R. v. Edwards, 2015 ONSC 708
BARRIE COURT FILE NO.: CR-13-0194
DATE: 20150130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHERESE EDWARDS
Defendant
Frederick Bagg, for the Crown
Jason Dos Santos, for the Defendant
HEARD: June 23, 24, 25, 26, 27, July 7, 10, 11, 14, 16, October 14, 2014 and January 26, 27, 28 & 30, 2015
RULING
WRIGHT J.
Introduction
[1] This is a ruling on the admissibility of crack cocaine and marijuana found by the police on Ms. Edwards during a roadside search.
[2] The defence argues that the evidence should be excluded on Charter grounds. It is alleged that Ms. Edward’s rights under ss.8, 9, 10(a) and (10b) of the Charter were infringed and that the evidence should be excluded under 24(2) of the Charter. Additionally, the defence argues that Ms. Edwards’ rights under s. 8 of the Charter were breached when the police conducted a further strip search of her at the police station. The defence is seeking a stay of proceedings under s. 24(1) of the Charter as a remedy for this breach.
[3] The Crown responds by arguing that the police did not infringe Ms. Edwards’ rights, but in the event of a finding that a breach did occur, submits that the evidence should be admitted under s.24(2). Further, the Crown takes the position that the strip search was both authorized and justified. In the event of an adverse finding, the Crown takes the position that a stay is not warranted.
[4] For the reasons that follow, I find that the evidence should be excluded on Charter grounds.
The Evidence
The Vehicle Stop, Arrest and Search
[5] Shortly before midnight on the evening of November 4, 2011, Officer Bates and Officer Does were patrolling the streets of Collingwood in an unmarked police car. Their attention was drawn to a van that displayed the name “Karaoke Cab” travelling in the opposite direction. They did a U-turn to follow the vehicle. The cab came to a stop and the police car pulled in behind it. The officers activated their emergency lights and approached the van.
[6] Officer Does approached the driver’s side of the vehicle and Officer Bates approached the passenger side. The officers said upon approach the doors to the van opened, at which time Officer Bates detected a strong odour of freshly burnt marijuana.
[7] Officer Bates observed and dealt with the black female, the accused, seated in the middle of the third row bench seat. Officer Does dealt with the driver. Officer Bates asked Ms. Edwards to step out of the taxi van and directed her to the front passenger side wheel. He explained to her he smelled burnt marijuana to which she responded that she had been smoking a joint and produced a half burnt marijuana cigarette.
[8] Ms. Edwards was then placed under arrest and a pat down search incident to arrest was carried out at the roadside. In this search, the following was found on Ms. Edwards: 56.6 grams of crack cocaine, 4.6 grams of marijuana, and $545.00 in Canadian currency.
[9] Ms. Edwards was transported back to the police detachment and was strip searched by two female officers. There is some discrepancy among the officers as to whether or not a further gram of crack cocaine was found during that search.
[10] Ms. Edwards takes the position that she did not produce the half burnt marijuana cigarette. She testified that the officer found the half burnt marijuana cigarette while searching the taxi van prior to her being arrested.
The Grounds
[11] The initial vehicle stop was based entirely on information the police had received from anonymous tips.
[12] Officer Bates testified that he had recently received anonymous information about a black female named “Chante” who was coming to Collingwood in a Karaoke Cab to sell crack cocaine. He offered no further details about what was said or in what context. Officer Bates made no notes about these conversations. He could offer no detail about the dates, times, and locations of when he received this information. At one point he testified that the information was gained from a combination of, “people we simply arrested and just word of mouth on the street.” He said the information he received was a couple of months old.
[13] Officer Does said he received information from three sources; they have been referred to as Person A, Person B, and Person C, in these proceedings. He made no notes about the exchanges with these sources. It was agreed by both parties that Person A’s information would not form part of the police grounds to detain. In a ruling made by me on July 7, 2014, Person C was found to be a confidential informant and as such his or her identity is privileged.
[14] Officer Does did not differentiate between the information he received from each source. Instead he made one generic statement about receiving information from three sources about a female by the name of “Chante” that came to Collingwood from Barrie on weekends to sell crack cocaine. Later he said that Person C “Just knew of Karaoke Cab and a female by the name of Chante.” He said the information from these sources was received within two months of Ms. Edwards’ arrest. He said the most recent information was received just two weeks prior to Ms. Edwards’ arrest. However, he never clarified who gave him that information or what was said.
[15] On the evening of November 4, 2011, Officer Bates and Officer Does were patrolling and they noticed a Karaoke Cab van drive past them in the opposite direction. Officer Bates’ attention was drawn to the vehicle because of the neon lights inside of it. Both officers agreed that they stopped the van solely on the basis of the tips they had previously received. Officer Bates said that it did not matter what the circumstances were, he was going to stop the Karaoke Cab. Officer Does said that they wanted to see if the information they had received was valid or credible. Both officers agreed that they could not see into the van and did not know if an occupant other than the driver was in the vehicle.
[16] After the van was stopped, the officers approached the vehicle. Both said they could smell freshly burnt marijuana coming from inside it. Officer Bates asked Ms. Edwards to exit the vehicle so that he could speak with her. He said when he explained that he smelled burnt marijuana, she produced a half burnt marijuana cigarette and said she had been smoking it. Officer Bates had no notes with respect to where Ms. Edwards produced the half burnt marijuana cigarette.
[17] Officer Does then placed Ms. Edwards under arrest and began a pat down search where he found 56.6 grams of crack cocaine, 4.6 grams of marijuana and $545.00 in cash.
[18] Ms. Edwards was then transported to the police station where she was strip searched.
The Issues
[19] The issues to be determined are as follows:
Did the police infringe Ms. Edwards’ rights under s.9 of the Charter?
Did the police infringe Ms. Edwards’ rights under s. 8 of the Charter?
If Ms. Edwards’ Charter rights were infringed, has Ms. Edwards established that the admission of the evidence would bring the administration of justice into disrepute under s. 24(2)?
Were there Sufficient Grounds for an Investigative Detention?
[20] Crown counsel concedes that when the police positioned their vehicle directly behind the Karaoke Cab and activated their emergency lights, they were conducting a vehicle stop. There is also no dispute that the only reason the police stopped this vehicle was to investigate the information they had received from the tipsters.
[21] The real question is: did the police have reasonable grounds to suspect, given all of the circumstances, that the occupants of the vehicle were connected to a particular crime and that their detention was necessary? (R v. Mann, 2004 SCC 47, [2004] S.C.J. No. 46 at para. 45)
[22] There are no absolute guidelines in place for a judicial assessment of an investigative detention. Police investigations are by their very nature fluid events and as such, each matter must be resolved on a case by case basis (Mann supra, at para. 28).
[23] I am mindful that the standard for investigative detention is less than the requirement for reasonable grounds to arrest but more than a mere hunch or speculation (R. v. Simpson, 1993 3379 (ON CA), [1993] O.J. No. 308 (Ont. C.A.) at para. 15; R. v. Basset, [2008] O.J. No. 3456 (Ont. S.C.).
[24] The starting point is the two-pronged “Waterfield Test”, which outlines the inquiry to be taken to determine the limit of police authority when interfering with a person’s liberty or property (R. v. Waterfield, [1963] 3 All E.R. 659). The Waterfield Test asks the following questions: (1) Were the police acting in the exercise of a lawful duty when they engaged in the conduct in issue; and (2) Does the impugned conduct amount to a justifiable use of police powers associated with that duty.
[25] Applying the test from Waterfield, I am satisfied that the police were acting in the exercise of a lawful duty when they stopped the Karaoke Cab. The more difficult question is whether they were justified in doing so, based on the totality of the circumstances, when they conducted the vehicle stop.
[26] I find that they were not. And here is why.
[27] The investigative detention of Ms. Edwards was completely grounded in information police received from a confidential informant, referred to as Person C, and one other tipster referred to as Person B.
[28] Constable Bates also testified about receiving information from unspecified sources.
[29] To assess this information, I rely upon the test set out by the Supreme Court of Canada in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140 (SCC) at para. 53. I am mindful that the issue in Debot was one of search incident to arrest, to which a different standard attaches. The criterion for assessing anonymous tips however, is still very much applicable to the investigative detention scenario.
[30] The three criteria for assessing tips are as follows:
(1) Is the tip compelling?
(2) Is the source credible?
(3) Has the information been confirmed through independent police investigation?
[31] Was the tip compelling? The complete lack of note-taking by both officers made the assessment of this information a challenging task. It is difficult to accept that any of this information was compelling given that neither officer chose to make a note of it at the time they received it.
[32] As an aside, police note-taking is an integral part of the Criminal Justice System. Note-taking has many functions beyond that of just refreshing an officer’s memory while testifying (Wood v. Schaeffer, 2013 SCC 71, [2013] 3 S.C.R. 1053; and R. v. Eagle, [1996] O.J. No. 2867). In my view, the failure to take sufficient notes, which is demonstrated repeatedly in this case, impinges on the credibility of these officers.
[33] The information itself was stale-dated and therefore of diminished value. Both officers testified that they received the information as far back as two months prior to the arrest. I am mindful that Constable Does made a reference to receiving information two weeks before the arrest, but given that he could not articulate which source that came from, I place no weight upon that testimony, particularly given the Crown’s position that in establishing grounds for detention, they are not relying on information received from Person A. There is no way of knowing if Person A was the one who provided the most current information or not. Regardless, I find that even a two week-old tip is a stale tip.
[34] Moreover, the tips were vague and void of detail. Constable Bates testified that he received his information from people he had arrested or people on the street. Admittedly, these people, whoever they were, had no first-hand knowledge of the information they provided, leaving the door wide open for rumour and gossip based information.
[35] The information received by Constable Does was also of substandard quality. It was generic and vague. There was no attempt to discern which source provided what information. He seemed quite content to lump them all in together.
[36] The Crown argued that the reference to a Karaoke Cab is a unique feature that enhances the currency of the tip. I disagree. There was no information about the make, model or colour or this vehicle. No information about how many Karaoke Cabs there may or may not be in existence. I do not know if this is a one of a kind or a fleet. I am also mindful that both officers said their attention was drawn to the neon lights inside of the vehicle as it drove by. This information, although distinct, did not form any part of the information provided by the informants.
[37] Were the sources credible? There was no evidence led in regards to this and it appears that the officers did not turn their minds to this criteria. In my view, they were content to accept whatever information flowed their way from whatever source and act upon it, no questions asked. The officers admitted that they had no reason to believe the information was first-hand information. It was at best second-hand information and at worst total rumour and innuendo. There is no way to determine where it falls along that spectrum. Given the paucity of evidence in regards to these sources, I am unable to make any independent assessment of credibility.
[38] I make a similar finding on the third criteria as to whether the tips were confirmed by independent police investigation. The tips were not independently confirmed. I find that there was absolutely no attempt to confirm the tips prior to the vehicle stop. Quite the opposite, Constable Does testified that the purpose of the stop was in fact to verity the tips they had received.
[39] It is not only the lack of detail and the failure of the police to confirm the information that I find troubling, but the fact that the police were determined to stop the vehicle because it was a Karaoke Cab. That was the sole piece of information available to them at the time of the stop. They did not know who was in the cab; where the cab came from; or where it was going; and more importantly, they did not take the time to make those inquiries.
[40] Moreover, the police are acting on information that is weeks or months old. In order for an investigative detention to be justifiable, there must be a clear nexus between the individual to be detained and a recent or on-going criminal offence. The police power to investigatively detain is limited to situations where police are investigating recent criminal activity. In this case, the police had not been and were not actively investigating the tips. It was a random coincidence that the police came upon the cab at all that evening.
[41] I find that the police had no basis to make the vehicle stop. The tips received amounted to no more than rumour and speculation. By acting upon it, the officers arbitrarily detained Ms. Edwards and breached her rights under s. 9 of the Charter.
Were there Sufficient Grounds to Search Ms. Edwards?
[42] The Crown argues that even if I find that the vehicle stop was not a justified investigative detention, that the intervening circumstances leading up to Ms. Edwards’ arrest and search of her person, allow for a finding of a justified detention and thereby justifiable grounds to search.
[43] I disagree, and here is why.
[44] In this case, the arrest was based on the smell of marijuana in the vehicle and a verbal admission by Ms. Edwards.
[45] I do not find that the officers’ evidence about the strong smell of freshly burnt marijuana is a sufficient basis for investigative detention. In making that assessment I am reminded of Justice Rosenberg’s comments about the pitfalls of using the smell of burnt marijuana as grounds for detention in R. v. Polashek, 1999 3714 (ON CA), [1999] O.J. No. 968 (Ont. C.A.) at para. 13:
The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory and thus largely incapable of objective verification. A smell will often leave no trace. As Doherty J.A. observed in R. v. Simpson at p. 202 “subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors such as the detainee’s sex, colour, age, ethnic origin or sexual orientation.”
[46] I am mindful in making my finding that Justice Rosenberg was referring to an arrest situation, and the standard for an investigative detention is something lesser.
[47] It is the lack of note-taking, combined with the officers’ vague and generic testimony that gives rise to genuine concerns about their reliability and objectivity.
[48] Especially in light of the fact that they only questioned Ms. Edwards about the smell of marijuana and not the driver. Constable Does did not even ask the driver to step out of the cab. Their focus was clearly on Ms. Edwards. My difficulty does not end there. Constable Bates made no note and had no memory about where this half burnt marijuana cigarette came from on Ms. Edwards. He said he was just sure if came from somewhere on her person. Yet this is the basis upon which he has her arrested.
[49] I am mindful of the dynamic, changing and fluid circumstances surrounding the ultimate arrest and search of Ms. Edwards. However, I remain unconvinced that the detention of Ms. Edwards was justified. The triggering event was the unjustified vehicle stop from which everything else flowed. Even if I were to accept that the officers smelled burnt marijuana, they were not entitled by law to stop the vehicle and but for that, would not have even had the opportunity to smell the marijuana.
[50] Given my findings that there was no lawful basis for the vehicle stop resulting in the initial detention of Ms. Edwards, there can be no lawful basis for the searches that followed.
[51] I find that the search of Ms. Edwards was not authorized by law and as such is a violation of her rights under s.8 of the Charter.
Is the evidence admissible under s.24(2) of the Charter?
The seriousness of the Charter Infringing State Conduct
[52] The first factor involves an assessment of whether the admission of the evidence sends a message to the public that courts condone serious state misconduct. In Grant supra, the Supreme Court of Canada stated the following regarding serious state misconduct at para. 72:
The more severe or deliberate state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct by excluding the evidence linked to that conduct , in order to preserve public confidence in and ensure state adherence to the rule of law.
[53] It is undisputed that an individual has a reduced expectation of privacy in a motor vehicle. Despite the fact that Ms. Edwards was travelling in a taxi, Crown concedes that as the lone paying passenger, she enjoys the same level of privacy one would expect in their own private vehicle. He argues however, that her expectation of privacy is at the low end.
[54] The Supreme Court of Canada shed some light on what level of privacy a person can expect in a motor vehicle in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 31:
This said, being stopped and subjected to a search by the police without justification impacts on the motorist’s rightful expectation of liberty and privacy in a way that is much more than trivial. As Iacobucci J. observed in Mann, the relatively non-intrusive nature of the detention and search “must [page 510] be weighed against the absence of any reasonable basis for justification” (para. 56 (emphasis in original)). A person in the appellant’s position has every expectation of being left alone--subject, as already noted, to valid highway traffic stops.
[55] Crown argues that the police were acting in good faith and believed they had sufficient grounds to stop the vehicle. He says this was simply a miss-assessment of information, not a case of wilful and reckless disregard.
[56] I disagree. The police did not fail to assess the information accurately, there was in fact, nothing to assess. Even on their own evidence, the stop was to verify the tips, which suggests and reinforces the fact that they were on nothing more than a fishing expedition.
[57] Given that the majority of Canadians own or travel by motor vehicle in the course of their lifetimes, I do believe that the publics’ confidence in the rule of law would be undermined if the seized items were to be admitted into evidence.
The Impact of the Breach on the Charter Protected Interests of the Accused
[58] The second factor requires an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed (Grant supra, para. 76). The more serious the impact on the accused’s protected rights, the greater the risk that the admission of evidence would put the administration of justice into disrepute.
[59] It is agreed that Ms. Edwards had a privacy interest while travelling in the taxi cab. Given that the police were acting on nothing but suspicion and rumour, they were obliged to leave her alone. They did not do so.
[60] Ms. Edwards of course was as a result of the vehicle stop, subjected to a roadside search of her person followed by a much more intrusive strip search at the police detachment. All of this stemming from the illegal traffic stop and adding to the seriousness of the Charter breach.
Societies Interest in the Adjudication of the Case on its Merits
[61] I recognize that the charges before the court are serious and that the evidence seized by the police is essential to the prosecution. The societal interest in the effective prosecution of the case weighs in favour of admission while the breaches weigh in favour of exclusion.
Balancing the Factors
[62] On balance, I conclude that the admission of the evidence would bring the administration of justice into disrepute. The evidence will therefore be excluded under s.24(2) of the Charter.
[63] In light of my findings, it is unnecessary for me to go on and consider the defence application for a stay of proceedings in relation to the strip search.
WRIGHT J.
Released: January 30, 2015
NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.