CITATION: R. v. Wilson, 2015 ONSC 4135

COURT FILE NO.: CR-482/13

DATE: 20150626

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

LEROY WILSON

Christopher Leafloor, for the Crown

Richard Stern, for the Accused

HEARD: June 22-24, 2015

KL.Campbell J.:

Ruling on Charter Application

A. Introduction

[1] If a police officer is able to look inside a motor vehicle parked on the side of a public street, and observe illegal contraband being bought and sold in a criminal drug transaction, is the observation by the police officer a “search” which must be reasonable within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms? That is the main issue raised by this application.

[2] The accused, Leroy Wilson, has pled not guilty to an indictment that charges him with the alleged commission of four criminal offences, namely: (1) trafficking in a controlled substance (cocaine), contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19; (2) possession of a controlled substance (cocaine) for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act; (3) possession of property ($80 in Canadian currency), knowing it was obtained or derived from the commission of an indictable offence, contrary to s. 355(b) of the Criminal Code, R.S.C. 1985, c. C-46; and (4) possession of property ($335 in Canadian currency, and $2 in United States currency), knowing it was obtained or derived from the commission of an indictable offence, contrary to s. 355(b) of the Criminal Code. All of these offences were alleged to have been committed by the accused in Toronto on September 1, 2012.

[3] Upon the agreement of the parties, the trial unfolded essentially as a blended proceeding. The Crown called the two Toronto Police Service (TPS) officers who were involved in the investigation and arrest of the accused. In cross-examining these two officers, defence counsel sought to demonstrate how they had violated the accused’s constitutional right to be free of unreasonable search and seizure, protected by s. 8 of the Charter of Rights. Defence counsel argued that, in the result, the evidence seized by the police should be excluded pursuant to s. 24(2) of the Charter of Rights. In cross-examining these officers, defence counsel also sought to reveal the frailties that allegedly undermined the credibility and reliability of their evidence. At the same time, the Crown tendered the testimony of these two police officers, and the physical evidence seized by these officers, ultimately arguing that this evidence was not only admissible, but proved the commission of the four alleged offences beyond a reasonable doubt.

[4] At the conclusion of the evidence, and after hearing the submissions of counsel regarding the Charter application brought on behalf of the accused, I advised the parties that I had reached the conclusion that all of the evidence that was obtained by the police on September 1, 2012 was admissible. I briefly explained that, in my view, the evidence was not obtained as a result of any violation of the accused’s constitutional rights as guaranteed by s. 8 of the Charter. I also indicated that I would provide reasons in support of that conclusion. These are those reasons.

B. The Relevant Facts

[5] Without reviewing all of the evidence of the two police officers in detail, and without resolving all of the small differences in their testimony, based upon their evidence, which I accept as credible and reliable, I find the relevant facts to be as follows.

[6] The accused was arrested at approximately 6:30 p.m. on Saturday, September 1, 2012. He was in the driver’s seat of his idling motor vehicle, a dark-blue Suberu, with tinted windows and black wheel rims, parked on the north side of Queen Street East, just west of the intersection of Seaton Street, in the city of Toronto. The vehicle was facing westbound, so the passenger side of the vehicle was next to the curb, and adjoining sidewalk area, on the north side of Queen Street.

[7] At that time, two TPS officers, namely, Cst. Chris Wilson and Cst. Bradley Payne, were on foot patrol, in full uniform, in the same general area. As the officers proceeded southbound on Seaton Street, approaching the intersection of Queen Street East, they recognized the accused’s Suberu vehicle. The officers were well-familiar with the vehicle, and knew that it was owned by the accused as a result of an earlier police stop of the vehicle. Cst. Wilson also recognized the license plates that were assigned to the vehicle. Cst. Wilson had earlier received information from a confidential source that the accused was engaged in drug trafficking and, in the result, he approached the parked vehicle from behind, on an angle. Cst. Wilson saw that the front passenger side window was all the way down. Cst. Payne followed a short distance behind.

[8] Ultimately, Cst. Wilson arrived in the “blind spot” on the passenger side of the vehicle, located at approximately the pillar, or “B Column,” between the front and back doors of the vehicle. Once he was in this location, he leaned forward, in a westerly direction, and turned his head to the left and peered inside the vehicle, through the open passenger window of the front door, and over the right shoulder of the passenger. As Cst. Wilson explained, he did not lean inside the vehicle through the window frame, but remained at all times entirely outside the vehicle. Initially, while Cst. Wilson was standing on the sidewalk right next to the curb where the vehicle was parked, the two men in the car did not detect his presence just outside the vehicle. Cst. Payne remained toward the rear of the parked vehicle.

[9] From his vantage point, Cst. Wilson observed what he believed to be an illegal hand-to-hand drug transaction take place between the accused, who was seated in the driver’s seat, and another man, Trevor Letlow, who was seated in the passenger seat. More particularly, Cst. Wilson saw Mr. Letlow “toss” some folded Canadian currency (with a $20 bill on the outside of the folded money) toward the accused, who appeared to have other funds fanned-out on his lap, together with a wallet. The officer also witnessed the accused immediately pass Mr. Letlow a small plastic package or baggie containing what Cst. Wilson believed was a quantity of crack cocaine, which Mr. Letlow accepted. Cst. Wilson was able to make these observations notwithstanding the fact that the passenger, Mr. Letlow, was a large, muscular man who wore his hair in a “short afro,” as Mr. Letlow had his passenger seat moved back in the car. Cst. Wilson agreed that this entire transaction likely took less than five seconds to complete.

[10] At that point, the men in the parked vehicle detected the presence of the police officer on the sidewalk, and Cst. Wilson told them that they were under arrest for trafficking in cocaine. He told the accused to turn off the engine of his vehicle, and he told both men to step out of the vehicle. Cst. Wilson and his nearby partner, Cst. Payne, then sought to quickly physically arrest the accused and Mr. Letlow as they exited from the parked vehicle. Cst. Wilson told Cst. Payne to arrest the accused, and saw him head toward the driver’s side of the vehicle, while he dealt with Mr. Letlow on the passenger side of the vehicle.

[11] When Cst. Payne arrived at the driver’s side of the vehicle, he noticed that the driver’s window was down. This permitted him to see inside the vehicle, and he recognized the accused as the driver of the vehicle. Cst. Payne also noticed that there was a quantity of Canadian currency on the lap of the seated accused, as well as a wallet. Cst. Payne told the accused to get out of the vehicle, and the accused quickly and cooperatively complied with this demand. As he was getting out of the vehicle, Cst. Payne seized the money and the wallet that had previously been on the accused’s lap.

[12] Initially, Mr. Letlow refused to provide Cst. Wilson with the small plastic baggie that the accused had provided to him. Rather, he kept it tightly grasped in his clenched fist. Indeed, Mr. Letlow refused to open his fist when Cst. Wilson demanded that he open his hand, and he steadfastly maintained his closed fist when Cst. Wilson tried to physically pry it open with his own hands. Seeing this struggle between Cst. Wilson and Mr. Letlow, Cst. Payne left his position with the accused, and came over to the passenger side of the vehicle to help his partner with Mr. Letlow. Eventually, after Mr. Letlow was handcuffed and physically taken to the ground by the two officers, Mr. Letlow released the plastic container of crack cocaine to Cst. Wilson. Subsequently, when the contents of this plastic baggie were analyzed, it was revealed to contain 0.61 grams of cocaine (and phenacetin, a “Schedule F” drug under the Food and Drugs Act, R.S.C. 1985, c. F-27).

[13] When Cst. Payne returned to the driver’s side of the vehicle, he formally arrested the accused, who had simply remained standing on the road by the open driver’s door. Cst. Payne then arrested the accused for trafficking in cocaine and possession of “proceeds,” and placed him in handcuffs.

[14] As Cst. Payne stood by the open driver’s door with the arrested accused, Cst. Payne observed, in plain view, in the pocket on the inside of the driver’s door by the armrest and door handle, a cell phone and small plastic baggie, which appeared to contain a quantity of crack cocaine. Cst. Payne seized this baggie incident to his arrest of the accused. Subsequently, when the contents of this plastic baggie were analyzed, it was revealed to contain 1.1 grams of cocaine.

[15] Cst. Payne also seized a total of $470 in Canadian currency (which included the $80 that Mr. Letlow paid the accused for his crack cocaine), and $2 in American funds, as well as two cell phones and two wallets.

C. Analysis

1. Introduction

[16] Defence counsel argued that, as the accused had a reasonable expectation of privacy with respect to his activities inside his automobile, the visual observations that were made by Cst. Wilson constituted a “search” within the meaning of s. 8 of the Charter and, because the officer lacked any reasonable and probable grounds that might have justified such an intrusion into the privacy interests of the accused, it was an unreasonable search in violation of s. 8 of the Charter. I disagree.

[17] In my view, the visual observations of Cst. Wilson as to the hand-to-hand drug transaction that he witnessed take place between the accused and Mr. Letlow, are not properly viewed as a “search,” as the accused had no reasonable expectation of privacy regarding his activities in his motor vehicle. The accused may have hoped to be able to complete his illicit sale of crack cocaine to Mr. Letlow undetected, from the comfortable confines of his motor vehicle, but in my view he had no reasonable expectation of privacy with respect to such activity, given the totality of the circumstances in which the activity took place.

2. No Reasonable Expectation of Privacy

[18] According to Cst. Wilson, whose testimony I accept, he observed a hand-to-hand drug transaction between the accused and Mr. Letlow, which involved Mr. Letlow purchasing crack cocaine from the accused. Cst. Wilson personally witnessed the commission of this offence when he looked inside the open passenger window of the accused’s vehicle. At the time he made this observation, Cst. Wilson was simply standing on the public sidewalk next to the accused’s parked, idling vehicle. Any curious member of the public walking by the accused’s parked car could have made the same observation. And just like any other member of the public, Cst. Wilson was lawfully entitled to stand on the public sidewalk on Queen Street East. Indeed, given his professional responsibilities for community policing in this neighbourhood, Cst. Wilson was obliged to patrol just such areas.

[19] In short, the observation by Cst. Wilson was made from a public place, what the officer saw was capable of being viewed by any other similarly positioned members of the public, and the officer used an investigative technique no more sophisticated or intrusive than his eyesight.

[20] Cst. Wilson was only able to see the illicit drug transaction in the Suberu because the accused and his customer elected to conduct their drug business in a public location, clearly assuming the risk that they might be seen by anyone passing by the vehicle on foot. There is no evidence suggesting that the accused had any subjective expectation of privacy in his activities within his parked automobile. He certainly did not testify to that effect.

[21] Considering the totality of the circumstances in this case, in my view, the observation by Cst. Wilson was simply not a “search” within the meaning of s. 8 of the Charter because the accused had no reasonable expectation of privacy in the interior of his motor vehicle, given that he had parked it right next to a public sidewalk, and left the windows of the vehicle open, thereby permitting anyone passing by to look inside the vehicle and observe the persons inside and their actions. See R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, at pp. 145-146; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at paras. 31-32; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at paras. 26-27. The judicial authorities that have considered this issue, both in Canada and the United States, provide strong support for this conclusion.

3. The “Plain View” Jurisprudence – Observations of Contraband in Motor Vehicles

[22] In R. v. Belliveau and Losier (1986), 1986 88 (NB CA), 75 N.B.R. (2d) 18, 30 C.C.C. (3d) 163 (C.A.), the accused were charged with the unlawful possession of tobacco in violation of provincial regulations. The investigation began when a police officer observed a van containing cartons of cigarettes parked in front of a gas bar and convenience store. The officer ultimately seized the van, and found that it contained 512 cartons of cigarettes. In considering the search and seizure issue raised by the case, Stratton C.J.N.B., delivering the judgment of the court, reviewed the important American jurisprudence articulating the scope of the “plain view” exception to the general warrant requirement. More particularly, at pp. 173-174, Stratton C.J.N.B. cited, with apparent approval, the following passage from the United States Supreme Court decision in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535:

[O]ur decisions have come to reflect the rule that if, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately ... This rule merely reflects an application of the Fourth Amendment’s central requirement of reasonableness to the law governing seizures of property. …..

The general public could peer into the interior of Brown’s automobile from any number of angles; there is no reason [the officers] should be precluded from observing as an officer what would be entirely visible to him as a private citizen. There is no legitimate expectation of privacy ... shielding that portion of the interior of an automobile which may be viewed from the outside the vehicle by either inquisitive passers-by or diligent police officers. In short, the conduct that enabled [the police officer] to observe the interior of Brown's car ... was not a search within the meaning of the Fourth Amendment.

[emphasis added]

[23] In R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615, the police stopped the accused’s motor vehicle at a random roadside check stop. While the accused provided his driver’s license and vehicle documentation, one of the officers, with the assistance of a flashlight, looked into the interior of the vehicle. This flashlight inspection revealed an open gym bag on the front seat of the vehicle next to the accused. After the accused was questioned about the contents of the bag, he eventually produced a plastic baggie that contained empty glass vials commonly used to store cannabis resin. Subsequently, believing that they had reasonable and probable grounds to believe that there were drugs inside the vehicle, the police conducted a search of the vehicle, and ultimately discovered a brown bag containing cannabis resin. One of the issues on the appeal was whether the initial visual inspection of the vehicle amounted to a search of the vehicle. Cory J., delivering the judgment of the Supreme Court of Canada, at pp. 623-624, appeared to reject the accused’s argument that the visual observations of the police constituted a search. More specifically, Cory J. stated that “[t]here can be no quarrel with the visual inspection of the car by police officers,” and concluded that, at night, such inspections “can only be carried out with the aid of a flashlight.” See also R. v. Belnavis, 1997 320 (SCC), [1997] 3 S.C.R. 341, at para. 57.

[24] In R. v. Lotozky (2006), 2006 21041 (ON CA), 81 O.R. (3d) 335, 210 C.C.C. (3d) 509 (C.A.), Rosenberg J.A., delivering the judgment of the court, at para. 13, citing Mellenthin, concluded that “[i]t seems that merely peering into a car window at night with the aid of a flashlight on a public highway is not a search.” Rosenberg J.A. also noted, however, it was “unclear” whether the police conduct in Mellenthin was not viewed by the court as a search “because there was no reasonable expectation of privacy or because the interference or intrusion was not sufficiently invasive.” Ultimately, at para. 19, Rosenberg J.A. stated that he tended to believe that, “merely tapping on the window, like peering into a window with a flashlight, does not involve a search.”

[25] In R. v. Mohamed, [2008] O.J. No. 3145 (S.C.J.), at para. 108, Bellamy J., after considering the decisions in Mellenthin and Lotozky, held that police conduct in looking through the windows of a motor vehicle, parked in a public parking area at night, with the aid of a flashlight, was not a search within the meaning of s. 8 of the Charter, given that what was seen by the police “was in plain view and clearly observable from outside the car”.

[26] In R. v. Shaw, 2010 ONSC 282, at para. 8, Wilson J. similarly concluded, citing Mellenthin and Mohamed, that while there is “no doubt that shining a flashlight into the window of a car is an investigation, and not a search,” as there is “no expectation of privacy in objects that are in plain view of the police.”

[27] This issue was thoroughly canvassed by the British Columbia Court of Appeal in R. v. Grunwald, 2010 BCCA 288, 257 C.C.C. (3d) 53, leave denied, [2010] S.C.C.A. No. 299. In that case the accused was convicted of the unlawful possession of 42 pounds of marihuana for the purpose of trafficking. The accused was driving a pickup truck that had a canopy with tinted windows when he was stopped by the police at a motor vehicle check stop. One of the police officers smelled marihuana while walking around the vehicle. When the officer looked into the back of the pickup through the tinted canopy window with his flashlight, he saw several garbage bags. One of the bags was open and it contained a bag of marihuana. One of the issues on the appeal was whether the visual observations of the officer, with the assistance of the flashlight, constituted a search that engaged the protection of s. 8 of the Charter of Rights.

[28] Bennett J.A., delivering the judgment of the court, concluded, at paras. 34-55, that this police conduct did not amount to a search as there was no “objectively reasonable expectation of privacy” in the circumstances, and that the marihuana was located in the truck in “plain sight” of the police officer. In this regard, at para. 36, Bennett J.A. noted that it is “well-established that there is a reduced expectation of privacy in a vehicle,” and driving is a heavily regulated activity and motorists should know that, while on the road, “they are subject to police stops, traffic cameras, streetlights, and the eyes of other curious drivers.” Further, Bennett J.A. concluded, at paras. 38-46, that the use of a flashlight did not transform the police officer’s visual inspection of the truck into a search of the vehicle. Ultimately, Bennett J.A. concluded, at paras. 52-53:

There is no doubt that Mr. Grunwald had an interest in keeping the contents of his truck bed hidden. The use of a canopy over the bed and tinting on the windows, as well as his choice to transport the marihuana at night all indicate that it was his intent to keep the contents of his truck bed private. However, he knew that it was possible to see through the windows, and that was a risk he took. A wish for privacy is not the same as an expectation. There was no subjective expectation of privacy in these circumstances.

Applying the relevant factors in Patrick, the only conclusion is that Mr. Grunwald had no reasonable expectation of privacy in the back of his truck.

[emphasis added]

[29] Most recently, in R. v. Ceballos, 2014 ONSC 2281, [2014] O.J. No. 1800, MacDonnell J. fully considered this same issue. In that case, when the accused was stopped by the police, one of the officers peered through the tinted rear window of the sport utility vehicle being driven by the accused and saw, in the cargo area of the vehicle, a chunk of a white powdery substance that the officer believed to be cocaine. The accused was placed under arrest and, in the subsequent search of the vehicle incident to that arrest, the police discovered 330 grams of cocaine. Defence counsel argued that the observation by the police officer that led to the arrest of the accused was an unreasonable, warrantless search in violation of s. 8 of the Charter. MacDonnell J. rejected this argument, concluding instead, at para. 72, that the judicial authorities support the conclusion that “peering through a car window, even a tinted window, and making observations of items that are in plain view within the vehicle does not intrude upon a reasonable expectation of privacy and is not a search.” After reviewing the decisions in Mellenthin, Lotozky, Mohamed and Grunwald, MacDonnell J. concluded, at para. 78, that the conduct of the police officer “in peering through the rear window of the SUV into the cargo area and observing the zip lock bag of cocaine on the floor did not amount to a search for the purposes of s. 8 of the Charter.”

[30] These are not the only judicial authorities that support this conclusion. See also R. v. Boersma, 1994 99 (SCC), [1994] 2 S.C.R. 488; R. v. Fitt (1995), 1995 NSCA 47, 139 N.S.R. (2d) 186, 96 C.C.C. (3d) 341 (C.A.), at paras. 10-17, and R. v. Kouyas (1994), 1994 NSCA 244, 136 N.S.R. (2d) 195, [1994] N.S.J. No. 567 (C.A.), at paras. 13-24, both affirmed, 1996 251 (SCC), [1996] 1 S.C.R. 70; R. v. Thongdara, [1995] O.J. No. 950 (Gen.Div.), at paras. 59-60; R. v. Gray, [1997] O.J. No. 3649 (Gen.Div.), at paras. 14-19; R. v. Robere (1999), 1999 19033 (NL CA), 181 Nfld & P.E.I.R. 292, [1999] N.J. No. 295 (Nfld.C.A.), at paras. 10-21; R. v. Biggs, [2015] O.J. No. 1334 (C.J.), at para. 58.

4. Academic Commentary – Summarizing the Law

[31] In their text, The Law of Search and Seizure in Canada (8th ed., 2010), authors J.A. Fontana and D. Keeshan, in their discussion of “plain view seizures,” at p. 670, observe that valid plain view seizures may arise in circumstances where the police officer has made “no entry onto premises, but the seizable items present themselves to his view (e.g., in the rear of a pick-up truck parked on a public street)” [emphasis added].

[32] The American jurisprudence under the Fourth Amendment reflects this same legal position. In his leading text, Search and Seizure, A Treatise on the Fourth Amendment (2015, 5th ed.), vol. 3, at § 7.5(a), Professor W.R. LaFave, in considering the application of the “plain view doctrine” in the context of motor vehicle searches, stated:

If the officer first stopped the car, this of course requires a determination as to the lawfulness of the stopping, but if the vehicle is parked on a public street or parking lot, then there is no doubt but that the officer may stand by and look into the vehicle just as any member of the public might.

[emphasis added]

[33] In support of this proposition, Professor LaFave cited all of the following authorities: Beachum v. United States, 19 A. 3d 311 (D.C.App., 2011); United States v. Jimenez, 864 F. 2d 686 (10th Cir., 1988); Smith v. Slayton, 484 F. 2d 1188 (4th Cir., 1973); State v. Bell, 215 N.W. 2d 535 (Wis., 1974); Moore v. State, 787 So. 2d 1282 (Miss., 2001), State v. Boyer, 42 P. 3d 771 (Mont., 2002); United States v. Allen, 573 F. 3d 42 (1st Cir., 2009); Hunt v. Commonwealth, 304 S.W. 3d 15 (Ky., 2009); Commonwealth v. McCree, 924 A. 2d 621 (Pa., 2007). See also Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022; Texas v. Brown, Horton v. California, 496 U.S. 128, 110 S.Ct. 2301.

5. Conclusion

[34] Defence counsel urged me not to follow this approach, represented most recently by the decision of MacDonnell J. in R. v. Ceballos, and conclude instead that the accused in the present case had a reasonable expectation of privacy in relation to his activities in his motor vehicle just prior to his arrest. I reject this submission. I see no reason to depart from such a well-established and persuasively reasoned line of Canadian and American judicial and academic authority. Indeed, I was provided with no authority to the contrary. Accordingly, based upon this state of the law, and considering the totality of the circumstances of this particular case, I must conclude the accused had no reasonable expectation of privacy regarding his observable drug-trafficking activities inside his motor vehicle, parked on the side of a public street. Therefore, as the observation by Cst. Wilson was not a “search,” it need not be measured against the reasonableness standard dictated by s. 8 of the Charter of Rights.

D. The Subsequent Searches and Seizures

[35] Defence counsel appropriately took an “all-or-nothing” approach to this application. He argued that, if the observation by Cst. Wilson was a “search,” it would have to be viewed as an unreasonable, warrantless search as the officer lacked any reasonable grounds to justify his observation of the interior of the accused’s motor vehicle. Defence counsel argued that, if the observation by Cst. Wilson was a violation of s. 8 of the Charter, the subsequent arrest of the accused was unlawful, and the searches and seizures that followed thereafter would also be in violation of s. 8 of the Charter. On the other hand, defence counsel fairly and candidly conceded that if the observation by Cst. Wilson was not a “search” within the meaning of s. 8 of the Charter, then the arrest of the accused and the subsequent searches and seizures of contraband from the accused and his motor vehicle would be lawful and not in violation of s. 8 of the Charter. This analytical approach stands to reason.

[36] Given my conclusion that the observation by Cst. Wilson did not constitute a search, the concession by counsel is applicable. In any event, I have no hesitation concluding that the evidence discovered and seized by Cst. Payne was properly and lawfully obtained either as incident to the lawful and constitutionally sound arrest of the accused, or pursuant to the plain view doctrine.

E. Conclusion

[37] In summary, as I indicated earlier, the evidence tendered by the Crown in this case is admissible. The application by the accused seeking the exclusion of this evidence under s. 24(2) of the Charter must be dismissed.

Kenneth L. Campbell J.

Released: June 26, 2015

CITATION: R. v. Wilson, 2015 ONSC 4135

COURT FILE NO.: CR-482/13

DATE: 20150626

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

LEROY WILSON

RULING ON CHARTER APPLICATION

K.L. Campbell J.

Released: June 26, 2015