ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 66/14
DATE: 2015/07/08
B E T W E E N:
Her Majesty the Queen
Peter Wenglowski, for the Crown
Crown
- and -
James Severy
Larry Lebovits, for the Accused
Accused
HEARD: June 29, 2015
Justice J. R. Henderson
PRETRIAL CHARTER MOTION
INTRODUCTION
[1] The accused, James Severy (“Severy”), is charged with three counts of possession of a Schedule I substance for the purpose of trafficking contrary to s.5(3)(a) of the Controlled Drugs and Substances Act.
[2] The three Schedule I substances in question, oxycodone, cocaine, and heroin, were seized after police officers stopped Severy’s vehicle, arrested Severy for driving while his licence was suspended, and then searched Severy’s person and his vehicle.
[3] In this pre-trial motion, defence counsel alleges that the conduct of the police officers constitutes a breach of Severy’s rights as set out in s.8, s.9, and s.10(a) of the Canadian Charter of Rights and Freedoms (“the Charter”). Accordingly, defence counsel requests an order that the drugs that were seized be excluded from the evidence at this trial pursuant to s.24(2) of the Charter.
THE FACTS
[4] At approximately 2:25 a.m. on April 10, 2014, Niagara Regional Police Officers Steven Phillips (“Phillips”) and Melissa Atamanyk (“Atamanyk”) were on routine patrol in downtown St. Catharines when the officers observed two male and two female persons exit the Mansion House Bar and walk toward a nearby parking garage.
[5] Phillips recognized one of the males as Jurrell Gaddishaw (“Gaddishaw”) and he was aware that Gaddishaw was subject to a recognizance that required him to abide by a curfew and required him not to attend places in which alcohol was sold. The other male person in the group was later identified as the accused, Severy.
[6] After the two male and two female persons walked into the parking garage, the two officers entered the parking garage in their police cruiser. At approximately 2:30 a.m. the two officers observed a grey Jeep Compass parked in the laneway of the garage and Gaddishaw standing beside the Jeep urinating against a wall. Atamanyk observed that Gaddishaw appeared to be talking to someone who was inside the Jeep.
[7] Phillips called out to Gaddishaw, causing Gaddishaw to flee on foot. Both Phillips and Atamanyk exited their cruiser and pursued Gaddishaw on foot, but were unable to apprehend him. At 2:32 a.m. Phillips radioed for other police officers to assist him in apprehending Gaddishaw.
[8] At 2:33 a.m. Phillips and Atamanyk returned to their cruiser, and at about the same time they observed the same grey Jeep leave the garage at a high rate of speed. Thereafter, the two officers engaged in a search of the area, in their cruiser, looking for Gaddishaw.
[9] At approximately 2:40 a.m. the two officers saw the same Jeep a few blocks away from the parking garage. The officers formed the belief that the Jeep was circling the area for the purpose of locating Gaddishaw and assisting him in escaping police.
[10] The officers attempted to stop the Jeep by activating the lights and siren on the police cruiser. The Jeep initially continued to move at a slow rate of speed, until the police cruiser pulled alongside of the Jeep and the officers verbally instructed the driver of the Jeep to pull over, which he did.
[11] When the officers exited their cruiser and approached the Jeep, they observed that the occupants of the Jeep were the same three people they had previously seen with Gaddishaw. Severy was seated in the front driver’s seat and the two females were in the back seat. The front passenger seat was vacant.
[12] Phillips asked the driver, Severy, to turn off the Jeep, exit the vehicle, and produce identification, which he did. The two females were also asked to exit the vehicle, which they did. Then, Phillips contacted the police dispatcher to check on Severy’s identification and determined that Severy’s driver’s licence had been suspended. At 2:43 a.m. Phillips arrested Severy for the offence of driving while under suspension.
[13] Phillips then conducted a search of Severy’s person incident to arrest and discovered a prescription bottle that contained seven pills that appeared to be oxycodone. At 2:47 a.m. Phillips arrested Severy for the offence of possession of oxycodone for the purpose of trafficking.
[14] By that time Officer Mike Landry (“Landry”) had arrived on the scene and was speaking to the two females at the curbside. Phillips asked Landry to look into the back seat of the Jeep to see if anyone else was in the vehicle. When Landry did so, Landry observed a white baggie on the floor behind the front passenger seat. The baggie was seized and it was later determined to contain a quantity of cocaine and heroin.
[15] Severy was subsequently arrested for the offences of possession of cocaine and heroin for the purpose of trafficking.
THE LAW
[16] The initial vehicle stop in this case was not a routine traffic stop for an alleged breach of the rules of the road. It was an investigative detention. That is, it was a stop, or a detention, by police for the purpose of locating and apprehending Gaddishaw who had fled from the police officers.
[17] Regarding investigative detention, in the case of R. v. Mann, [2004] S.C.R. 59, Iacobucci J. wrote the following at para. 34:
The case law raises several guiding principles governing the use of a police power to detain for investigative purposes….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.
[18] Further, at para. 45 of the Mann decision, Iacobucci J. wrote:
To summarize, as discussed above, police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner.
[19] During the course of an investigation a police officer is entitled to ask brief exploratory questions of persons who may have some knowledge of the matter under investigation without triggering the strict application of s.9 or s. 10 of the Charter. See the case of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras. 24 to 44.
[20] Further, during an encounter between a police officer and a citizen, a police officer is entitled to take modest reasonable steps to ensure officer safety. In that regard see the Mann decision at para. 43 and the excerpt from para. 45 of Mann quoted above.
[21] I accept that there is a police power to search incident to arrest. That power to search is a common-law power that does not require a warrant or reasonable and probable grounds. However, searches which derive their legal authority from the fact of the arrest must be “truly incidental” to the arrest in question. See the case of R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51 at paras. 13 to 25.
[22] A search incident to arrest may be extended to include a search of the accused’s vehicle if there is sufficient evidence to justify a search of the vehicle. See the Caslake decision at para. 26.
[23] Lastly, the federal prosecutor in this case relies upon the plain view doctrine. Where a police officer is lawfully positioned and discovers an incriminating item that is in plain view, then the officer is entitled to seize that item. In that regard see the case of R. v. Belliveau, 1986 88 (NBCA) and the case of R. v. Godoy, 1999 709 (SCC), [1999] 1 S.C.R. 311.
ANALYSIS
[24] I find that Gaddishaw was the subject of a recognizance that required him to abide by a curfew and to not attend places in which alcohol is sold. I find that Phillips recognized Gaddishaw exiting a bar in the early hours of the morning and reasonably formed a belief that Gaddishaw was in breach of his recognizance. On route to the parking garage, Atamanyk used the cruiser’s computer system to confirm the recognizance. Therefore, I find that the pursuit of Gaddishaw was a lawful criminal investigation undertaken by the two police officers.
[25] I find that in the early hours of April 10, 2014, there was a nexus between Gaddishaw, Severy, and the two females. Thus, in the pursuit of Gaddishaw it was reasonable for the two police officers to investigate the whereabouts and activities of all four of these individuals.
[26] Further, there was a nexus between Gaddishaw and the Jeep Compass. Gaddishaw was observed urinating in the parking garage beside the Jeep, and he was apparently talking to someone who was inside the Jeep. At that point I find that the police officers had reason to believe that the driver of the Jeep was waiting for Gaddishaw to get into the Jeep. The officers also had reason to believe that the occupants of the Jeep were the same people who had entered the parking garage with Gaddishaw only a few minutes earlier.
[27] Further, after Gaddishaw fled on foot, the Jeep left the parking garage at a high speed as if to flee the scene as well. Then, when the police officers were circling the area in search of Gaddishaw they observed that the Jeep also seemed to be circling the area as if to search for someone. Therefore, I find that the officers had reason to believe that the driver of the Jeep remained in the area for the purpose of locating Gaddishaw and assisting him in escaping police.
[28] For these reasons, I find that the police officers had a right to stop the Jeep in the course of their pursuit of Gaddishaw. The police stop of the Jeep was an investigative detention of the occupants of the Jeep, and as such it did not immediately trigger Severy’s rights under s.9 and s.10(a) of the Charter.
[29] The Jeep and these three individuals were all associated with Gaddishaw. Thus, once the Jeep had been stopped, as part of their investigation, I find that it was reasonable for the police officers to ask some exploratory questions of the occupants and ask the occupants to identify themselves.
[30] Further, I find that the request to exit the vehicle, the request for identification, and the subsequent police computer check of the identification were permissible actions for officer safety purposes.
[31] Thereafter, the arrest of Severy for driving while under suspension was lawful as it directly flowed from the information obtained by Phillips through the police dispatcher. The search of Severy’s person incident to the initial arrest was reasonable and lawful. That search led to Severy’s lawful arrest for possession of oxycodone for the purpose of trafficking.
[32] I find that Landry was entitled to look into the vehicle for two reasons. First, Landry was told by Phillips that the officers were looking for Gaddishaw who had fled police. Landry was thus entitled to look into the Jeep to ensure Gaddishaw was not curled up on the floor or in the hatch area. Second, because Severy would not be permitted to drive the Jeep, Landry was entitled to do a cursory visual inspection of the interior of the vehicle before the Jeep was impounded.
[33] When Landry looked into the Jeep, I accept that he observed a white baggie in plain view. Given that Severy had just been arrested for possession of oxycodone, Landry was entitled to seize and open the baggie.
SUMMARY AND CONCLUSION
[34] In summary, I find that the police stop of the Jeep was a lawful investigative detention of Severy and the two females in the Jeep, and that this investigative detention was reasonable in the course of the pursuit of Gaddishaw.
[35] I find that the officer’s request for identification was a reasonable aspect of the investigative detention. Moreover, the request to exit the vehicle, the request for identification, and the police computer check of the identification were reasonable actions for officer safety purposes. Therefore, I find that the police conduct prior to Severy’s arrest did not trigger the application of s.9 or s.10(a) of the Charter.
[36] Thereafter, the arrest of Severy, the search of his person, and the search of the Jeep all logically flowed from the initial reasonable conduct of the police officers. Consequently, the search of Severy’s person and the search of the Jeep did not constitute a breach of s. 8 of the Charter.
[37] Accordingly, I find that there has been no breach of the Charter, and the motion is dismissed.
Henderson, J.
Released: July 8, 2015
COURT FILE NO.: 66/14
DATE: 2015/07/08
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JAMES SEVERY
pretrial motion
charter application
Henderson, J.
Released: July 8, 2015