ONTARIO

SUPERIOR COURT OF JUSTICE

OTTAWA COURT FILE NO.: 14-573

DATE: October 7, 2015

B E T W E E N:

HER MAJESTY THE QUEEN

Anya Kortenaar, for the Respondent Her Majesty the Queen

Respondent

• and -

DARREN PEARCE

Paul Lewandowski for the Applicant

Applicant

HEARD: August 26, 2015

REASONS FOR DECISION

James, J

Introduction

[1] These are my reasons for decision in connection with the defence application to exclude evidence that the applicant says was obtained in contravention of his Charter rights. The evidence in support of the prosecution’s case against the applicant is overwhelmingly strong. If the impugned conduct does not result in the exclusion of evidence, there is little doubt that the applicant will be unable to avoid a conviction for armed robbery.

Facts

[2] On May 26, 2014 at approximately 1:45 a.m. a robbery occurred at a Mac’s Milk convenience store on Raglan Street in Renfrew, Ontario. The robbery was perpetrated by a lone male approximately 5 feet 6 inches in height with a medium build. He threatened the female store clerk with a six inch folding knife and nicked her with the blade while waving it about. The robber was wearing a baseball cap, black clothing, sunglasses and black running shoes with white trim. The lower half of his face was covered. He told the store clerk to fill a duffel bag with money from the cash registers. The robber also placed cartons of cigarettes in the duffel bag. On the floor were two plastic tote bins filled with cartons of cigarettes. The robber left the store with one of the bins. It was red and had the words “No Frills” written on it.

[3] The police were notified of the robbery at approximately 1:52 a.m. Constable Sean Smith of the Renfrew O.P.P. responded to the call. He arrived at the convenience store at 2 a.m.

[4] Constable Sarah Turcotte was also on duty that morning. She arrived at the convenience store between 2:15 and 2:20 a.m. after having initially patrolled around the area. The two police officers viewed the store surveillance video together. Constable Smith then left the store and began patrolling the area, looking for anyone matching the description of the suspect and for vehicles in the vicinity that might provide information.

[5] At about 2:30 a.m. Constable Turcotte left the store and a few minutes later stopped at an all-night gas bar and spoke with the clerk on duty. She also spoke with a taxi driver who was obtaining fuel.

[6] At about 2:43 a.m. Constable Smith stopped the first vehicle that he had seen since commencing his patrol of the area. He asked the driver, Kadie Gilmour, for her papers. The applicant was sitting in the front passenger seat and a third person, Darren Chalmers, was sitting in the rear passenger seat. He asked the occupants to get out of the car. He said he noticed that the applicant’s height matched the height of the robber. By way of comparison, Darren Chalmers was taller at about 6 feet. On request, both occupants identified themselves with Ontario health cards and verbally disclosed their addresses. The applicant said he lived at 316 Ravine Drive, Renfrew. Constable Smith returned to his patrol vehicle where he verified their names on the CPIC data base. He received information that the applicant had two prior convictions for robbery.

[7] According to Constable Turcotte, she arrived as Constable Smith was returning to the Gilmour vehicle after having obtained the CPIC information, Constable Smith said Turcotte had not yet arrived. Constable Smith said he requested the applicant to get out of the car again and he was taken to the back of the car to separate him from the others. By this time both officers agree that Constable Turcotte had arrived. The officers re-interviewed the applicant. Constable Smith noticed that the applicant had a fresh cut on his hand that was bleeding and he asked the applicant how he had sustained the cut. They asked where he had been that evening. Constable Smith mentioned that a robbery had occurred at the Mac’s Milk and asked the applicant if he had been there. One of the officers asked the applicant if his fingerprints were going to be found around the till area. The police did not inform the occupants of their rights to counsel. After they completed interviewing the applicant, they asked the driver for permission to look in the trunk of the car, which permission was given. The trunk did not contain any items of interest.

[8] At 3:15 a.m. the officers let the vehicle drive away and none of the occupants were arrested.

[9] A short time later the police officers attended at 316 Ravine Drive. The applicant’s grandfather, George Pearce, greeted them at the door and permitted them to search the house including the applicant’s room in the basement. The police noticed a red “No Frills” tote bin in the applicant’s room, black clothing and black shoes with white trim.

[10] Subsequently the police obtained and executed a search warrant at 316 Ravine Drive. They kept the house under surveillance until the search warrant was executed. While waiting, the police observed the applicant attempting to enter the house through a basement window. He was arrested for armed robbery at 10:52 a.m. on May 26th. His cell phone was seized by police. During the execution of the search warrant the police seized the “No Frills” tote bin from the applicant’s room. They also seized the black running shoes with white trim.

[11] On May 29th, 2014 the applicant’s grandfather contacted police and advised them that he had located an Adidas duffel bag stuffed in a closet in a spare room in the basement beside the room occupied by the applicant. Inside the duffel bag he found cartons and packs of cigarettes and a white sock filled with $26 of loose change. Mr. Pearce delivered these items to the police. Mr. Pearce also confirmed that the applicant owned a folding knife with a six inch blade.

[12] The manager of the Mac’s Milk subsequently confirmed that the brands of cigarettes found in the duffel bag matched the brands listed as missing as a result of the robbery.

[13] After his arrest, the applicant’s cell phone was searched pursuant to another search warrant and incriminating text messages were found.

Position of the Applicant

[14] The applicant says that the initial roadside stop was arbitrary and unlawful. As a consequence, all subsequently-obtained evidence should be excluded.

[15] The applicant’s section 8 rights regarding unreasonable search and seizure were violated when the police stopped the vehicle. The protection of section 8 encompasses more than a traditional search and is engaged here by the police questioning of the applicant.

[16] The police request that the applicant identify himself, even though he was merely a passenger, the requirement that he exit the vehicle and answer questions about his whereabouts that evening, contravened sections 7 and 8.

[17] The police contravened section 10(a) when they failed to disclose that they were investigating a robbery.

[18] Section 10(b) was violated when the police failed to give a caution respecting the applicant’s right to counsel.

[19] Finally, the multiple Charter breaches constituted a violation of the applicant’s section 10(a) and 10(b) rights which in turn generated- perhaps precipitated- a section 11(c) breach where the applicant’s statements and actions now form the bulk of the Crown’s case against him.

Position of the Respondent

[20] Crown counsel concedes that the applicant was detained at the roadside but says the detention was not arbitrary. The police have a common law power to stop motorists and pedestrians in the vicinity of the robbery to investigate the crime. Although the subject vehicle was stopped nearly an hour after the robbery, it was stopped near where the store had been robbed and it was the first vehicle Constable Smith encountered after leaving the convenience store. The fact that it was around 2:45 a.m. on a Monday morning meant there was very little, if any, traffic on the roads at that time.

[21] The continued detention was lawful because the police had a reasonable suspicion that the applicant may have been involved in the robbery which justified an investigative detention.

[22] Crown counsel says that the applicant was not searched within the meaning of section 8. Utterances are not “searches”. The applicant was not searched or patted down at the roadside and the Crown does not seek to adduce any utterances into evidence at trial nor tender any evidence from the trunk of the car.

[23] Crown counsel says the section 10(a) requirement to advise the applicant for the detention need not be done in a formal way so long as the detainee is advised in a general way about the nature of the investigation. Constable Smith mentioned the robbery early on in his inquiries of the applicant but not at the outset.

[24] Crown counsel admits the applicant’s section 10(b) rights were violated and consequently does not seek to tender the conversation between the applicant and the police at the roadside.

[25] Crown counsel says that the applicant has provided very little detail to support the alleged breaches of section 7 and 11(c) and that this part of the application ought to be struck for lack of particulars.

[26] Lastly, Crown counsel says any breach ought to be saved under section 24(2) because the evidence (except for the roadside utterances) that was discovered was too remote from the breach. There was insufficient temporal and causal connection because of the intervening conduct of the applicant’s grandfather and the obtaining of the search warrants.

Discussion and Analysis

[27] The roadside stop was lawful. The police were engaged in their common law duty to investigate the recent robbery in the vicinity. The locale and the time of day made it obvious there would be little or no traffic. The Gilmour vehicle was stopped within several hundred meters of the convenience store, certainly less than one kilometer. Too much time had passed to qualify as hot pursuit but Constable Smith testified that he stopped the first vehicle he saw after leaving the store which, as it turned out, was almost an hour after the robbery. The police were entitled to conduct an investigative detention of the vehicle and its occupants. This included requesting the name and address of the occupants. The applicant matched the build of the robber. The CPIC information disclosed the applicant’s prior record for robbery.

[28] It is not clear at what point Constable Smith disclosed any information regarding the reason for stopping the vehicle. The applicant testified that he provided his address and gave an explanation of his whereabouts earlier that evening before Constable Smith mentioned the reason for the stop. Constable Smith said he told the applicant he was investigating a robbery but is not sure exactly when he made this disclosure. He agreed that it may have been after obtaining the applicant’s name, address and an explanation of what he had been doing that evening. He agreed that he did not give a section 10(b) caution at any time.

[29] While the police were justified in making the initial stop, there was a corresponding duty to inform the occupants the reason for the stop. Constable Smith was an experienced police officer. He recognized the applicant’s name. He said he knew who the applicant was. I infer from all the circumstances that Constable Smith intentionally delayed referring immediately to the robbery because he wanted to avoid spooking the applicant into silence. Constable Smith did not inform the applicant promptly of the reasons for his detention in contravention of section 10(a). This was in addition to his admitted failure to inform the applicant of his right to speak to a lawyer.

[30] At the hearing of this application, counsel for the applicant did not press his argument under section 8, unreasonable search and seizure. Contrary to paragraph 44 of the applicant’s factum, the applicant was not searched “at the roadside prior to and incident to his arrest”. Also, I accept the submission of Crown counsel that the section 7 argument should fail for lack of particulars.

[31] As for the claim for relief under section 11(c), it is clear that this relates to testimonial compulsion only and is therefore not applicable on these facts.

[32] I turn now to the more difficult problem of the potential exclusion of evidence due to the breach of section 10. The suggestion of Crown counsel- to exclude what the applicant told police at the roadside but not the subsequent derivative evidence- could be seen as failing to recognize that all the consequences for the applicant flowed from the address he gave to the police at the outset of the interaction.

[33] Applying the three part test from R. v. Grant, (2009), 2009 SCC 32, 66 C.R. (6th) 1 (S.C.C.) to determine whether the evidence obtained in breach of the Charter ought to be excluded, the first stage involves an assessment of the seriousness of the offending conduct. As previously indicated, my view is that Constable Smith intentionally delayed referring to the robbery in an effort to elicit more information in circumstances where he knew he had a duty to promptly inform the occupants of the vehicle of the reason he had stopped the car. In addition he failed to provide a caution with respect to the right to counsel. Deliberate police conduct in violation of established Charter standards tends to support exclusion.

[34] The second stage calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. There are a couple of ways to look at this factor. The applicant says that all the negative consequences that resulted from the disclosure of his address ought to be taken into account. If he had been properly cautioned, he may not have provided his address in which case the police would not have gone directly to his grandfather’s house, would not have gained access to his room, would not have seen the incriminating evidence and would not have had sufficient basis to obtain the search warrants.

[35] Crown counsel argues that the evidence discovered by the police was not causally-linked to the simple act of providing an address during the investigative detention. The decision of Mr. Pearce to allow the police access to the house was an intervening event unrelated to the Charter breach. The connection between the applicant providing his address and the subsequent permission for the police to gain access to his room is too remote.

[36] Regarding the evidence found on the applicant’s cellphone which was seized when he was arrested and later searched under the authority of a warrant, Crown counsel submits that there is a clear break in the causation and the cellphone is only tenuously linked to the roadside stop.

[37] I have considered the recent decision of our Court of Appeal in R. v. Wong, 2015 ONCA 657. Firstly, Strathy C.J.O. reinforces the principle, following Grant, that the duty to inform a detained person of his or her right to counsel must be satisfied immediately, not after a brief interlude (para. 67). Secondly, while Strathy C.J.O. found that the failure to give a detainee a section 10(b) warning warranted the exclusion of evidence found with the help of the detainee, the Charter-infringing conduct in Wong was more directly connected to the discovery of incriminating evidence. There the detainee led the police officer to a drawer containing a quantity of marijuana she said belonged to her boyfriend then into the bedroom to a duffel bag containing fifteen packages of a powder suspected to be a narcotic.

[38] Crown counsel relies upon the Supreme Court of Canada decision in R. v. Goldhart, 1996 214 (SCC), [1996] S.C.J. No. 76 in support of the proposition that evidence is not to be excluded even if obtained in a manner that breaches the Charter where the linkage between the Charter-infringing conduct and the obtaining of evidence is too tenuous or too remote. Strictly speaking, this analysis may more properly be seen as a threshold issue, that is, whether the evidence was obtained in a manner that infringed the Charter, rather than a factor to be taken into account in the weighing process under section 24(2), but in either situation Goldhart makes an important contribution to the discussion.

[39] Goldhart was charged with possession and cultivation of narcotics as an occupant of a building containing a large-scale commercial grow-op. Gerald Mayer, one of the occupants of the converted schoolhouse that housed the operation, was also charged. The charges were based on the results of a search where the warrant was subsequently found to have been improperly obtained. Mayer decided to plead guilty and testified at the trial. Mayer’s evidence was essential to the prosecution of Goldhart. Mayer’s decision to plead guilty and to testify against Goldhart followed his arrest based on illegally-obtained evidence. Was Mayer’s decision to testify inextricably connected to his plea of guilt flowing from the improperly obtained evidence or was the connection too tenuous and remote? Sopinka J., writing for the majority, differentiated between Mayer’s arrest and his decision to testify:

Moreover, any temporal link between the illegal search and the testimony is greatly weakened by the intervening events of Mayer’s voluntary decision to cooperate with the police, to plead guilty and to testify….The connection between the illegal search and the decision by Mayer to give evidence is extremely tenuous. Having regard to the entire chain of events, I am of the opinion that the nexus between the impugned evidence and the Charter breach is remote. (para. 45)

[40] The approach favoured by Dickson C.J. in Strachan, [1988] 2 S.C.R. 613, is to focus on the entire chain of events during which the Charter violation occurred and the evidence was obtained. An important question is whether the Charter violation occurred in the course of obtaining the evidence. He held that:

A temporal link between the infringement of the Charter and the discovery of the evidence figures prominently in this assessment, particularly where the Charter violation and the discovery of evidence occur in the course of a single transaction…In my view, these situations should be dealt with on a case by case basis (pp 1005-6).

[41] For the sake of consistency with the position advanced by Crown counsel, I will treat the remoteness issue as part of the section 24(2) analysis. In this context, I agree that the link between the impugned conduct and the acquisition of evidence is weakened by the participation of Mr. Pearce and the permission he gave to the police to look through his house. This weighs in favour of admission of the evidence.

[42] I now turn to the last consideration under section 24(2), an assessment of society’s interest in the adjudication on the merits. I have found that Charter-infringing conduct was calculated and deliberate. At the same time, it did not constitute an egregious intrusion on the privacy interests of the applicant. Neither his person nor his property was searched at the roadside. The crime under investigation was a serious one. The police are expected to vigorously (albeit lawfully) investigate such crimes. The evidence discovered at the Pearce residence and on the applicant’s cellphone was highly probative and very reliable. It was qualitatively different from evidence such as an inculpatory statement obtained in tainted circumstances.

[43] The requirement to exclude evidence if it is established that, having regard to all the circumstances, the admission of it would bring the administration of justice into disrepute does not focus on an immediate reaction to an individual case but rather engages a consideration of the overall repute of the justice system in the long term. Also, the court should be vigilant in disassociating itself from police action that infringes upon Charter rights.

[44] In all the circumstances of this case, however, I conclude that the greater harm would be to exclude the evidence. Doing so would run contrary to the community expectation that, generally speaking, cases involving serious, violent crimes ought to be resolved on the merits. On the facts here, excluding important and reliable evidence would be more likely to negatively impact the public esteem for the administration of justice than to allow its admission.

[45] The application is dismissed.

Mr. Justice Martin James

DATE RELEASED: October 7, 2015