ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-15-887
DATE: 20150716

BETWEEN:

Her Majesty the Queen

Ms Elizabeth Barefoot, for the Crown

• and -

Brendan Ritchie and
Phillip Lincoln Ritchie

Ms Sophia Newbould, for
Brendan Ritchie, Defendant
Mr. William Mathers, for

Phillip Lincoln Ritchie, Defendant

Defendants

HEARD: June 17 and 26, 2015

REASONS FOR DECISION – CHARTER APPLICATION

Conlan J.

I. Introduction

[1] This case, although not at all an example of bad faith on the part of the police, is indeed an illustration of an arbitrary arrest.

[2] Mr. Brendan Ritchie and Mr. Phillip Ritchie, each with separate counsel, are being tried before me, without a jury, in Owen Sound.

[3] The trial began with the hearing of a Charter Application filed by Brendan Ritchie (and only that accused). Evidence was called on a voir dire on June 17 (very briefly) and June 26, 2015.

[4] For the Crown, I heard from Detective Sergeant Mark Johnston (“Johnston”), an officer with the Ontario Provincial Police who was present at the scene just after a motor vehicle being driven by Phillip Ritchie and carrying Brendan Ritchie was stopped by the police in the Saugeen First Nation, Bruce County. I also heard from Detective Constable Mark Thompson (“Thompson”), an officer with the same police service who was one of two officers who stopped the subject motor vehicle. Finally, I heard from Provincial Constable David Grady (“Grady”), an officer with the same police service who was with Thompson.

[5] The Defence called no evidence on the voir dire. Submissions by counsel were heard at Court on June 26. The entire voir dire, including submissions by counsel, lasted less than one full day.

[6] At the conclusion of the arguments, I indicated that the Charter Application is granted; Brendan Ritchie’s arrest by the police was an arbitrary one and a breach of his section 9 Charter right; and all evidence obtained by the police as a result of the said violation (including the methamphetamine found in the pants pocket of Brendan Ritchie) is excluded from the trial, as against that accused, pursuant to subsection 24(2) of the Charter.

[7] The evidence on the voir dire was applied to the trial proper. The Crown then indicated that it was calling no further evidence at the trial against Brendan Ritchie and invited the Court to enter an acquittal for that accused on count 1 of the Indictment. That was done. The charges against Phillip Ritchie will be spoken to at the Assignment Court in Walkerton in September 2015, at which time dates for the trial will be set.

[8] I promised written reasons for my decision on the Charter Application filed by Brendan Ritchie. These are those reasons.

The Factual Background

[9] On May 22, 2014, as a result of solid confidential informant details, the police reasonably believed that Phillip Ritchie was in possession of methamphetamine (“meth”).

[10] Surveillance was initiated along the main highway (running east-west) through the Saugeen First Nation. Phillip Ritchie’s motor vehicle was spotted. The police conducted a traffic stop in a parking lot.

[11] At the time of the traffic stop, the police had absolutely no information about Brendan Ritchie. The police had absolutely no reason to suspect that the passenger in the car was Brendan Ritchie. The sole focus of the police investigation was Phillip Ritchie.

[12] What happened next is somewhat unclear. The three police officers were not entirely consistent in their accounts.

[13] According to Thompson, after the subject car was stopped by the police (at about 3:15 p.m. on May 22, 2014), he arrested Phillip Ritchie, who was the driver of the subject Oldsmobile Alero. Phillip Ritchie was arrested for simple possession of meth and on the strength of an arrest warrant for unrelated matters. Grady was interacting with the passenger (that male was unknown to Thompson at the time – it turned out to be Brendan Ritchie). At some point, Grady arrested Brendan Ritchie (when exactly that happened in the sequence of events in the parking lot is unknown to Thompson). Because Grady seized from Brendan Ritchie’s person 30.2 grams of meth, Johnston (who had arrived on scene within seconds of Phillip Ritchie being arrested) instructed Thompson to arrest Phillip Ritchie for possession of meth for the purpose of trafficking. Incidental to the arrest of Brendan Ritchie, Thompson did a cursory search of a cell phone seized from Brendan Ritchie. An incriminating text was observed with a stamp of 3:15 p.m. on May 22; it read “just wait, there’s cops at the fire hall corner”. That cell phone was later searched more thoroughly under warrant.

[14] No drugs were found on the person of Phillip Ritchie. No drugs were found in the car. Phillip Ritchie’s wallet was seized and found to contain what Thompson believed was a debt list.

[15] According to Grady, he arrested Brendan Ritchie at 3:16 p.m. The arrest was for possession of meth for the purpose of trafficking. The arrest was based on something told to Grady by Thompson, prior to the stop of the car.

[16] I pause here to reiterate that the police had nil information about Brendan Ritchie before he was arrested by Grady.

[17] According to Grady, it was Johnston who told him to arrest Brendan Ritchie. Grady testified that Johnston pointed at the male who turned out to be Brendan Ritchie and said “arrest that guy/man for p for p meth” or words to that effect.

[18] After the arrest, Grady then searched Brendan Ritchie. About 30 grams of meth were found in the pocket of Brendan Ritchie’s cargo pants.

[19] According to Johnston, the most experienced and highest ranking police officer of the three who testified, when he arrived on scene, Thompson and Phillip Ritchie were standing outside the driver’s door of the car that had been stopped, while Grady and the male who turned out to be Brendan Ritchie were standing outside the passenger door. Thompson advised Johnston that both males had been arrested for simple possession of meth. Grady showed the bag of meth to Johnston that had been seized from Brendan Ritchie. Because of its quantity, Johnston instructed Thompson and Grady to arrest the two males for possession of meth for the purpose of trafficking.

II. The Charges and the Basic Legal Principles

[20] There is no need, at this stage, to review the essential elements of the offences, however, it is important to know something about the charges.

[21] This is a two-count Indictment (though Brendan Ritchie faces just one charge). It reads as follows.

Brendan Ritchie and Phillip Lincoln Ritchie stand charged that, on or about the 22nd day of May, 2014 at the First Nation of Saugeen in the County of Bruce in the Judicial Region of Central West, did possess a substance included in Schedule I to wit: Methamphetamine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.

AND FURTHER THAT Phillip Lincoln Ritchie stands charged that, on or about the 22nd day of May, 2014 at the First Nation of Saugeen in the County of Bruce in the Judicial Region of Central West, did being at large on his recognizance given to by a Justice and being bound to comply with a condition of that recognizance directed by the said Justice fail without lawful excuse to comply with that condition to wit: not to possess, ingest, inject any drug, controlled substance or precursor except in accordance with a medical prescription, contrary to section 145(3) of the Criminal Code.

Presumption of Innocence

[22] Ultimately, it is the burden of the Crown to prove, beyond a reasonable doubt, each essential element of each offence against each accused person.

[23] For Phillip Ritchie, the verdicts need not necessarily be the same across the counts. And the verdicts need not be the same for both accused within the charge that they face jointly.

[24] Each accused is presumed to be innocent of the charge(s) against him. He has no burden of proof with respect to the merits of the charge(s). That rests entirely with the Crown.

[25] Regarding the Charter Application, however, the burden is on Brendan Ritchie, on a balance of probabilities, to establish a violation and to establish a remedy under subsection 24(2).

III. The Issues to be Decided on the Voir Dire

[26] The first issue to decide is whether the arrest of Brendan Ritchie was a lawful one. Were there reasonable and probable grounds for that arrest?

[27] The second issue for determination is whether, assuming that a violation of section 9 of the Charter has been found, some or all of the evidence arising therefrom ought to be excluded from the trial, as against Brendan Ritchie, pursuant to subsection 24(2) of the Charter.

IV. The Positions of the Parties on the Voir Dire

The Crown

[28] The Crown did not concede the section 9 Charter issue, however, the Crown, understandably, focused its submissions on subsection 24(2). On balance, argues the Crown, if a violation is found, the evidence ought not to be excluded from the trial.

Brendan Ritchie

[29] Counsel for the Applicant argues that the arrest of Brendan Ritchie was completely arbitrary. I agree. And at least two of the three factors under the Grant analysis pertaining to subsection 24(2) favour exclusion of the evidence. Again, I agree.

V. Analysis of the Charter Issues

The Law

Arrest

[30] Everyone has the right not to be arbitrarily detained (or arrested) – section 9 of the Charter.

[31] There is no question that Brendan Ritchie was arrested by the police without a warrant.

[32] The issue is whether the warrantless arrest was a lawful one.

[33] In terms of the governing legal principles, much of the following is borrowed from my decision in R. v. Dhillon, [2014] ONSC 6287.

[34] An arresting police officer must subjectively have reasonable and probable grounds to make the arrest. In addition, those grounds must be objectively justifiable. In other words, a reasonable person placed in the position of the officer must be able to conclude that there were reasonable and probable grounds for the arrest. What is not required is anything more than reasonable and probable grounds, and in particular, the police are not required to have a prima facie case for conviction before they can make an arrest. R. v. Storrey, 1990 125 (SCC), [1990] S.C.J. No. 12, at paragraph 17.

[35] The totality of the circumstances must be considered in examining whether there were reasonable and probable grounds for the arrest. Intuition or a good hunch on the part of the police is not enough. A lawful arrest cannot be based on speculation or a mere possibility. R. v. Malapan, [2013] A.J. No. 1484 (Q.B.), at paragraphs 38-39.

Remedy

[36] Turning now to the issue of remedy where a violation of a Charter right is found, section 24(2) states that “[w]here, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.

[37] In R. v. Newton and Molody, 2015 ONSC 1348, at paragraph 46, I summarized the required analysis under subsection 24(2) in the following way. There are three lines of inquiry. First, an examination of the seriousness of the Charter-infringing state conduct. There is a spectrum, from inadvertent or minor violations to wilful or reckless disregard for the constitutional rights of an accused person. The question is whether admission of the evidence would send the wrong message to society that the courts condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. Second, an evaluation of the impact on the Charter-protected interests of the accused. The more serious the impact, the greater the risk that admission of the evidence would breed public cynicism and bring the administration of justice into disrepute. Third and finally, an assessment of society’s interest in the adjudication of the case on its merits. The more reliable the evidence is and the more important it is to the case for the prosecution, the greater the chance that the evidence will be admitted. The question is whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence. R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

Factual Findings and Legal Conclusions

The Arrest of Brendan Ritchie – section 9 of the Charter

[38] Thompson does not know when exactly Brendan Ritchie was arrested by Grady. I give Thompson credit for being candid in that regard. It is understandable as Thompson was dealing with Phillip Ritchie.

[39] Johnston says that Brendan Ritchie had already been arrested for simple possession of meth before he instructed that both males were to be arrested for possession of meth for the purpose of trafficking.

[40] Grady, on the other hand, states that he arrested Brendan Ritchie only once, at the instruction of Johnston, for possession of meth for the purpose of trafficking.

[41] Either way, the arrest of Brendan Ritchie was clearly arbitrary.

[42] Either (i) Brendan Ritchie was initially arrested by Grady for simple possession of meth, based on nil grounds, searched and then arrested for the more serious charge of possession for the purpose of trafficking (Johnston’s version), or (ii) Brendan Ritchie was arrested for possession of meth for the purpose of trafficking, based on nil grounds (Grady’s account).

[43] It is unnecessary for the Court to resolve the conflict. Both scenarios involve the arrest of Brendan Ritchie based on, essentially, nothing.

[44] If Johnston’s version is correct, then Grady arrested Brendan Ritchie for simple possession of meth immediately after the car was stopped. At that time, Grady knew nothing about Brendan Ritchie. Grady had no information about Brendan Ritchie. There does not appear to have been a plan by the police to arrest anyone except Phillip Ritchie. Grady had not even subjective grounds for the arrest of Brendan Ritchie. Grady said nothing during the hearing as to whether or why he believed that Brendan Ritchie was in possession of meth.

[45] If Grady’s version is correct, then he arrested Brendan Ritchie for possession of meth for the purpose of trafficking at the command of Johnston and based on something told to Grady by Thompson earlier in the day. The problem is that Thompson would not have told Grady a single thing about Brendan Ritchie as the sole focus was Phillip Ritchie. And Johnston would not have known a thing about Brendan Ritchie either, making it impossible for Grady to have effected the arrest of Brendan Ritchie based on Johnston’s reasonable and probable grounds.

[46] Objectively, under either version of events, the arrest of Brendan Ritchie was totally arbitrary. It was based on nil information and nil evidence except for the single fact that he happened to be in a car with Phillip Ritchie who was believed to be in simple possession of meth and was wanted on an arrest warrant. That is the sum total of the reasonable and probable grounds for the arrest of Brendan Ritchie. I am not sure that amounts to even a hunch that Brendan Ritchie had committed or was committing a crime, and we know that a mere hunch is not enough.

[47] The only way that the arrest of Brendan Ritchie might be found to not have been arbitrary would be for the Court to cherry-pick parts of the evidence of Johnston and Grady and then cobble together a sequence of events that is consistent with neither but which helps the Crown. I decline to do so.

[48] For example, I could reject Johnston’s evidence that Brendan Ritchie had already been arrested for simple possession of meth, and then I could accept Johnston’s evidence that he observed the quantity of meth before instructing the two other officers to arrest the male parties for possession of meth for the purpose of trafficking (which would mean that I would have to reject the evidence of Grady that he found the meth on the person of Brendan Ritchie only after he arrested him for possession for the purpose of trafficking), and then perhaps I could find a way to explain how it could be that Johnston saw the meth without Grady having searched Brendan Ritchie to find it, and then maybe the case would get closer to a lawful arrest of Brendan Ritchie.

[49] In any event, it would be a stretch to say the least. I am of course entitled to accept all, some or none of what a witness says, however, not even the Crown could string together the links to clearly explain how the arrest of Brendan Ritchie was with reasonable and probable grounds.

[50] The police violated Brendan Ritchie’s section 9 Charter right.

Exclusion of Evidence – subsection 24(2) of the Charter

[51] This was a serious violation of Brendan Ritchie’s constitutional right to be free from arbitrary arrest. I find no bad faith on the part of the police, however, a message must be sent that the police cannot randomly arrest everyone in a motor vehicle just because the driver is believed to be in simple possession of narcotics.

[52] It might be different if the police had information that Phillip Ritchie had a habit of having his passenger act like a mule and carry the drugs on him/her. Or it might be different if the police had information about Brendan Ritchie himself. Or it might be different if the police had reasonable and probable grounds to believe that Phillip Ritchie had a relatively large quantity of narcotics inside the car and was in possession of those for the purpose of trafficking, facts that likely would have been known to the passenger. Or it might be different under a myriad of other factual matrices, however, on these facts the arrest of Brendan Ritchie was completely arbitrary and without either subjective or objective reasonable and probable grounds.

[53] The first factor under the Grant analysis strongly favours exclusion of the evidence.

[54] The second factor also strongly favours exclusion of the evidence.

[55] The impact on Brendan Ritchie was major. He was physically restrained and personally searched. His liberty was curtailed. His cell phone was seized and searched.

[56] The third factor is largely neutral. The charge against Brendan Ritchie is serious. Meth is a hideous substance. The evidence is crucial to the Crown’s case and is generally reliable. But the breach is serious enough and the impact on Brendan Ritchie is significant enough that the truth-seeking function of the criminal trial process must give way to the need for the Court to dissociate itself from what happened with Brendan Ritchie.

[57] In any event, even if the third factor is viewed as being in favour of admitting the evidence, on balance overall, the evidence must be excluded as against Brendan Ritchie. The administration of justice would otherwise be brought into disrepute.

[58] The Crown submits that the evidence ought to be admitted because it would have been discovered by the police even absent the arbitrary arrest of Brendan Ritchie, if so found by the Court.

[59] It is true that Thompson testified that he likely would have searched Brendan Ritchie if Phillip Ritchie had been arrested and searched and no drugs were found in his possession or inside the car.

[60] In my view, that testimony from Thompson does not aid the police or the Crown.

[61] Ms. Barefoot pointed the Court to no authority for the proposition that, where one occupant of a motor vehicle is arrested for simple possession of narcotics, every person inside the car can be lawfully and automatically searched incidental to that arrest. To my knowledge, such a blanket practice is not permissible.

[62] The meth inside Brendan Ritchie’s pants pocket would not have been inevitably discovered, lawfully, absent the arrest of Brendan Ritchie.

VI. Decision on the Pretrial Application

[63] For all of the foregoing reasons, the Charter Application is allowed. Brendan Ritchie’s arrest was arbitrary and in violation of his section 9 Charter right.

[64] Pursuant to subsection 24(2) of the Charter, all of the evidence obtained by the police as a result of the search of Brendan Ritchie after his arrest, including the 30 grams or so of meth and the cell phone, are excluded from the evidence at trial as against Brendan Ritchie.

[65] The evidence on the voir dire is applied to the trial proper. The Crown calling no further evidence against Brendan Ritchie, a verdict of not guilty is entered for Brendan Ritchie on count 1.

[66] The charges against Phillip Ritchie, alone, are adjourned to the Assignment Court in Walkerton in September 2015 to set dates for trial.

Conlan J.

Released: July 16, 2015