CITATION: Her Majesty the Queen v. Darren Burnett, 2015 ONSC 3586
COURT FILE NO.: CRIMJ(P) 761/15
DATE: 2015-06-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Alanna Fedak-Tarnopolsky, for the Respondent
- and -
DARREN BURNETT
Paul Aubin, for the Applicant
HEARD: April 28, 2015
REASONS FOR JUDGMENT
Re: Application Pursuant to Sections 7, 8, 9, 10(b) and 24(2) of the Charter of Rights and Freedoms
Fragomeni, J.
[1] At this application heard before me on April 28, 2015, two officers testified with respect to the events and circumstances leading up to the arrest of the applicant, Darren Burnett. I will review the testimony of each officer in some detail in order to provide the evidentiary context to the legal discussion that follows.
Cst. Christopher Reis
Examination In-Chief:
[2] Cst. Reis is a member of the Peel Regional Police and has been so employed for seven years.
[3] On April 25, 2014, he was on general patrol with Cst. Gales. They were together in an unmarked police vehicle. They were in the area of Mulbridge Road and Pickfair. Cst. Reis had information about drug activity in that area and it is for that reason that they were conducting general patrol in the area.
[4] At 1:18 p.m. they were driving westbound along Mulbridge and Pickfair when they saw a male person. Cst. Reis’ partner, Cst. Gales, said that he believed this person was on house arrest. This male person had exited a residence and got into a van. The van was a 2001 blue Dodge van, license plate BNWS 604. The officers had prior information that a Darren Burnett had been associated to this van. They did not believe this person they saw was Darren Burnett but Darren Burnett was of interest to them because he was on house arrest and they wanted to check to ensure he was complying with his conditions.
[5] The officers proceeded to follow the van and the van proceeded to Marvin Heights School. The van approached the front doors and stopped. No one entered the van and no one got out of the van.
[6] The officers ran a CPIC check for Darren Burnett and confirmed that the conditions of the house arrest were still in effect. The van was at the school for one minute and left. There was only one person in the van and Cst. Reis gave the following description:
Male
Black
30 years old
Average height
Average weight
[7] The van then left the school property and the officers followed it. At 1:23 p.m. the officers stopped the van so they could identify the driver and confirm if it was, in fact, Darren Burnett. The officers utilized their lights and siren to pull the van over. The officers were in full uniform. At this point they did not know who the driver was.
[8] The van stopped. Cst. Reis approached the driver and said “Someone associated with this van is under house arrest.” The driver responded with “That’s me.” The driver then handed to Cst. Reis court documents, namely the Probation Order.
[9] Cst. Reis then asked for his driver’s license, ownership and insurance. These documents confirmed the driver was Darren Burnett, date of birth January 7, 1983.
[10] Darren Burnett told Cst. Reis he was at the school to drop off a science project for his daughter. Cst. Reis was not aware of any exceptions to the house arrest conditions and he did not ask Darren Burnett if there were any.
[11] When Cst. Reis did see the order, the exceptions noted were for pick up and drop off of his children at the school.
[12] At 1:25 p.m. Cst. Reis arrested Darren Burnett. Darren Burnett exited the vehicle. He was searched for officer safety reasons, cuffed and put in the back of the police vehicle. He was read his rights to counsel and caution accordingly.
[13] When he was told that he was being arrested for breach of a conditional sentence, Darren Burnett stated that he was allowed to be at the school. When asked if he wanted to call a lawyer he said “no, why don’t you call my probation officer. I’m allowed to be at the school.”
[14] At 1:55 p.m. Cst. Rehan attended the scene and transported Darren Burnett back to the station.
[15] The van remained at the scene. It was on the roadway angled to the south curb. The back of the van was sticking out onto the roadway by about two feet. Cst. Reis described this as a hazard and unsafe to leave it there. So he called for a tow truck.
[16] Cst. Reis never asked Darren Burnett to pull the van right up against the curb when he stopped him. It never occurred to him. He never asked Darren Burnett to move the vehicle because he had been arrested.
[17] The tow truck was called after Darren Burnett had left the scene with the transporting officer.
[18] Cst. Reis stated that he could have contacted the registered owner of the van to come and pick it up but he did not. He did not feel comfortable doing that based on the fact that Darren Burnett had just been arrested and that Darren Burnett has had prior interactions with the police. The registered owner could become upset at the officers and take their anger out on them.
[19] Cst. Reis explained that he had the authority to tow the van on the basis that it had been abandoned. The van would be towed to a safe place until the owner could pick it up.
[20] On this basis Cst. Reis conducted an inventory search of the inside of the van to record any items of value. During the course of that inventory search, he located, in plain view, a break or gas pedal containing two pieces of crack cocaine. As a result the officers searched the van for more drugs, incident to arrest, as Darren Burnett was going to be charged with the possession of the crack cocaine.
[21] Cst. Gales located in the compartment above the dash more crack and a handgun, namely a loaded 6 round .38 calibre Smith and Wesson.
Cross-Examination:
[22] In cross-examination by the defence, Cst. Reis confirmed or acknowledged the following:
Cst. Reis made no effort to contact Darren Burnett’s wife prior to searching the van. Darren Burnett’s wife did attend the scene at sometime between 2:00 p.m. and 3:00 p.m. By the time she was on scene they had not yet finished searching the van. He does not recall speaking to her.
When Cst. Reis pulled the van over he never saw or noticed that it was angled and blocking the roadway. He only noticed this after the search of the van. He explained this by saying he was focused on the driver, not the van. Cst. Reis then corrected himself and stated he noted the van blocking the road prior to the search.
Prior to the search, the van was at the side of the road for about a half hour. From 1:25 to 1:55 Cst. Reis never noticed that the van was sticking out. He explained this again by saying he was not concerned about the van. At 1:55 he finally noticed the van was blocking the roadway.
Cst. Reis acknowledged that if the van had not been blocking the lane of traffic he would not have towed and searched it.
Cst. Reis acknowledged as well that he could have told the driver to move the van off the road. He did not because he was concerned with Darren Burnett and he did not know who else was in the van.
During the investigation Darren Burnett was compliant and co-operative.
Eventually Cst. Reis did speak to the registered owner, at 6:47 p.m.
Darren Burnett’s residence is about one kilometre from the scene where he was stopped and arrested.
At no time during the inventory search of the van did Cst. Reis believe there would be drugs in the van.
Cst. Reis never advised Darren Burnett that the van would be searched and towed and Darren Burnett had no knowledge that that would take place.
At no time did Cst. Reis use the word “abandonment or abandoned” in his officer’s notes.
Cst. Andrew Gales
Examination In-chief:
[23] On April 25, 2014, he was on general patrol in an unmarked cruiser with Cst. Reis in the Mulbridge and Pickfair area.
[24] At 1:18 p.m. a male exited a residence and got into a van. Cst. Gales knew that a Darren Burnett was associated to this van and that Darren Burnett was on house arrest conditions. He told Cst. Reis this male matches a male known to be on house arrest. They decided to follow the van. At the same time a CPIC inquiry was done to confirm that the house arrest conditions were still in effect. Cst. Gales had a mug shot of Darren Burnett and it matched the male that got into the van. They followed the van to Marvin Heights School. The van parked there for one minute and left. No one entered the van and no one exited the van.
[25] They continued to follow the van and effected a stop. Both officers approached the driver’s side door. Darren Burnett was advised of the reason for the stop, and he stated he was the male in question and he handed the officers a copy of his Conditional Sentence Order. After reading the Order Cst. Reis arrested Darren Burnett. Darren Burnett told the officers he was dropping off a mannequin head for his daughter’s project. Cst. Gales called the Principal of the school to confirm this, but she told Cst. Gales Darren Burnett was not supposed to be at the school. Darren Burnett told Cst. Gales he was allowed to be there and that Cst. Gales should call his probation officer.
[26] After Darren Burnett was arrested, Cst. Gales called for a tow truck as the van was parked on the roadway obstructing the lane of traffic. He first noticed this after Darren Burnett had been transported to the station.
[27] He did not call anyone to come and get the van as he does not make calls to civilians from a roadside - only from his work line.
[28] Cst. Gales described his search of the van and what he found and seized.
[29] The reason he never asked Darren Burnett to move the van off the roadway was his concern that Darren Burnett might flee the scene or retrieve something they could not see.
Cross-Examination:
[30] In cross-examination by the defence Cst. Gales confirmed or acknowledged the following:
There was no problem with the van pulling over when signalled to do so.
He never mentioned to Darren Burnett the van would be towed and searched.
He never called anyone to come and pick up the van. Although Darren Burnett had a phone, he would not use someone else’s phone.
Darren Burnett asked him to call his wife.
He did not tow it to Darren Burnett’s wife’s residence as she would be charged for that tow. Police policy is that it has to be towed to a pound, not someone’s home.
An inventory search is done to protect the police and Darren Burnett.
There is nothing in his notes about the male he saw matching a mug shot.
The only association Darren Burnett had to this van was on December 11, 2013, when he was stopped driving the van.
Before they stopped the van they did not know it was, in fact, Darren Burnett. He believed it was him but did not know for sure.
Position of the Applicant:
[31] The Applicant submits the following:
- The police lacked objectively reasonable suspicion to detain the Applicant.
In this case, the police allege that on April 25, 2014, they saw the Applicant get into a van and drive off. They did not know the Applicant’s identity prior to the detention and he is not the registered owner of the van. According to police, they ran numerous checks on the van’s license plate and discovered that the Applicant was pulled over in that van four-and-a-half months earlier on December 11, 2013, and was on house arrest at the time. The mere fact that the Applicant was driving this van one time four and a half months earlier is not objectively reasonable suspicion that he was driving it on April 25, 2014. The police admit that they did not know who was driving at the time of the detention. The Applicant is not the registered owner and the police had no information that he ever drove the van on any other occasion. Moreover, they did not know if he was still on house arrest or breaching it at the time of the detention.
The police violated Section 10(b) by failing to advise the Applicant of his right to counsel immediately upon detention. The Applicant submits that the police actively gathered information from the Applicant during detention and relied upon that information to form grounds to arrest him. Only after the arrest was the Applicant advised of his right to counsel. This is a flagrant violation of the established and basic police duty to inform a detainee of his right to counsel.
The warrantless search of the van was unlawful. At paragraph 17 of his Factum, the Applicant summarizes his position on this issue as follows:
The initial justification for the warrantless search of the van was to conduct an inventory search of its contents pursuant to Peel police policy. This justification is unlawful pursuant to the Supreme Court of Canada’s decision in R. v. Caslake, where the police advanced the same reason for a search, which the majority rejected as unconstitutional. It is incredible that the police are advancing the same unconstitutional justification for a search almost 20 years after Caslake settled this issue. The evidence was not excluded in Caslake because the majority found that there was, objectively, grounds that were not acted upon to search the vehicle incident to arrest, and good faith reliance upon RCMP policy before the law on inventory searches was established, which mitigated the seriousness of the breach. In the case at bar, however, no such lawful grounds existed and the law has been settled since Caslake was decided in 1998 that a police policy inventory search is unconstitutional. Thus, the police are flagrantly breaching trite and basic Charter law that was settled almost 20 years ago. Caslake concluded the following regarding inventory searches at paragraph 30:
If the police feel the need to inventory a car in their possession for their own purposes, that is one thing. However, if they wish to tender the fruits of that inventory search into evidence at a criminal trial, the search must be conducted under some lawful authority.
R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, at paras. 3, 26, 30
The police had no grounds to get a warrant to search the vehicle.
The search incident to arrest was not lawful. The search must be incidental to a lawful arrest. Further, the Applicant had not yet been arrested.
Pursuant to Section 24(2) the evidence must be excluded.
Position of the Crown:
[32] The Respondent submits:
- The police had an objectively reasonable suspicion to detain the Applicant.
The police were aware that an individual associated with the Dodge Caravan was on house arrest.
Before conducting a stop of the vehicle the Applicant was operating, police confirmed that the male associated with the vehicle was named Darren Burnett, that Darren Burnett was still on house arrest conditions and that the male observed leaving Darren Burnett’s address and entering the vehicle matched a mug shot of Darren Burnett.
Police had an objectively reasonable suspicion to conduct a traffic stop and to detain the Applicant.
- Police complied with Section 10(a) and Section 10(b) of the Charter.
Police conducted a valid traffic stop and immediately advised the Applicant of the reason for the stop.
Police were not obligated to provide the Applicant with his rights to counsel at the moment they stopped the vehicle and asked for the Applicant’s documentation.
R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 at para. 26
The Applicant identified himself as being on house arrest, and verbally identified himself as Darren Burnett. This information triggered his arrest for breach of a conditional sentence.
Police provided Mr. Burnett with his right to counsel immediately after his arrest for breach of a conditional sentence.
- The inventory search of the vehicle was authorized by law.
Police were authorized by law to search Mr. Burnett’s vehicle pursuant to section 221(1) of the Highway Traffic Act [HTA]. Section 221(1) of the HTA states that:
A police officer or an officer appointed for carrying out the provisions of this Act who discovers a vehicle apparently abandoned on or near a highway or a motor vehicle or trailer without proper number plates may take the vehicle into custody of the law and may cause it to be taken to and stored in a suitable place.
Police were authorized by law to store Mr. Burnett’s vehicle under s. 221(1) of the HTA because it was “abandoned” in the street following the lawful detention and arrest of Mr. Burnett.
As a result of their authority to secure Mr. Burnett’s vehicle, police were further authorized to search the interior of the vehicle for items that were plainly visible and of apparent value.
R. v. Nicolosi, 1998 2006 (ON CA), [1998] O.J. No. 2554 (C.A.) at para. 34.
R. v. Wint 2009 ONCA 52, [2009] O.J. No. 212 (C.A.) at paras. 9-17.
The discovery of crack cocaine in the front driver’s door of the vehicle was as a result of a lawful inventory search authorized by s. 221(1) of the HTA.
- The search incident to arrest was lawful.
The discovery of crack cocaine during the inventory search triggered an investigation pursuant to the CDSA, which allowed for a search incident to arrest of Mr. Burnett’s vehicle.
R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851 at para. 49.
Police were authorized to conduct a search incident to arrest of the vehicle as they had a reasonable prospect of securing evidence for the offence (possession of crack cocaine) for which the accused was arrestable for.
R. v. Polashek, 1999 3714 (ON CA), [1999] O.J. No. 968 (C.A.) at para. 26.
R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51 at para. 19.
Ibid, Nolet
- Section 24(2)
The Crown submits that the evidence ought not to be excluded for the following reasons:
(i) The officers acted in good faith based on the information they had at the time.
(ii) The effect of any breach is not significantly intrusive.
(iii) There is a high public interest in having this case adjudicated on its merits.
Analysis and Conclusion
[33] Did the police have an objectively reasonable suspicion to detain the Applicant?
[34] In R. v. Mann, 2004 SCC 52, the Court set out the following at paragraphs 15, 34 and 35;
As stated earlier, the issues in this case require the Court to balance individual liberty rights and privacy interests with a societal interest in effective policing. Absent a law to the contrary, individuals are free to do as they please. By contrast, the police (and more broadly, the state) may act only to the extent that they are empowered to do so by law. The vibrancy of a democracy is apparent by how wisely it navigates through those critical junctures where state action intersects with, and threatens to impinge upon, individual liberties.
The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.
Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.
[35] In R. v. Grant, [2009] SCC 32 the Court stated the following at paragraphs 16, 19 and 20;
Constitutional guarantees such as ss. 9 and 10 should be interpreted in a “generous rather than . . . legalistic [way], aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection” (R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, at p. 344). Unduly narrow, technical approaches to Charter interpretation must be avoided, given their potential to “subvert the goal of ensuring that right holders enjoy the full benefit and protection of the Charter” (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 23).
Detention represents a limit on the broad right to liberty enjoyed by everyone in Canada at common law and by virtue of s. 7 of the Charter, which guarantees that liberty will only be curtailed in accordance with the principles of fundamental justice. Section 9 of the Charter establishes that “[e]veryone has the right not to be arbitrarily detained or imprisoned”. Section 10 accords certain rights to people who are arrested or detained, including the right to retain and instruct counsel.
The purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference. As recognized by this Court in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, “liberty”, for Charter purposes, is not “restricted to mere freedom from physical restraint”, but encompasses a broader entitlement “to make decisions of fundamental importance free from state interference” (para. 49). Thus, s. 9 guards not only against unjustified state intrusions upon physical liberty, but also against incursions on mental liberty by prohibiting the coercive pressures of detention and imprisonment from being applied to people without adequate justification. The detainee’s interest in being able to make an informed choice whether to walk away or speak to the police is unaffected by the manner in which the detention is brought about.
Section 9 of the Charter states:
Everyone has the right not to be arbitrarily detained or imprisoned.
[36] In R. v. Doan, 2012 ONSC 3776, Justice Hill sets out a very thorough and informative review of the legal principles applicable to the s. 9 analysis at paragraph 57:
The dispute between the parties in this case turned more on the application of accepted principles than the state of the governing law itself. The overarching principles include the following:
(1) section 9 of the Charter "guards not only against unjustified state intrusions upon physical liberty, but also against incursions on mental liberty by prohibiting the coercive pressures of detention ... from being applied to people without adequate justification": R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1(S.C.C.), at para. 20
(2) the section 9 Charter right protecting against arbitrary detention does not require that the police abstain from pursuing an investigation with a member of the public until they have specific grounds to connect the individual to the commission of a crime: Grant, at para. 38
(3) "detention" occurs where a state agent, by way of physical or psychological restraint, takes away an individual's choice simply to walk away: Grant, at para. 25
(4) psychological restraint occurs where a person submits or acquiesces in the deprivation of liberty by the direction or demand of a police officer and reasonably believes that the choice to do otherwise does not exist: R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, at p. 644; Grant, at paras. 25, 28; United States v. Johnson and McGhee (U.S.C.A. 7th Cir, No. 11-2690, May 24/12), at p. 14; United States v. Madden (U.S.C.A., 10th Cir., No. 10-6072, June 19, 2012), at pp. 6-7 ("So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required")
(5) not every interaction with, or delay by, a police officer will amount to a constitutional detention - in the circumstances, there must be, not a trivial interference, but a situation of significant physical or psychological restraint depriving the individual of a meaningful choice whether or not to cooperate: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19; Grant, at paras. 26, 35, 44
(6) the objective nature of the inquiry asks whether, in all the circumstances, the individual would have perceived that he or she had no choice but to comply with the police directive: Grant, at para. 44
(7) "while the test is objective, the individual's particular circumstances and perceptions at the time may be relevant in assessing the reasonableness of any perceived power imbalance between the individual and the police": Grant, at para. 32
(8) while "the subjective intentions of the police are not determinative" (Grant, at para. 32), where a police officer specifically orders a person to "stop" intending to detain him or her there will ordinarily be a situation of detention: R. v. Nguyen (2008), 2008 ONCA 49, 231 C.C.C. (3d) 541 (Ont. C.A.), at paras. 2, 8, 22
(9) the onus is upon an accused person claiming a s. 9 Charter violation to establish, on a balance of probabilities, the breach of his or her right (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 28), and in discharging that burden the absence of evidence from the accused may, or may not, determine whether the burden is satisfied: Suberu, at para. 28 ("the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application"); Grant, at para. 50 (because "the test is an objective one, this [applicant's failure to testify] is not fatal to his argument that there was a detention")
(10) detention is "arbitrary", in the sense of an unlawful interference with a person's freedom of choice, where the grounds necessary to effect detention do not exist: Grant, at paras. 53-6
(11) a detention based upon speculation and an absence of objectively articulable grounds offends s. 9 of the Charter
(12) whether assessing the adequacy of grounds of belief for an investigative detention (reasonable suspicion) or for an arrest (reasonable and probable grounds), there must in all the circumstances exist evidence both that the police officer imposing detention held an honest view that the grounds were present and that a person in the position of the officer would have reasonably believed the grounds were present: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-1; Mann, at paras. 28-35
(13) the existence of reasonable grounds is essentially a question of fact to be determined on the totality of circumstances (R. v. Bernshaw (1995), 1995 150 (SCC), 95 C.C.C. (3d) 193 (S.C.C.), p. 214) including factoring into the assessment the experience and trained perception of the police officer: R. v. Brown, 2012 ONCA 225, at para. 13
(14) in a particular case, on any reasonable view of the circumstances, less intrusive means of investigation may be said to have been necessary and appropriate "before resorting to the coercive actions of arrest": Brown, at paras. 14, 16-19, 23-6
(15) while perhaps relevant to the s. 24(2) Charter analysis, that where the police had grounds to at least investigatively detain (R. v. Dene, 2010 ONCA 796, at paras. 4-6; Brown, at para. 28) they arrested in the absence of reasonable and probable grounds, a Crown submission as to what the police "could have" done, for example investigatively detaining as opposed to arresting, does not assist in evaluating the constitutionality of what the police "actually did (i.e. arrest ...)": R. v. Turpin, 2012 SKCA 50, at paras. 78-80.
[37] In R. v. Chehil 2013 SCC 49, the Court set out the following at paragraphs 26 to 33:
Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances. In Kang-Brown, Binnie J. provided the following definition of reasonable suspicion, at para. 75:
The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.
Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.
The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. In spite of this reality, properly conducted sniff searches that are based on reasonable suspicion are Charter- compliant in light of their minimally intrusive, narrowly targeted, and highly accurate nature: see Kang-Brown, at para. 60, per Binnie J., and A.M., at paras. 81-84, per Binnie J. However, the suspicion held by the police cannot be so broad that it descends to the level of generalized suspicion, which was described by Bastarache J., at para. 151 of A.M., as suspicion "that attaches to a particular activity or location rather than to a specific person".
Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286, at para. 60. A police officer's grounds for reasonable suspicion cannot be assessed in isolation: see Monney, at para. 50.
A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a "generalized" suspicion because it "would include such a number of presumably innocent persons as to approach a subjectively administered, random basis" for a search: United States v. Gooding, 695 F.2d 78 (4th Circ. 1982), at p. 83. The American jurisprudence supports the need for a sufficiently particularized constellation of factors. See Reid v. Georgia, 448 U.S. 438 (1980), and Terry v. Ohio, 392 U.S. 1 (1968). Indeed, the reasonable suspicion standard is designed to avoid indiscriminate and discriminatory searches.
While some factors, such as travelling under a false name, or flight from the police, may give rise to reasonable suspicion on their own (Kang-Brown, at para. 87, per Binnie J.), other elements of a constellation will not support reasonable suspicion, except in combination with other factors. Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers only of generalized suspicion. The same is true of factors that may "go both ways", such as an individual's making or failing to make eye contact. On their own, such factors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arising when the same factor is simply one part of a constellation of factors.
Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.
Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. As Doherty J.A. found in R. v. Golub (1997), 1997 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 751, "[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable". This is self-evident.
[38] I agree with the position of the Crown on this issue. On the information the police had available to them and on the information that Cst. Gales was aware of, I am satisfied that the police had an objectively reasonable suspicion to follow the Applicant and continue their investigation that culminated in a traffic stop and a detention of the Applicant. The guiding legal principles support the action of the police in this matter. I am not satisfied that, in considering the totality of the circumstances, the Applicant’s Charter rights were breached pursuant to section 9.
Did the Police Violate Section 10(b)?
[39] Police officers are required to inform a suspect immediately upon detention of his rights to counsel. In R. v. Taylor, 2014 SCC 50 at paragraph 21 and 24 the Court states:
The purpose of the s. 10(b) right is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: Manninen, at pp. 1242-43. The right to retain and instruct counsel is also “meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40. Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy “is able to make a choice to speak to the police investigators that is both free and informed”: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25.
The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 2000 ABCA 301, 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.
[40] Section 10(b) of the Charter states:
Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right;
[41] In Doan, Justice Hill reviews the general principles at paragraph 83 as follows:
Whether or not the s. 10(b) Charter right of the two accused was breached again depends on evaluation of all the circumstances and the following general principles:
(1) the s. 10(b) right to counsel is intimately concerned with an individual's right against self-incrimination - a detainee facing significant legal jeopardy is in immediate need of legal advice - the s. 10(b) right allows a detainee to become conversant not only with his or her rights and obligations under the law but also to obtain advice as to how to exercise those rights: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 24, 26, 29, 36
(2) the informational and implementation components of the s. 10(b) Charter right arise immediately on detention "whether or not the detention is solely for investigative purposes": Grant, at para. 58; Suberu, at paras. 2, 37-40
(3) the immediacy of compliance with the s. 10(b) Charter obligations by the police exists "except in urgent or dangerous circumstances": R. v. Montgomery, 2009 BCCA 41, at para. 33
(4) in terms of the implementation obligation respecting a detained person, the police must provide him or her a reasonable opportunity to exercise the right and refrain from eliciting evidence from the person until he or she has had the benefit of that reasonable opportunity: Sinclair, at para. 27; Evans, at para. 42.
[42] In R. v. Amofa, 2011 ONCA 368 at paragraph 19, the court states:
The flow of the investigative detention, the arrest and the search was a dynamic process. Section 8 analyses ought not to be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture.
[43] I am not satisfied on a balance of probabilities that at the time of the initial brief interaction with Darren Burnett, which lasted about two minutes, the officers were required to provide to him his section 10(b) rights. The officers had an objectively reasonable suspicion to investigate this driver. When they initially spoke to the driver they told him the reason for the stop. Immediately upon being advised of the reason for the stop Darren Burnett voluntarily announced to the police, “that’s me.” The Applicant was then arrested and advised of his rights to counsel and cautioned.
[44] I cannot conclude that, on this very brief investigative interaction, the officers’ conduct amounted to a Charter violation.
Was the Inventory Search Authorized by Law?
[45] The Crown relies on section 221(1) of the Highway Traffic Act, R.S.O. 1990, c H.8 (“HTA”) as providing the police with statutory authority to tow the van and conduct an inventory search incidental to the towing. Section 221(1) of the HTA provides that:
(1) A police officer or an officer appointed for carrying out the provisions of this Act who discovers a vehicle apparently abandoned on or near a highway or a motor vehicle or trailer without proper number plates may take the vehicle into custody of the law and may cause it to be taken to and stored in a suitable place.
[46] The three leading authorities on police inventory searches of motor vehicles are Caselake, Wint, and Nicolasi. The defence relies primarily on Caslake, while the Crown relies primarily on Wint and Nicolosi.
[47] In R v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3 [Caslake], the Supreme Court of Canada considered the police authority to search a towed vehicle of an arrestee pursuant to an RCMP administrative policy. The accused was arrested after the police discovered nine pounds of marijuana hidden in a field close to where the accused was standing before he returned to his vehicle and drove away.
[48] The accused was subsequently transported to an RCMP detachment and his car was towed to a garage across the street. Approximately six hours later, one of the officers conducted an inventory search of the vehicle. He discovered $1400 in cash and a half gram of cocaine. The search was conducted pursuant to an RCMP policy that required that an inventory be taken of the condition and contents of a vehicle that has been impounded by the RCMP during the course of an investigation.
[49] Lamer J., writing for the majority, set out the following principles on the issue of inventory searches. First, he stated that a warrantless search is prima facie unreasonable, and the burden falls on the Crown to prove, on a balance of probabilities, that the search was reasonable. This requires that the search be authorized by law, that the law itself be reasonable, and that the search be carried out in a reasonable manner.
[50] In this case, the inventory search was not authorized by law, but was carried out pursuant to an RCMP policy. Therefore, the Crown was unable to point to any statutory authority for the search. Further, Lamer J. held that an inventory search of a vehicle in the context of an arrest cannot be justifiably carried out under any general common law power:
[A]n inventory search per se does not serve a “valid objective in pursuit of the ends of criminal justice”… in the context of an arrest such that it can be justifiably carried out under this warrantless common-law power. Its purposes relate to concerns extraneous to the criminal law. If the police feel the need to inventory a car in their possession for their own purposes, that is one thing. However, if they wish to tender the fruits of that inventory search into evidence at a criminal trial, the search must be conducted under some lawful authority (para 30).
[51] In R v. Nicolosi, 1998 2006 (ON CA), [1998] O.J. No. 2554, 110 O.A.C. 189 (Ont. C.A.) [Nicolosi], the accused was stopped after he was observed driving recklessly. Upon detaining him, the police discovered that his licence and registration were expired and that his licence plate did not have a proper validation sticker. A CPIC check further revealed an outstanding warrant for driving without insurance. The police arrested the accused and towed his truck to an impound yard.
[52] Pursuant to guidelines established by the chief of police, the officers first conducted an inventory search of the contents of the car to record any “loose property of apparent value” prior to impounding the vehicle. Upon searching the car, one officer discovered a loaded gun with the serial numbers effaced.
[53] The issue on appeal was whether the police violated the accused’s section 8 rights by using the impound report as a pretext to enter and search the car for contraband and other evidence. The Crown relied on s.221(1) of the HTA as furnishing the police with the statutory power to conduct the inventory search.
[54] Doherty J. set out the following principles. Firstly, he noted that individuals operating vehicles on public thoroughfares have a significantly reduced expectation of privacy; however, they do continue to have some expectation of privacy, which extends to a reasonable expectation that s/he will maintain possession and custody of the vehicle. Accordingly, police conduct that assumes possession and custody of the vehicle absent consent constitutes a seizure within the meaning of section 8 (para 9).
[55] Secondly, Doherty J. found that the criteria under section 221(1) of the HTA did empower the police to impound the accused’s vehicle because he did not have a proper licence plate. The purpose of section 221(1) was obvious in this regard – to ensure effective regulation of motor vehicles (para 12).
[56] In R v. Wint, 2009 ONCA 52, the appellant was stopped by police for stunt driving contrary to section 172(1) of the HTA, and a decision was thereafter made to impound his vehicle under section 172(5)(b), which reads:
(5) Where a police officer believes on reasonable and probable grounds that a person is driving, or has driven, a motor vehicle on a highway in contravention of subsection (1), the officer shall,
(b) detain the motor vehicle that was being driven by the person until it is impounded under clause (7) (b).
[57] Incidentally to impounding the accused’s vehicle, the police conducted an inventory search. In doing so, they discovered, inter alia, crack cocaine and marijuana in a black CD case inside a black bag on the floor. The appellant was charged with possession and possession for the purpose of trafficking, and the accused appealed on the ground that the police violated his section 8 Charter right.
[58] Writing per curiam, the Court reiterated the principle established by the SCC in Caslake - that seizing and impounding a vehicle requires the police to conduct an inventory search incidental to taking the vehicle into their custody, in order to preserve and ensure safekeeping of the vehicle and its contents. The Court further held that an inventory search requires the police to record not only objects found in a car but also their contents; this was said to accord with the underlying rational for inventory searches – being the safeguarding of property.
[59] I agree with the position of the Applicant on this issue.
[60] I find and conclude that the van was not apparently abandoned by Darren Burnett. I do not accept the testimony of the officers that they did not notice the van sticking out and impeding the roadway until after Darren Burnett was transported to the station. The police officers were with Darren Burnett and the van for about half an hour.
[61] They testified that the position of the van was a hazard, and yet for half an hour they were unaware of the hazard.
[62] At no time were efforts made to move the van or have someone pick it up. It would have been very easy and reasonable to simply ask Darren Burnett to pull the van ahead a bit more so it would be up against the curb and off the roadway.
[63] The officers concerns of flight are also not borne out. Darren Burnett pulled over with no hesitation or difficulty when signalled to do so. There was nothing revealed in the CPIC inquiry to suggest Darren Burnett was dangerous or a safety concern. The officers did not elaborate on why they thought he would be a flight risk or why he would cause any difficulties if he was asked to move his van ahead.
[64] Cst. Reis testified he was concerned with Darren Burnett and he did not know who else was in the van. The difficulty with this explanation is that they only saw one person in the van - the driver, Darren Burnett.
[65] Although Darren Burnett’s wife lived only one kilometre from the scene, she was not called to attend and pick up the van or make arrangements for someone else to do so. Nor was the registered owner called. It is important to note that at some point the wife did arrive at the scene, and the registered owner was contacted later that evening.
[66] Darren Burnett had a phone on him. It is not clear why he would not have been allowed to call someone to arrange to have the van picked up.
[67] The Applicant argues that the entire justification for the inventory search, namely abandonment, is a sham. The Applicant points to the fact that the concept of abandonment comes up for the first time at trial. It is not in the officers’ notes. The sole reason advanced by Cst. Reis to justify the search is abandonment and yet it is not recorded in his notes.
[68] I am satisfied on the evidentiary record before me that the van was not apparently abandoned. Darren Burnett had no choice but to leave the van where it was. He had been arrested.
[69] At no time did the officers advise Darren Burnett that their plan was to tow and search the van. At no time was Darren Burnett given an opportunity to make arrangements to have someone pick up the van. At no time did the officers make any effort to contact someone to pick up the van. At no time was Darren Burnett asked to simply move the van closer to the curb to remove it from the roadway.
[70] At no time did Darren Burnett have an intention to abandon the van. The officers cannot artificially create a situation of abandonment and then justify an inventory search after having done so.
[71] Again, it is important to note that there is no notation in the officers’ notes of the term abandonment. That term is used for the first time at trial by Cst. Reis as a justification for calling a tow truck and conducting an inventory search.
[72] I am not satisfied that the police officers acted reasonably in these circumstances. I find that the van was deliberately left on the roadway blocking the lane of traffic until Darren Burnett was taken into custody. I find it difficult if not impossible to understand how the officers would not have noticed or done something about this hazard on the roadway for a full half hour. It would have taken a matter of seconds to have Darren Burnett pull the van up tight to the curb out of any harm’s way. This is not a situation of a motor vehicle collision where vehicles cannot or should not be moved because doing so could compromise any investigation into the liability issues relating to the collision.
[73] I find that the abandonment was artificial and created in order to be able to search the van. This was a deliberate and flagrant disregard of the Applicant’s Section 8 Charter rights. I cannot accept Cst. Reis’ testimony that at no time did it cross his mind that there could be drugs in the van, especially in light of the reasons given by him as to why they were patrolling that area in the first place.
[74] Having concluded that the officers had no lawful authority to search the vehicle, any items obtained subsequently were obtained unlawfully. I am satisfied that the Applicant’s section 8 Charter rights were breached.
Section 24(2) R. v. Grant, 2009 SSC 32
Seriousness of the Breach
[75] In Grant, the Court sets out the following at paragraph 72 to 75;
The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.
This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.
State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.
Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, per Cory J. “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, 1989 109 (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, 1990 55 (SCC), [1990] 3 S.C.R. 3, at pp. 32‑33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.
[76] The Charter-infringing police conduct in this case was serious and deliberate. This strongly supports exclusion of the evidence.
[77] I found that the police artificially created a situation of abandonment to justify a search of the van. This conduct is serious and strongly supports exclusion.
The Impact of the Breaches on the Charter – Protected Interests
[78] I am satisfied that this line of inquiry supports exclusion.
Society’s Interest in Adjudication on the Merits
[79] The charges in this case are serious and this line of inquiry favours admission.
The Balancing of the Three Lines of Inquiry
[80] In R. v. Harrison, 2009 SCC 34, the Court stated the following at paragraph 39;
This case is very different. The police misconduct was serious; indeed, the trial judge found that it represented a “brazen and flagrant” disregard of the Charter. To appear to condone wilful and flagrant Charter breaches that constituted a significant incursion on the appellant’s rights does not enhance the long-term repute of the administration of justice; on the contrary, it undermines it. In this case, the seriousness of the offence and the reliability of the evidence, while important, do not outweigh the factors pointing to exclusion.
[81] The situation is the same in the case at bar. The seriousness of the charges and the reliability of the evidence do not outweigh the factors pointing to exclusion.
Conclusion
[82] The Application is allowed. The evidence is excluded.
Justice Joseph M. Fragomeni
Released: June 4, 2015
CITATION: Her Majesty the Queen v. Darren Burnett, 2015 ONSC 3586
COURT FILE NO.: CRIMJ(P) 761/15
DATE: 2015-06-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
DARREN BURNETT
REASONS FOR JUDGMENT
Fragomeni, J.
Released: June 4, 2015