COURT FILE NO.: CJ8393

DATE: 2015-11-27

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Brandon Thomas

Defendant

Meaghan Hourigan, for the Crown

Hubert Gonzalez, for the Defendant

HEARD: November 16, 17 and 18, 2015

The Honourable Mr. Justice J. W. SlOAN

[1] At the outset of these reasons, I wish to make several comments from the court’s point of view.

[2] This Notice of Application was served on the Crown’s office late, making it difficult for them to respond.

[3] The Notice of Application is extremely brief being approximately 3 to 3 ½ pages in length and is very general in its terms.

[4] Given the number of cases, issues and sub issues that the Applicant referred to and the specific detail he went into at the hearing, a factum should have been filed, for the assistance of the court. This would have allowed of the Crown to also prepared differently and file a factum for the assistance of the Court.

Overview

[5] On August 13, 2013, the accused was a passenger in a motor vehicle that was stopped by police because the license plates affixed to it did not belong to the vehicle. The subject vehicle had commercial license plates affixed to it and it was not a commercial vehicle.

[6] The vehicle was stopped by the police on Highway 401 west of the Franklin Boulevard overpass in Cambridge.

[7] Both the driver and accused were questioned by police officers with respect to their identification. The driver was also questioned about the proper ownership for the motor vehicle and license plates and about insurance.

[8] Both driver and accused responded to the questions from police.

[9] The accused submits that the questions asked of him were unrelated to the Highway Traffic Act (HTA) stop and were asked for the purpose of investigating possible criminal offenses.

[10] The accused further submits that he was questioned by police following his detention without being advised of the reason for his detention or his right to retain and instruct counsel without delay, thereby breaching his rights under section 10(a) and 10(b) of the Charter.

[11] The accused was questioned about his identity and the status of his relationship with the driver.

[12] After the police ascertained the accused’s identity they discovered that he was subject to a youth probation order.

[13] The accused submits that he was under no obligation to identify himself and without identifying himself the police, they would not have discovered that he was subject to a youth probation order and therefore would not have possessed the reasonable and probable grounds to arrest him for breach of probation.

[14] His arrest lead to a pat-down search prior to his being placed in the rear of a cruiser and during the pat down search the officer noted a hard lump in his groin area.

[15] The accused, because of the hard lump in his groin area found during the pat down search, was subsequently strip-searched by police and a quantity of cocaine was discovered. This search was done without a warrant.

Sargent Lori Hodgson

[16] At approximately 7:26 PM on August 13, 2013 Sgt. Hodgson received information that a red Alero motor vehicle was heading west towards Cambridge on the 401 and that the license plates on this vehicle did not match the vehicle.

[17] The license plate number on the Alero was AB 38171. This was a number reserved for commercial vehicles and not for what I will describe as a sedan.

[18] Hodgson was on paid duty with a construction company at the time, however since no one else was responding to the dispatchers call, she got permission from the construction company to respond to the situation.

[19] Hodgson intercepted the subject motor vehicle on the 401 in the vicinity of the Franklin Street overpass.

[20] When she initially activated her emergency lights the Alero moved from the far left lane to the middle lane, but then moved back to the left lane and eventually stopped on the left shoulder of the 401.

[21] Stopping on the left shoulder is far more dangerous for the occupants and the vehicles than it would have been if the Alero had stopped on the right hand shoulder. On this particular portion of Highway 401, the shoulder is just wide enough for a motor vehicle. In addition the view of the stopped vehicles would be somewhat obstructed for west bound traffic, both because of the supports for the Franklin Street overpass and the fact that the 401 in this area, is on a downslope.

[22] In succession Constable Kenneth Araujo pulled his cruiser in front of the Alero vehicle and Constable Monica Wenzlaff parked her cruiser behind Hodgson’s cruiser.

[23] Hodgson and Araujo approached the subject vehicle and a conversation took place between them and the driver regarding his driver’s license, insurance and ownership.

[24] The driver admitted that he did not have a license because it was suspended and that there was no insurance on the vehicle.

[25] The driver produced an ownership document which was partly filled out, as if the vehicle was going to be transferred.

[26] In addition the driver provided a handwritten note which read “Sadie sold car for $500” and was dated July 30, 2013. The officer was suspicious because the text on the note was written in blue ink while the signature was written in black ink. In addition the note did not say to whom the car was sold.

[27] The officers could not recall if the signature on the ownership for the automobile and the handwritten note were the same.

[28] Hodgson does not recall speaking to the passenger Thomas, but indicated she must have because she got him out of the vehicle. In any event, she said she did not recall what was said.

[29] Hodgson did not run any computer checks on the motor vehicle plates or the occupants of the vehicle.

[30] She did not recall asking for or receiving any documents from Thomas.

[31] It was her recollection that Thomas exited through the driver’s door for safety reasons, however it is Araujo’s recollection that he exited through the passenger door. Nothing seems to turn on this difference in recollection

[32] When asked, the officers agreed it was “possible” that there could have been in several reasons for the license plates not matching with the vehicle. This could include the vehicle being stolen, the plates being stolen, both the vehicle and the plates being stolen or that a mistake had been made such as, when a vehicle is sold and the wrong plates are inadvertently put on the vehicle.

[33] While it may have been “possible” that the wrong plates were inadvertently put on the subject vehicle, rather than a 1999 black GMC pickup, in the circumstances of this case, there is no evidence to remotely support, such a possibility.

[34] Hodgson stated she stopped the subject vehicle because she was requested by dispatch to do so and she was simply going to investigate the situation.

[35] At no time did any of the officers tell Thomas that he did not have to answer their questions.

Constable Kenneth Araujo

[36] Constable Araujo received information from the dispatcher that the owner of the commercial motor vehicle license plates was one William Meechan and that the plates were for a 1999 black GMC pickup.

[37] He was present when both he and Hodgson asked the driver for ownership documentation and insurance.

[38] The only identification that the driver produced was his passport. He did not have a driver’s license because it had been suspended.

[39] Araujo asked Thomas for ID and was handed an Ontario photo health card which he gave to Constable Wenzlaff, who made some inquiries through her computer and the dispatcher.

[40] Based on her research Wenzlaff discovered that Thomas was on probation and one of the terms of the probation was, that he was prohibited from associating with anyone with a criminal record. The driver of the subject motor vehicle had an extensive criminal record.

[41] When asked how well he knew the driver, Thomas answered that he had known him for years, they were good friends and got together a lot.

[42] Araujo confirmed that Thomas was not under any obligation to answer his questions however he did not advise him that he did not have to answer his questions. In Araujo’s opinion he was just having a conversation with Thomas

[43] In Araujo’s opinion, at this point in time, Thomas was not being investigatively detained. He was in the passenger seat, not handcuffed and no demands were made, such as to put his hands where the officers could see them.

[44] After his arrest & before putting Thomas in the back of Wenzlaff’s cruiser, Araujo did a pat-down search.

[45] His evidence is that he would always do a pat down search before putting someone in the back of a cruiser both for the safety of the accused and the police.

[46] During the pat-down search Araujo discovered an unusual hard lumpy object in the groin area of Thomas.

[47] No attempt was made on the side of the 401 to try to remove the object from Thomas’s groin area and Thomas was simply placed in the back of the cruiser.

[48] Although Araujo did not read Thomas any of his rights, Constable Wenzlaff did, including his right to counsel and both the caution and secondary caution.

[49] During a strip search at the police station and while removing his underwear a sock fell to the floor with an object in it which was kicked to the side by Thomas. Shortly after this, Thomas was charged with possession of cocaine for the purpose of trafficking and Constable Araujo read him his rights and the appropriate cautions

[50] Araujo admitted that the identification of Thomas was not in question since the picture on the health card looked like him and it did not appear to be a forgery.

[51] The driver of the motor vehicle was arrested at 7:55 PM and Thomas at approximately 8 PM after Araujo was informed about his probation and its probable breach.

Constable Wenzlaff

[52] Constable Wenzlaff saw Thomas get searched beside her cruiser before he was placed in the rear seat. She does not think he was read his rights at that time, however she confirmed that she read him all of his rights in the parking lot of the OPP detachment in Cambridge.

[53] She confirmed Thomas also indicated that he understood the cautions and his right to speak to a lawyer. He indicated he did not want to speak to a lawyer immediately, but said he might want to speak to one later.

[54] Later that evening she told Thomas that there were not going to be any charges with respect to the motor vehicle and probably none with respect to breach of probation because it would likely be handled by the probation officer. She told him however that he would be charged with possession of cocaine. She then re-read him his rights and at that time, he spoke with his lawyer.

The Accused’s Position

[55] The accused submits the following positions:

a) Thomas was “detained” when the vehicle in which he was riding was stopped by police

b) Thomas was arbitrarily detained in violation of his s. 9 Charter rights when his detention was no longer required in relation to a valid HTA purpose.

c) If there were reasonable grounds to detain Thomas and investigate him for the criminal offense of possession of stolen property, then when Constable Aruajo asked him questions with the intention to investigate him, his s. 10(a) & 10 (b) rights were triggered before the first question was asked.

d) The request for Thomas’s identification for the purpose of running it through a CPIC and investigating him for a criminal offense was an unreasonable search and seizure, contrary to s. 8 of the Charter.

e) The evidence of any responses given by Thomas to police questioning, including his identification information, the response that he knew the driver well and was good friends with him and the alleged cocaine evidence found during the strip search should all be excluded as evidence pursuant to s. 24(2) of the Charter.

Was There a Detention of Thomas When the Subject Motor Vehicle Was Initially Stopped on the 401

[56] Thomas submits that because he was a passenger in a vehicle that was stopped by the police he was immediately detained.

[57] He relies on many cases most of which predate the Supreme Court of Canada decisions in R. v. Grant 2009 SCC 32 and R. v. Suberu [2009] S.C.R.460. Unless I refer specifically to those cases I find that since 2009, the Supreme Court’s reasoning must be followed when trying to ascertain whether or not a person has been detained by police as a result of a traffic stop.

[58] Although it is admitted that the traffic stop was legal, Thomas submits that because the police stopped the subject vehicle he was detained. He further submits that a reasonable person would think that he has to comply with the police requests and would believe that he is detained.

[59] In R. v. Grant [2009] 2 R.S.C. 353 the Supreme Court at paragraph 44 summarized what a detention meant under sections 9 and 10 of the Charter and said it:

“refers to a suspension of an individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.”

[60] In cases where there is no physical constraint or legal obligation the Supreme Court stated that the court may consider the following factors:

a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[61] In this case, it would have been obvious to most, if not all police officers from just a visual inspection, that the subject vehicle did not have the right license plates.

[62] The initial discussion after the HTA stop was between the police and the driver of the subject vehicle, although Thomas may have heard some of the discussion. The driver was told that the license plates, did not match the motor vehicle.

[63] The driver was then asked very routine questions that would be asked in every similar situation such as to produce identification, and the ownership, license and insurance for the vehicle.

[64] When the car was pulled over to the shoulder it was the driver of the subject vehicle who chose to stop on the left-hand shoulder of the 401 as opposed to the right hand shoulder. Although there were three cruisers/officers at the scene, that is in part because the first officer to respond was on paid, not police duty.

[65] Unfortunately the driver chose to stop the car at an extremely dangerous location for the occupants of the subject vehicle, the police officers and the vehicles themselves.

[66] Although it is not clear whether any police sirens were used, they may have been and certainly emergency lights would have been activated on all three vehicles for safety reasons. Emergency lights and perhaps sirens would have been activated initially to get the driver of the subject motor vehicle’s attention that the police wanted him to pull over.

[67] The first police cruiser pulled in behind the subject motor vehicle and the second police cruiser pulled in front of the subject vehicle effectively boxing the subject vehicle in.

[68] The entire stop at the side of the road on the 401 from the initial stop to when the cars left to go to the OPP detachment in Cambridge was approximately 18 minutes. Given the circumstances of this case, that period of time is short. In addition, a significant portion of that time would have been taken up by stopping the cruisers, getting out of cruisers, talking to the driver, arresting the two individuals placing them in separate cruisers and trying to safely leave the left shoulder of the 401.

[69] There would have been very little time spent in conversation between the police and Thomas.

[70] Thomas himself is a black male and although there is no evidence before me of his exact age, he is young. From his position sitting in the body of the courtroom, he appears to be a large muscular person.

[71] Thomas did not file an affidavit or call any evidence so the court has no evidence of what level of sophistication Thomas has, either in general or in criminal matters other than the fact that the court is aware that he has a criminal record and therefore would have some level of sophistication when it comes to criminal court matters. He certainly had no difficulty conversing with Constable Wenzlaff about understanding his rights. He had no difficulty stating the fact that he did not wish to speak to his lawyer immediately, or the fact later that he did want to speak to his lawyer after he was told he would be charged with a cocaine offense.

[72] In the case of R. V. Harris 2007 ONCA 574, [2007] O.J. No. 3185 the Ontario Court of Appeal at paragraph 21 stated that:

“the determination of whether a person is detained demands a fact specific inquiry,…”.

[73] They went on at paragraph 22 to state:

“I agree with the trial Judge’s conclusion that Harris would reasonably understand that he was not free to leave the vehicle after Constable Lipkus ordered him to keep his hands in open view. Harris was under psychological constraint at least from the point when Constable Lipkus made that demand.”

[74] No such, or similar demand was made of Thomas on the facts before me.

[75] In R. v. Graham, 2011 ONSC 906, the court dealt with the whether a passenger was detained from the time the police stopped the motor vehicle.

[76] At paragraph 198 the court stated:

[77] [198] These cases, however, must now be considered in light of a Mann, Grant, and Suberu, supra. In doing so, I favour the approach taken by Marrocco J. as stated by the court in Mann, at para.19:

“the police cannot be said to ‘detain’, within the meaning of ss. 9 and 10 of the Charter, every suspect they stopped for the purposes of identification, or even interview. The person who has stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.”

[78] Thomas was not told to place his hands in any particular position, was not ordered out of the vehicle, was not handcuffed and because of the proximity of the fast lane of the 401 Highway was being spoken to from the driver’s side window while he sat in the passenger seat.

[79] On the facts of this case, I find that Thomas was not detained at the time the subject motor vehicle was initially stopped on the 401 Highway.

Was Thomas Arbitrarily Detained in Violation of His S. 9 Charter Rights and was a Request for Thomas’s Identification for the Purpose of Running it through CPIC and Investigating Him for a Criminal Offense, an Unreasonable Search and Seizure Contrary to Section 8 of the Charter.

[80] Thomas was essentially asked three questions one was whether he had any identification and the others were how well he knew the driver of the subject motor vehicle.

[81] He produced an Ontario Health Card with his photograph on it and indicated that he was very good friends with the driver.

[82] Both parties agree that Thomas was not under any legal obligation to answer these questions.

[83] Thomas submits that these questions constituted an unreasonable search under s. 8 because at the time they were asked, because the police officers were no longer concerned with the Highway Traffic Act aspect of the stop and were then concerned with the possibility of the subject motor vehicle having been stolen.

[84] He further submits, that he was asked for his identification so the police could run a CPIC search of his name.

[85] In fact, the police did run a CPIC search & found out that Thomas was under a court order not to associate with anyone with a criminal record and since the driver of the automobile had a criminal record, Thomas was arrested for being in breach of a court order.

[86] In R. v. Humphrey 2011 ONSC 3024, [2011] O.J. No. 2412, a car was stopped by police because it had an expired validation tag. On the facts of that case, the Justice Code found a psychological detention, relying most heavily on the police’s direction to the passengers to keep their hands where the officer could see them.

[87] It was conceded in the Humphrey’s case and set out at paragraph 117, that the police had no Highway Traffic Act interest in the passengers and that the officer’s criminal investigative interest in the passengers never rose to more than a hunch or suspicion.

[88] At paragraph 118 Justice Code stated:

“It is clear that section 9 is only engaged by a “detention” and I am satisfied that the passengers were never detained. There is nothing wrong with police officers asking questions, indeed it is their job to ask questions. It is the power to “detain” that is regulated by s. 9 of the Charter and the fact of “detention” then triggers additional rights under s. 10 of the Charter. Merely questioning the passengers, short of “detention”, does not engage Charter rights.

[89] Justice Code went on at paragraph 122 to state:

“The “fact specific” approach taken in Harris and Bradley is also consistent with the subsequent Supreme Court of Canada cases, Grant, supra and Suberu, supra, which stressed the need to take a purposive approach to the meaning of “detention”. On the framework for analysis developed in those cases merely asking the passenger Jason Humphrey for his identification could not amount to a s. 9 “detention”.

[90] At paragraph 125, Justice Code stated the following: “In my opinion, Grant and Subaru have not changed this approach to s. 9 “detention”. If anything, the police now have even more flexibility when asking preliminary non-coercive questions, such as requests for identification, without causing a “detention” and thereby triggering s. 10 rights. In Grant, supra at paras. 6–7 and 37–52, McLachlin C.J.C. and Charon J., speaking for the majority, adopted the above passage from Grafe, and held that the preliminary questioning of the accused Grant, in which he was asked for his identification, did not amount to a “detention” for s.9 and s.10 purposes:’

“Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel.

The encounter began with Cst. Gomes approaching Mr. Grant (stepping in his path) and making general inquiries. Such preliminary questioning is a legitimate exercise of police powers. At this stage, a reasonable person would not have concluded he or she was being deprived of the right to choose how to act and for that reason there was no detention.”

[91] In the case of R. v. Frank, 2012 ONSC 6274, also decided by Justice Code, a motor vehicle was pulled over for a lawful HTA stop.

[92] There were two officers in the police cruiser, one Constable Gill went to the driver’s door. The other officer stood near the passenger’s door but a little behind it and was watching the driver through a partially rolled down the window, for purposes of officer safety.

[93] After obtaining the operator’s driver’s license, Constable Gill went to the passenger side and asked Frank to identify himself.

[94] Frank had previously been ordered by the police to stop using his cell phone.

[95] Both officers then returned to their cruiser and ran the names through CPIC.

[96] The accused Frank testified at the pretrial application.

[97] At paragraph 47 Justice Code stated:

“It is well-established that merely asking a suspect for identification does not give rise to a detention. This was the only investigative question that the police asked Frank. They did not question him about any suspected criminal activity and so there was no “focused interrogation amounting to detention”. Frank testified that he was not concerned about giving his name to the police. This part of the interaction between constable Gill and Frank could not possibly form the basis for a finding of “detention”.

[98] In this case, no orders whatsoever were given to Thomas.

[99] There was no focus to the questioning, he was not asked about his criminal history nor was he asked if he had ever stolen property before or even if he knew anything about the ownership of the subject vehicle or plates.

[100] At all times the conversations were polite, extremely brief and congenial in nature. The very brief conversation with Thomas was exploratory and involved only very preliminary investigative questioning.

[101] This is certainly not a case of direct, sustained questions akin to a focused interrogation.

[102] I find that neither Thomas’s s. 8 or s. 9 Charter rights were breached by the three questions police asked him.

If There Were Reasonable Grounds to Detain Thomas and Investigate Him for the Criminal Offense of Possession of Stolen Property, then When Constable Aruajo Asked Him Questions with the Intention to Investigate Him, His S. 10 (a) & 10 (B) Rights Were Triggered before the First Question Was Asked.

[103] Given my answer to the previous question I find that Thomas was not under investigative detention for a criminal offense at the time the three questions were asked.

[104] At the time of the questions the police were specifically investigating the driver, however like in Suberu, and given the facts of this case they were entitled to, it was their duty to ask some questions about the incident they were investigating.

[105] Thomas’s position is essentially that that the police should have ignored him entirely as if he wasn’t there, however if the police did want to ask him any questions whatsoever, including who he was, they first needed to advise him of his rights.

[106] I do not accept this submission as being correct. In balancing individual rights versus societal rights, surely on the facts of this case, the police were entitled to make the inquiries that they did and in the manner they made them.

Strip-Search

[107] When it was found that Thomas was subject to a court order not to associate with people with criminal records he was properly arrested, at which time and he was therefore detained.

[108] For safety reasons, in what appears to be standard operating procedure, before placing an accused person in the back of a police cruiser Thomas was subjected to a pat-down search. This search was incident to arrest. During this search, it was discovered that there was a hard object underneath his clothing in his groin area.

[109] Thomas was then placed in the back of Wenzlaff’s cruiser. No further questing of Thomas took place until he was read his rights and given the appropriate cautions by her in the parking lot of the Cambridge OPP detachment.

[110] After having been arrested and read his rights, the strip search was carried out and the cocaine was discovered.

[111] Given the criminal record of Thomas and Constable Araujo feeling a hard object during the pat down search, it was incumbent upon him to investigate what the object was.

[112] It is obvious that both for safety concerns and Mr. Thomas’s personal comfort, given the vicinity of the object that the strip search should not be done on the shoulder of the 401.

[113] In the circumstances of this case I find that the strip-search was Charter compliant.

Section 495(2) of the Criminal Code of Canada

[114] Although this was not raised in the written application, it was raised by Thomas orally on this Application.

[115] Thomas submits based on the facts of this case that the officer had no right to arrest him without a warrant, that he had no reasonable grounds to arrest him and therefore the strip search was not valid.

[116] None of the officers who testified were asked if they thought it was in the public interest that Thomas should be arrested. In addition, there is no evidence before me as to the value of the subject automobile.

[117] Therefore, this submission fails.

Section 24(2) of the Charter

[118] On the basis of my above findings, I do not have to deal with this issue.

Order

[119] The Accused’s Application is therefore dismissed.

J. W. Sloan J.

Released: November 27, 2015