into a residual category.

S. 24(1) Charter Conclusion

[39] The test for a stay of proceedings under the residual category was expressed clearly by Lebel J. in R. v. Regan, 2002 SCC 12 at paragraphs 54-57 stating that when dealing with an abuse of process falling into the residual category, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in the exceptional, relatively very rare case will the past misconduct be so egregious that the mere fact of going forward in light of it will be offensive. A stay of the proceedings is to be considered prospectively rather than as a retroactive remedy. The stay remedy has an objective to stop the perpetuation of a wrong that will continue to bother both the parties and the community as a whole in the future.

[40] There are occasions when Charter breaches are so extensive that the prosecution of charges must be stopped. This is one of those times. The plan by the investigators was colloquially to lie, cheat and steal a consent out of Mr. Rawlings so that they might avoid shutting down an investigation. This case demonstrates police investigators conducting a plan of action in spite of the Charter protections. The officers gave varying accounts of being aware of the false stop of a person coupled with a lie about the reason for the stop. Some had heard of it being used. The road officer has not used it since. In so many words, the Crown is saying let it go and it won’t happen again. I think that the answers provided by various witnesses indicates that this is not a method of investigation used in isolation with York Regional Police Service. It appears in Alberta in the Mian case (supra) as well.

[41] Courts cannot endorse deliberate police planning to by-pass the protections of the Charter. If the prosecution of cases flowing from abuse is stopped, there can be no doubt that there will be a change of how police services conduct themselves with persons.

Conclusion

[42] There will be an order staying the allegations in counts 1, 2, and 3 of the indictment pursuant to s. 24(1) of the Charter.

Justice B. Glass

Released: April 14, 2015