COURT FILE NO.: CR-14-99
DATE: 2015-10-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Antoniani for the Federal Crown
Respondent
- and -
WENDELL DAMIAN CUFF
S. Reid for Wendell Cuff
Applicant
HEARD: August 10, 11; September 21, 22, 24, 25 and 28, 2015
THE PUBLICATION BAN, PURSUANT TO SECTION 648(1) OF THE CRIMINAL CODE, IS NO LONGER IN EFFECT DUE TO THE RE-ELECTION TO TRIAL BY JUDGE ALONE ON NOVEMBER 9TH, 2015
The Honourable Justice C.D. Braid
REASONS ON PRETRIAL APPLICATION
I. OVERVIEW
[1] Wendell Cuff is charged with possession of cocaine for the purpose of trafficking and possession of proceeds of crime. Mr. Cuff has brought an application to exclude evidence, seized from the vehicle that he was driving, on the basis that his rights under sections 8 and 9 of the Charter were infringed.
[2] Because Mr. Cuff ran from police and from the vehicle that was searched, the Crown states that he abandoned any reasonable expectation of privacy in the vehicle and therefore does not have standing to seek a Charter remedy. The Crown submits that the search of the vehicle, the detention and the arrest were Charter compliant; and that, in any event, the evidence is admissible under section 24(2) of the Charter.
II. FACTS
- Accused’s Driving
[3] On March 2, 2014 at approximately 2:50 p.m., Cst. Wilson was conducting speed enforcement on Henry Street in the City of Brantford. Cst. Wilson was in uniform and alone in an unmarked cruiser. Although there was deep snow on the ground, the weather was sunny and the roads were clear. Using a speed sensor, he observed a four-door Nissan travelling westbound which he clocked travelling at speeds of 84 and 85 km per hour in a 50 km per hour zone.
[4] Cst. Wilson pulled up behind the Nissan and activated his roof lights. The vehicle veered to the right on to Harris Avenue. Cst. Wilson blasted his siren a number of times. The Nissan kept driving a short distance then made an abrupt right turn into the driveway and parking lot of 24 Harris Avenue, which is a multi-unit apartment complex. Cst. Wilson had followed the Nissan for approximately one or two minutes before the vehicle turned into the lot.
[5] The Nissan drove through the first parking lot area, around to the left of the building and into a second parking lot area before coming to a stop. The driver parked between two lines in a spot facing the fence. Cst. Wilson pulled in behind the Nissan and stopped his car at the rear bumper of the Nissan, effectively blocking in the vehicle. Cst. Wilson observed that Mr. Cuff was the driver and was the only person in the vehicle.
[6] Mr. Cuff immediately got out of the car and walked towards the rear of the Nissan. The front driver’s window of the police cruiser, which was close to the rear bumper of the Nissan, was open. Cst. Wilson had never previously met Mr. Cuff and did not know who he was. Cst. Wilson testified that, at this point, he asked Mr. Cuff for his licence, insurance and registration. Mr. Cuff stood there for about one to two seconds and then “bolted”. He ran on foot toward the back of the apartment complex.
- Foot Chase
[7] Cst. Wilson radioed that he was in a foot chase and ran to the back of the apartment building to try and locate Mr. Cuff. Cst. Wilson lost sight of Mr. Cuff for about 30 seconds, and subsequently observed Mr. Cuff peering over a fence that separates the homes on Harris Avenue from a property belonging to the Lafarge Cement Company. Mr. Cuff set off running through a woodlot, where the snow was approximately two feet high.
[8] Cst. Morton arrived a short time later and took up the chase. As he grew close to Mr. Cuff, the officer yelled “Stop, you are going to be arrested for failing to identify yourself”. Mr. Cuff stopped for a moment, looked back and then continued another 50 yards. He then stopped or slowed down enough for Cst. Morton to catch up to him and the officer apprehended Mr. Cuff. At that point, Mr. Cuff appeared to be exhausted: he was out of breath, he was sweaty, and his legs seemed “rubbery” such that he could not walk unassisted.
[9] The entire foot chase of Mr. Cuff took approximately five to six minutes.
[10] Mr. Cuff did not have the car keys or any identification in his possession when he was arrested. After Mr. Cuff was apprehended, two officers spent approximately 40 minutes carefully retracing Mr. Cuff’s footsteps through the snow. They did not find any evidence. In particular, they were unable to find the keys to the Nissan.
iii. Cst. Pelletier’s Observations
[11] At some point after Mr. Cuff fled, Cst. Pelletier arrived at 24 Harris Avenue. She observed the Nissan parked in a parking spot and Cst. Wilson’s unmarked cruiser a few feet from the trunk of the Nissan. The doors on the Nissan were locked. Cst. Pelletier testified that what she saw was consistent with Cst. Wilson having driven as far as he could before embarking on the foot pursuit.
[12] Later that afternoon, Cst. Pelletier went into the apartment building at 24 Harris Avenue and spoke with the property manager. She reviewed the surveillance videotape briefly, and noted that the surveillance tape was choppy. She was able to watch the surveillance video of the events just prior to the foot chase. She recalled that the video depicted Mr. Cuff getting out of the Nissan in a hurry, looking at Cst. Wilson’s vehicle, and hesitating for a second or two before running. She was unable to tell whether there was a conversation between Cst. Wilson and Mr. Cuff. The video surveillance was never seized by the police.
- Arrest for Fail to Identify
[13] At the time that Mr. Cuff was apprehended, Cst. Morton arrested him for failing to identify. He handcuffed Mr. Cuff and led him to a police cruiser.
[14] Mr. Cuff identified himself verbally to officers. Sgt. Sawkins then arrived. Sgt. Sawkins was a former member of the Street Crime Unit and knew that Mr. Cuff had been the subject of information regarding drug trafficking for many years. Cst. Wilson was not aware of this information prior to Sgt. Sawkins’ arrival. Sgt. Sawkins recognized Mr. Cuff and confirmed his identity to the other officers. At that point, the officers were satisfied that they had established his proper identity.
[15] At 3:08 p.m., Cst. Morton read Mr. Cuff his rights to counsel; and at 3:10 p.m. he verbally cautioned Mr. Cuff. Mr. Cuff was searched and police located $731.40 cash in his pocket. As noted above, Mr. Cuff did not have the car keys or any identification in his possession when he was arrested.
[16] Despite police suspicions about the Nissan, the police did not advise Mr. Cuff that he was being detained in order to investigate the possibility that the Nissan was stolen.
[17] Mr. Cuff was placed in a police cruiser and was driven back to 24 Harris Avenue.
- Arrest for Breach of Probation
[18] The police checked CPIC and learned that Mr. Cuff was on probation for possession for the purpose of trafficking and possession of a loaded prohibited firearm. The probation order included a term that required him to keep the peace and be of good behavior. The officers believed that the probation term was breached when Mr. Cuff ran from police and failed to identify himself. Mr. Cuff was arrested for breach of probation at 3:39 p.m., and was transported to the police station.
[19] During cross-examination at trial, the officers agreed that they had no reason to think that Mr. Cuff would repeat the offence or commit a different offence; they had no reason to believe that he would not show up for court; and they did not need to detain him to secure further evidence. It is not clear which officer actually made the decision to arrest for breach of probation and who decided that Mr. Cuff should be transported to the station.
- Status of Motor Vehicle
[20] Cst. Wilson checked CPIC for information regarding the motor vehicle, and learned that the Nissan was not reported stolen. The vehicle was owned by “Big Boy Customs Inc., operating as Autohub” on Dixie Road in Mississauga, Ontario. Cst. Wilson believed that Autohub was a leasing company. The vehicle was leased to the registered company “8363048 Canada Inc.” on Wellington Street in Aurora, Ontario. The police were aware of Mr. Cuff’s address and knew that Mr. Cuff did not reside in Mississauga, Aurora or Brantford.
[21] Cst. Wilson stated that he may have asked dispatch to call “Big Boy”, but he had no note or recollection of doing so. I have no evidence with respect to any such inquiries being made.
[22] Looking through the windows of the Nissan, the officers were unable to see damage to the ignition and were unable to see any keys. The Nissan had not been reported stolen and there was no other evidence that it was stolen. Cst. Wilson was concerned that it may have been recently stolen and not yet reported. These suspicions were clearly heightened by the fact that Mr. Cuff had fled from the vehicle when Cst. Wilson asked him for his licence, insurance and registration.
vii. Towing of the Vehicle
[23] Cst. Wilson believed that he had authority under the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) to tow the Nissan. He was cross-examined on this point, and it was suggested to him that he could not rely on section 221 of the HTA to tow the vehicle because it was not on a highway. In response to this line of questioning, Cst. Wilson stated that it was an abandoned vehicle but was unable to articulate how he could rely on the HTA to tow it.
[24] Cst. Wilson commented that, since Mr. Cuff was arrested, the officer felt responsible for the vehicle being left at the scene and believed that it should be inventoried. He thought that it was the standard general procedure of the Brantford Police for a vehicle to be impounded if a person is arrested in a vehicle. Cst. Wilson also stated that, even if Mr. Cuff had been released at the scene, he still would have towed the vehicle so that he could look in the car for documentation to contact the rightful owner. He would have denied Mr. Cuff access to the vehicle and would have wanted to determine whether Mr. Cuff had rightful possession of it.
[25] All of the officers involved in the search vehemently denied the suggestion that they conjured up an excuse to search the vehicle because they thought there might be drugs in it. At the time of the search, the officers did not rule out the fact that they might find drugs or weapons when they searched the vehicle.
[26] Cst. Wilson determined that the Nissan should be towed to Ken’s Towing, which is a contractor used by Brantford Police. Cst. Wilson and Sgt. Sawkins followed the tow truck to Ken’s Towing, which was only a short distance away from 24 Harris Avenue.
- Inventory Search of Vehicle
[27] Ken’s Towing was able to unlock the vehicle. Sgt. Sawkins commenced an inventory search at the front of the vehicle and Cst. Wilson commenced at the back. Cst. Wilson observed a yellow plastic shopping bag on the back seat behind the driver’s seat. Cst. Wilson opened the bag and located Mr. Cuff’s Ontario Health Card with his photo; the paper portion of Mr. Cuff’s temporary driver’s licence; and a sandwich style bag with numerous smaller baggies that contained crack cocaine. The total weight of the cocaine was 72.2 grams (approximately 2.5 ounces).
[28] When Cst. Wilson found the cocaine, the officers discontinued the inventory search of the vehicle and put everything back into the vehicle. Sgt. Sawkins decided that it would be appropriate to apply for a search warrant at that point. The Nissan was towed to the police compound and sealed until a member of the Street Crime Unit could apply for a search warrant.
- Search Warrant
[29] Once the Nissan was secured in the police compound, the investigation was turned over to Sgt. Loveday, who was in charge of the Street Crime Unit. Sgt. Loveday applied for and obtained a search warrant to search the Nissan.
[30] Sgt. Loveday opened the sealed compound and executed the search warrant. In doing so, he located the following items in the vehicle:
a) Two cellphones on front passenger seat.
b) In the glove compartment, Sgt. Loveday located a photocopy of a woman driver’s licence, a handwritten note with the name “Frank” and a phone number.
c) On the back seat (driver’s side), Sgt. Loveday located a bag that contained 72.2g crack cocaine, scales, Mr. Cuff’s health card and a temporary driver’s licence in the name of Mr. Cuff.
d) Sgt. Loveday also located a separate bag (which had been placed inside the first bag) that contained a black pot, a glass measuring cup and a set of utensils.
- Factual Disputes
[31] Having observed each of the officers testify before me, I find that they were all credible and forthcoming in their evidence. Although the officers were subject to vigorous cross-examination at times, none of them were evasive or defensive. The officers gave their evidence in a straightforward and truthful manner. I specifically reject the allegation that the officers concocted a ruse to arrest and detain Mr. Cuff so that they could search the Nissan in furtherance of a criminal investigation. I do not accept that the inventory search of the vehicle was conducted for an improper or ulterior purpose.
[32] Counsel for Mr. Cuff suggests that there were inconsistencies in the evidence, and that the court should not accept the evidence of the officers on certain points. I have carefully reviewed the alleged inconsistencies and other evidence, and find as follows:
a) Regarding the initial request for identification: Cst. Wilson described a very brief encounter with Mr. Cuff, during which Cst. Wilson asked for his licence, registration and insurance. Having viewed the surveillance video, Cst. Pelletier described Mr. Cuff hesitating for a second or two before he ran, and she could not say whether there was any conversation between Mr. Cuff and Cst. Wilson. In my view, nothing that Cst. Pelletier observed in her cursory review of the choppy surveillance video contradicted Cst. Wilson’s evidence. I find, as a fact, that Cst. Wilson asked Mr. Cuff for his licence, registration and insurance before Mr. Cuff fled.
b) Regarding the location of Cst. Wilson’s vehicle before he gave chase: Cst. Wilson testified that, when Mr. Cuff fled, he immediately left his vehicle and began chasing Mr. Cuff. In contrast, Cst. Pelletier stated that, when viewing the surveillance video, she observed Cst. Wilson follow Mr. Cuff initially in his vehicle and then on foot. It is notable that Cst. Pelletier stated that Cst. Wilson’s police cruiser was only a short distance away from Mr. Cuff’s vehicle when she arrived at 24 Harris Avenue, and that she only completed a cursory review of the choppy surveillance footage. The difference in the evidence on this point was inconsequential.
c) Cst. Wilson and Sgt. Sawkins both testified that the other officer was making decisions at the scene. Further, neither Cst. Wilson, Cst. Morton nor Sgt. Sawkins could articulate which officer formulated the grounds to arrest Mr. Cuff for breach of probation. All three officers denied being the officer who made the decision to arrest for breach of probation. The officers fell into a routine of taking an arrested individual to the station without properly turning their minds to the provisions of s.495 of the Criminal Code. Although it is certainly troubling that none of the officers took responsibility for the decision to arrest Mr. Cuff for the breach and to subsequently transport him to the station, I specifically reject the position advanced by the defence that none of them wants to own up to the decision because they “know that their testimony is fabricated”.
d) After defence counsel suggested that section 221 of the HTA did not apply to this situation because the Nissan was not abandoned on a “highway”, Cst. Wilson testified that he had no legal authority to tow the car. Counsel did not provide Cst. Wilson with the applicable definition of “highway” which was potentially misleading. Whether the current situation involved a “highway” as defined in the HTA also potentially required a legal opinion. As a result of these concerns, I give little weight to the evidence given by the officer in response to this line of questioning. I will address the HTA definition of “highway” in the analysis below.
e) Contact with Sgt. Loveday: The police believed that Mr. Cuff was not the registered owner of the Nissan and that he did not reside in Brantford. Once Sgt. Sawkins arrived and the CPIC search was completed, the officers on-scene knew that Mr. Cuff had long been the subject of police information about drug trafficking and that he had a criminal record for drug and weapon offences. Two officers retraced Mr. Cuff’s steps in the deep snow in order to look for possible drugs or weapons that may have been discarded. In all of the circumstances, it was perfectly reasonable for Sgt. Loveday, the head of the Street Crime Unit, to be contacted on his day off and advised about the incident.
f) With respect to the timeline for the search of the Nissan: Sgt. Sawkins and Sgt. Loveday gave inconsistent evidence as to whether the inventory search occurred before or after the two of them spoke on the phone. However, it is clear that the inventory search of the Nissan was brief and was halted almost immediately after it had begun. Having carefully considered the evidence of the officers, I specifically reject the notion that Sgt. Loveday instructed the officers to search the vehicle. There is clearly an error in the timeline evidence regarding the sequence of events, but I do not find that the officers were lying when they testified that Sgt. Loveday did not direct the search of the Nissan.
g) A few days before, an officer who was not present at the time of the incident had been advised that Mr. Cuff’s brother resided at 24 Harris Avenue. That information was not disseminated to members of the Street Crime Unit until the day after the arrest of Mr. Cuff. All of the officers who were on-scene denied being aware of this information and Sgt. Loveday similarly denied being aware of that information at the time. I accept that these officers were not aware, at the time of the incident, that Mr. Cuff’s brother resided at 24 Harris Avenue.
III. ISSUES
[33] The following issues are raised in this case:
- Power to impound the vehicle pursuant to s.221 of the Highway Traffic Act
- Inventory search of the vehicle
- Standing and abandonment
- Section 9 arbitrary detention argument
- Section 24(2) analysis
IV. ANALYSIS
A. Power to Impound the Vehicle Pursuant to [s.221](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html) of the [Highway Traffic Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html)
[34] The Highway Traffic Act, R.S.O.1990, c.H.8, section 221 states the following:
S.221.(1) A police officer…who discovers a vehicle apparently abandoned on or near a highway…may take the vehicle into the custody of the law and may cause it to be taken to and stored in a suitable place. [Emphasis Added].
[35] Section 1 of the HTA sets out the definition of “highway” as follows:
S.1.(1) In this Act,
“highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof. [Emphasis Added].
[36] Cst. Wilson relied on the HTA as one of the reasons he believed he had authority to tow the vehicle. Therefore, whether Mr. Cuff’s actions in fleeing resulted in the vehicle being “apparently abandoned” within the meaning of section 221 and whether the paved area around 24 Harris Avenue falls within the HTA definition of “highway” are two questions that must be considered when determining whether the police were legally authorized to tow the Nissan. The analysis in the Ellis and Dunkley cases is relevant to these issues.
[37] In R. v. Ellis, 2013 ONSC 1494, [2013] O.J. No.1274 (Sup. Ct.), the accused had abandoned his vehicle in a private driveway and sought to distance himself from the vehicle, in an effort to avoid being stopped and investigated by police. The Court cited with approval the following quote from United States v. Pittman, 411 F.3d 813 (2005, C.A., 7th Cir.): “if the driver of a car flees at the approach of the police, this is pretty good evidence that he's abandoned the car - that he doesn't want to be associated with it and therefore isn't going to reclaim it.”
[38] The court in Ellis found that the circumstances justified the police decision to impound the vehicle and to have it towed to a suitable place, pursuant to s.221 of the HTA. Although the vehicle was on a private driveway, the driveway adjoined a highway. The court therefore found that the HTA applied as the vehicle was considered to be “near a highway”. Once the vehicle was taken into custody, the police were entitled to perform an inventory search.
[39] In R. v. Dunkley, 2014 ONSC 399, [2014] O.J. No. 648, the accused parked his vehicle at a gas station and then fled from police. The court held that, once the accused fled, the police were entitled to consider the vehicle to be abandoned and to conduct an inventory search as contemplated by section 221 of the HTA. It is notable that the parking lot and driveway of a gas station could technically be considered private property, but it is intended for and used by the general public for the passage of vehicles in the same fashion as the paved area around 24 Harris Avenue.
[40] The entrance to the driveway of 24 Harris Avenue did not have a security gate or restricted access. The general public had access to, and the use of, the driveway and parking lots in and around the apartment building. In my view, the paved area around the apartment building was “a common and public driveway, any part of which is intended for or used by the general public for the passage of vehicles”. I find that the location where Mr. Cuff parked the Nissan falls within the definition of “highway”, as defined in section 1 of the HTA.
[41] The fact that Mr. Cuff parked the Nissan in a parking space does not change the analysis, as the parking spot is part of the paved area of the lot. If I am wrong about this, I would still find that the Nissan was parked near a highway, and would apply the same analysis that the court undertook in the Ellis case.
[42] I further find that, since Mr. Cuff fled from the scene, the officer was justified in his belief that the vehicle was abandoned. The officers on-scene knew that Mr. Cuff did not reside in Brantford and had no information that Mr. Cuff was connected to that apartment building. The police were entitled to tow the vehicle as it had been “apparently abandoned on or near a highway” within the meaning of section 221 of the HTA.
B. Inventory Search of the Vehicle
[43] In R. v. Nicolosi (1998), 1998 CanLII 2006 (ON CA), 40 O.R. (3d) 417 (C.A.) and R. v. Wint (2009), 2009 ONCA 52, 93 O.R. (3d) 514 (C.A.) (leave denied [2009] S.C.C.A. No.164), the Ontario Court of Appeal held that an inventory search performed by the police in connection with an impounded vehicle did not violate section 8 of the Charter. In Nicolosi, the Court of Appeal specifically approved an inventory search following the seizing of a vehicle under section 221 of the HTA. The Court held that the police may search a vehicle for the purpose of cataloguing visible contents while a vehicle is legally in their custody.
[44] In the case before the court, the police were entitled (under section 221 of the HTA) to seize the Nissan as having been abandoned and thereafter to conduct an inventory search. The fact that the officers suspected that they might find drugs or weapons in the car does not change the legitimacy of the inventory search (R. v. Wint, supra).
C. Standing and Abandonment
[45] Standing is a threshold issue. Mr. Cuff has the onus to establish that he has a personal right of privacy in the Nissan before he is entitled to seek a remedy under the Charter. He has not testified nor called any evidence.
[46] In R. v. Edwards 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, the Supreme Court of Canada held that the guarantee of security from unreasonable search and seizure only protects a reasonable expectation. In determining whether an accused has a reasonable expectation of privacy in the place where the seizure occurred, the court is to consider the totality of the circumstances including presence at the time of the search; possession or control of the place searched; ownership; historical use; ability to regulate access; existence of a subjective expectation of privacy; and objective reasonableness of that expectation.
[47] The following is an analysis of the expectation of privacy criteria set out in R. v. Edwards, supra, and R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, as they are applicable to the case at bar:
a) Presence at the time of the search: Mr. Cuff was present in the vehicle when he was driving it but then fled the scene, deliberately removing himself from the vehicle.
b) Possession or control: At the time that Mr. Cuff was driving the Nissan, he had possession of it. He had the keys to the vehicle and locked the doors before he ran from police. However, once he fled the scene, he abandoned possession of the vehicle. Even when the officers brought Mr. Cuff back to 24 Harris Avenue following his arrest, he did not regain possession of the Nissan and could not have done so as he had either discarded or lost the keys when he fled from police.
c) Ownership: Mr. Cuff did not own the Nissan.
d) Historical connection: there was no evidence that Mr. Cuff had ever previously lawfully possessed, used or occupied the Nissan.
e) Ability to regulate access, including the right to admit or exclude others from the place: Mr. Cuff did not own the Nissan and there was no evidence that he occupied it with the owner’s consent. As such, there was no evidence that he had the right to admit or exclude anyone from the car.
f) Existence of a subjective expectation of privacy: Mr. Cuff has not given evidence in this proceeding of his subjective expectation of privacy in the Nissan. Other evidence exists from which one could infer that he had a subjective expectation of privacy. Although the doors were locked on the vehicle when the police arrived, it is not clear whether Mr. Cuff locked the doors before or after he fled. Regardless of when he locked the doors, this is some evidence from which I can infer an expectation of privacy. In addition, the fact that Mr. Cuff parked the Nissan in a parking lot of the apartment building where his brother resided is also evidence of his subjective expectation of privacy.
g) Objective reasonableness of the expectation: Absent evidence from Mr. Cuff, it was impossible to determine whether any subjective belief would have been objectively reasonable. Even if this court were to infer a reduced or minimal subjective expectation of privacy, the voluntary running away from the vehicle constitutes conduct that is inconsistent with the reasonable continued assertion of a privacy interest.
[48] The analysis in R. v. Nesbeth (2008) 2008 ONCA 579, 238 C.C.C. (3d) 567 (Ont. C.A.), (leave refused [2009] S.C.C.A. No.10) is apposite. Mr. Nesbeth threw his knapsack away, leaving it behind as he ran from police. The Ontario Court of Appeal held that, by intentionally throwing his knapsack away, the accused abandoned any reasonable expectation of privacy in the knapsack and its contents. He was therefore precluded from relying on the s.8 protection.
[49] Similarly, the Ontario Court of Appeal decision in R. v. Plummer (2011) 2011 ONCA 350, 272 C.C.C. (3d) 172 (Ont. C.A.) is also relevant. In that case, the accused distanced himself from a gun by placing it in his girlfriend’s bag, and then further distanced himself from the bag by running away. In those circumstances, the court held that his potential privacy interest in the gun evaporated.
[50] In his submissions, counsel for Mr. Cuff relies on R. v. Reddy (2010), 2010 BCCA 11, 251 C.C.C. (3d) 151 (B.C. C.A.). In that case, the British Columbia Court of Appeal held that the accused was arbitrarily detained when he was directed to get out of the vehicle and stand at the curb while police searched the vehicle. The court found that Mr. Reddy’s subsequent flight from police was in response to an unlawful detention, and held that it would be wrong to use those actions against him in the circumstances. Mr. Cuff’s flight was voluntary after he was lawfully requested to provide identification at the roadside; therefore, the Reddy decision must be distinguished from the case at bar.
[51] I find that Mr. Cuff had a reduced or minimal expectation of privacy in the Nissan at the time that he was driving it. By his conduct in intentionally fleeing from the scene, Mr. Cuff abandoned any expectation of privacy in that vehicle and precluded himself from relying on section 8 protection. I find that Mr. Cuff abandoned the vehicle and its contents, and therefore has no standing to bring the section 8 application.
D. S.9 Arbitrary Detention Argument
[52] Section 33 of the HTA states that any driver of a motor vehicle shall surrender their licence to an officer upon demand. When the driver is unable or refuses to surrender his or her licence, the person must give reasonable identification of himself or herself. The correct name and address of the person are deemed to be reasonable identification.
[53] Since Mr. Cuff was speeding and failed to provide identification when a demand was made, the subsequent arrest for failure to identify was appropriate. Mr. Cuff argues that his verbal identification and the subsequent confirmation by Sgt. Sawkins was “reasonable identification” within the meaning of section 33 of the HTA. Mr. Cuff contends that, once his verbal identification was confirmed, the police should have imposed the least restrictive measures and should have released him at the scene. Mr. Cuff asserts that his continued detention after that point was for the purpose of facilitating the police investigation and search of the vehicle, which was improper.
[54] It is further submitted that Mr. Cuff’s arrest for breach of probation was not justified. The police acknowledged that they did not need to preserve evidence, prevent the continuation of the offence or identify the accused. Mr. Cuff argues that the police were therefore prohibited from arresting him as the police did not have any of the concerns that are specified in s.495 of the Criminal Code. It is argued that Mr. Cuff should have been released from the scene as soon as practicable, rather than being taken to the police station in custody.
[55] Counsel for Mr. Cuff asks the court to draw the inference that the only possible reason for taking Mr. Cuff to the station was that they were waiting to see whether the search of the car would yield evidence leading to further charges. However, counsel fairly conceded that this proposition was never put to the officers during cross-examination.
[56] Counsel advances the argument that, even if the court finds that Mr. Cuff has no standing to request a section 8 Charter remedy, he still has a right to seek exclusion of evidence if a section 9 breach is found. In essence, if Mr. Cuff was found to have been arbitrarily detained, and that detention was relied on to search the vehicle, the evidence should be excluded.
[57] In making this argument, counsel for Mr. Cuff relies on the decision of R. v. Lee, [2005] O.J. No. 4389 (Sup. Ct.). In that case, Justice Low found that the accuseds’ section 9 rights had been violated when they were arrested and their persons and cars were searched. The court found that the searches were incident to the arrest of both of them at the same time and place and upon a single instruction; therefore, they formed a single transaction or event and were indivisible. Evidence seized as a result of the search incident to arrest was found to be a direct result of the violation of the accused’s section 9 rights, and the court excluded the evidence.
[58] The facts in Lee are significantly different from the case at bar. The police were entitled to rely on s.221 of the HTA to tow the Nissan. Upon towing the vehicle, they were entitled to conduct an inventory search. I accept that Cst. Wilson would have towed and inventoried the car even if Mr. Cuff had been released from the scene. The police would not have permitted him to access the vehicle and would have towed the vehicle in any event. The evidence obtained in the vehicle search was not dependent upon or derived from Mr. Cuff’s detention. I reject the notion that the search of the motor vehicle is indivisible from the detention or arrest of Mr. Cuff.
[59] Without deciding the issue of whether Mr. Cuff was arbitrarily detained, I find that the issue of Mr. Cuff’s section 9 rights would have no impact on the admissibility of the evidence seized from the vehicle.
E. 24(2) Analysis
[60] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada set out the following three-part test when considering a remedy under section 24(2) of the Charter:
i. Seriousness of the Charter infringing state conduct;
ii. Impact upon the Charter protected interests of the accused; and
iii. Society’s interest in having criminal matters adjudicated on their merits.
[61] With respect to the evidence seized from the Nissan, I have concluded that Mr. Cuff had no standing to make a section 8 Charter claim. I have also found that the issue of Mr. Cuff’s section 9 rights would have no impact on the admissibility of the evidence seized from the vehicle. If I am wrong in my analysis, I would still dismiss the application to exclude the evidence seized from the vehicle.
[62] People who own motor vehicles have a reasonable expectation that the contents of their vehicle will not be subjected to a warrantless search. However, the search of a vehicle does not amount to the same degree of a breach of privacy as would a warrantless search of a residence, cell phone or computer. In the circumstances of this case, Mr. Cuff had a greatly reduced expectation of privacy as he was not the owner of the vehicle. I find that the officers acted in good faith with respect to the towing and inventory search of the vehicle. As such, I would put the seriousness of any Charter infringement at the low end.
[63] Mr. Cuff had a reduced expectation of privacy in the vehicle. As a result, any breach would not have a serious impact on Mr. Cuff’s Charter-protected interests
[64] In dealing with the third factor of the Grant analysis, it is important to note that crack cocaine is an insidious drug. Society has an expectation that matters involving the trafficking of cocaine should be adjudicated on their merits. I am satisfied that, if the evidence found in the vehicle is excluded, there would be a negative impact on the administration of justice.
[65] This is not one of those clearest of cases where the court should exclude the evidence seized from the vehicle. To do so would, in my view, bring the administration of justice into disrepute.
[66] In addition to the evidence seized from the vehicle, the police seized money from Mr. Cuff when he was searched following his arrest on the failure to identify. There is no application before me to exclude this evidence. The Notice of Application, oral submissions and written argument all concentrated on the request to exclude the evidence seized from the vehicle. In the absence of a proper application and submissions on this point, I am not prepared to make a determination with respect to the propriety of the seizure of this money.
V. CONCLUSION
[67] The towing and inventory search of the Nissan were authorized by law. Mr. Cuff does not have standing to advance a section 8 application. Even if the court were to find that Mr. Cuff was arbitrarily detained, any breach of Mr. Cuff’s section 9 rights would have no impact on the admissibility of the evidence seized from the vehicle.
[68] The application to exclude evidence is therefore dismissed.
Braid J.
Released: October 23, 2015
COURT FILE NO.: CR-14-99
DATE: 2015-10-23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
WENDELL DAMIAN CUFF
Respondent
REASONS FOR JUDGMENT
CDB:
Released: October 23, 2015