COURT FILE NO.: CRIM J (P) 697/13

DATE: 2015 12 09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Colin Henderson and Jacob Sone for the Crown

- and -

JALANI DALEY, JANANTHAN KANAGASIVAM, MAJURATHAN BASKARAN, THIRUMAL KANTHASAMY and SRIMOORTHY PATHMANATHAN

Paul Erskine and Charlena Claxton for Jalani Daley

Stephen Morris for Jananthan Kanagasivam

Andrew Vaughan for Majurathan Baskaran

Peter Zaduk and Cate Martell for Thirumal Kanthasamy

Christopher Assie for Srimoorthy Pathmanathan

Pre-trial Motions Heard: September 28 – November 20, 2015

Voluntariness and Charter Ruling

Thirumal Kanthasamy: July 28 and August 27, 2009

FAIRBURN J.

Overview

[1] The accused are facing a lengthy indictment. The allegations relate to multiple incidents involving thefts, robberies, kidnappings, and firearms. The offences span a time frame from March 13, 2009 to August 28, 2009.

[2] At just after 1:00 a.m. on July 28, 2009, two Ontario Provincial Police (OPP) officers pulled over a minivan travelling eastbound on Highway 417. Two men were in the van. One of the occupants provided a driver’s licence in the name of “Kanthasamy Thirumal”. This is Mr. Kanthasamy’s name in reverse. Mr. Kanthasamy takes the position that he was arbitrarily detained during this traffic stop. I agree. He says that all evidence respecting this stop should be excluded from evidence. I agree.

[3] About a month later, on August 27, 2009, two Toronto Police Service (TPS) officers approached a black Mercedes-Benz that was parked in a high crime industrial area. Two men were in the car. The passenger provided a licence, again in the name of Kanthasamy Thirumal. The passenger also provided his cellular phone number to the police. Various observations were made and noted. Mr. Kanthasamy argues that his ss. 8, 9 and 10(b) rights were infringed during this police-civilian interaction. I disagree.

[4] The Crown seeks the admission Mr. Kanthasamy’s statement during the August 27, 2009 police-citizen interaction. I find beyond a reasonable doubt that it was voluntarily made. It is admissible.

[5] Pre-trial applications in this case commenced on September 28, 2015 and were completed just after the jury was selected during the week of November 16, 2015. The jury started to hear evidence on November 23, 2015. The trial continues.

[6] Oral rulings were provided with respect to all pre-trial applications prior to evidence being called. A number of rulings were given with written reasons to follow. These are my written reasons with respect to the above motions.

Burden of Proof

[7] The Crown must prove the voluntariness of a statement given to a person who the accused knows to be in a position of authority beyond a reasonable doubt: R. v. Singh, 2007 SCC 48, at para. 25. As such, the Crown bears the onus on the voluntariness aspect of this voir dire.

[8] Where an accused says that he has been arbitrarily detained under s. 9 of the Charter, or that his right to counsel under 10(b) has been infringed, he bears the onus of establishing these alleged breaches: R. v. Suberu, 2009 SCC 33, at para. 28. To succeed on the ss. 9 and 10(b) Charter issues, the accused must establish breaches on a balance of probabilities: R v Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, at para 11.

[9] In order to raise a s. 8 complaint, an accused must first establish that he has standing to do so. Section 8 only offers protection from unreasonable searches and seizures. As such, the initial step in a s. 8 inquiry is to satisfy the court that the accused has a reasonable expectation of privacy in the subject of the search: R. v. Simpson, 2015 SCC 40, at para. 47; Hunter v. Southam, 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 159; R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, at para. 45 [Edwards]. Whether an individual has a reasonable expectation of privacy is determined by considering the totality of circumstances: Edwards, at para. 45; R. v. Tessling, 2004 SCC 67, at para. 19; R. v. Patrick, 2009 SCC 17, at para. 26.

[10] If it is determined that the accused has a reasonable expectation of privacy in the subject of the search, then the court looks to whether the search was conducted with the benefit of prior judicial authorization. If the answer to this question is yes, then the search is presumptively valid and the accused bears the burden of establishing on a balance of probabilities that his s. 8 rights have been breached. If the search is without warrant, then it is presumptively invalid and the burden shifts to the Crown to justify the reasonableness of the search: Edwards, at para. 45; R. v. Nesbeth, 2008 ONCA 579, at para. 21; R. v. Kang-Brown, 2008 SCC 18, at para. 59; R. v. Nolet, 2010 SCC 24, at para. 21; R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, at paras. 22, 34 [Collins].

[11] Regardless of who holds the initial burden in respect to the Charter issues raised, if Charter breaches are established, then the burden lies with the accused to establish, again on a balance of probabilities, that the evidence should be excluded. To achieve exclusion, the accused must satisfy the court that, having regard to all of the circumstances, admitting the evidence would bring the administration of justice into disrepute: R. v. Harper, 1994 68 (SCC), [1994] 3 S.C.R. 343 at para. 16; Collins, at paras. 32-3; R. v. Sandhu, 2011 ONCA 124, at para. 42.

July 28, 2009: The Highway 417 Stop

Overview

[12] On July 28, 2009, at just after 1:00 a.m., two OPP officers stopped a minivan on Highway 417. There were two men in the vehicle. Each produced their driver’s licence. The names on the licences were Mohamed Farhan Mohamed Mashood and Kanthasamy Thirumal. The vehicle they were travelling in was registered to Srimoorthy Pathmanathan.

[13] The significance of this traffic stop would only be discovered at a later point. Mr. William Latham, a truck driver, was inside of his tractor-trailer during the evening of July 27, 2009. He was kidnapped when his truck was hijacked. His tractor-trailer was driven from Whitby to Quebec. The kidnappers asked Mr. Latham for directions to Montreal and he told them to take Highway 417.

Evidence of Det. Cst. Jean Philippe Perron

[14] Det. Cst. Perron became an OPP officer in 2001. On July 28, 2009, he was working as a constable with expertise in traffic stops. I will refer to him by his rank on that date. On July 27 to 28, 2009, Cst. Perron was training a probationary officer: Cst. Karim Davis. Just after 1:00 a.m. they pulled over a vehicle that Cst. Perron testified was travelling too close to a transport truck.

[15] Cst. Perron has no notes about this traffic stop that occurred over six years ago. He cannot recall why he did not take notes. He acknowledges the importance of taking contemporaneous notes and is embarrassed by the lack of notes. Despite this fact, he testified that he recalls the stop well. He says that he has been assisted in refreshing his memory by listening to recordings from the communications with dispatch.

[16] He also prepared a will say statement at the request of the Peel Regional Police, PRP. When asked at the beginning of his evidence when he prepared his will say, he said that it was within a couple of weeks of the “incident”. When given the opportunity to refresh his memory, it turned out that the will say was created about 20 months following the traffic stop, after which it was sent to the PRP on February 9, 2011.

[17] When asked in cross-examination why he first testified that he thought he prepared the will say about two weeks following the stop, Cst. Perron acknowledged that there is “quite … a difference … it’s six years ago” and he could not “guess better at the beginning”. He did not provide any clear answer as to why he had guessed at the outset of his evidence that the will say had been done within two weeks.

[18] Other than the one page will say created twenty months after the traffic stop, and the recording with dispatch, Cst. Perron had no other material to refresh his memory. This was the first time he had testified about the incident.

[19] Notwithstanding the lack of notes, Cst. Perron testified that he has a clear recollection of why the minivan was pulled over. He said that the vehicle was travelling in a very “bizarre” manner, tailgating a transport truck. He testified that Highway 417 is fairly clear at 1:00 a.m. It struck him as odd that the van would tail the truck so closely when there were no other vehicles around.

[20] He said that if the tractor-trailer had to slam its breaks on, the minivan could not have avoided hitting it. He thought that this was a safety risk. He also testified that his “spidey sense” was triggered. In his view, “something was wrong”. It was his decision to stop the van.

[21] Cst. Perron is sure that Mr. Kanthasamy was the driver that evening. He knows this because he recalls driving the police cruiser. When he is the driving, it is his practice to approach the driver’s side of a vehicle that he pulls over. It is also his practice to first query the name of a driver, before querying any of the passengers’ names.

[22] Cst. Perron’s voice is heard attempting to query “T-H-I” before his radio went dead and Cst. Davis took over. Cst. Perron testified that he knows Mr. Kanthasamy was in the driver’s seat because of the fact that he attempted to query his name before the other vehicle occupant’s name.

[23] Cst. Perron recalls asking the driver if he knew the owner of the vehicle. The driver said that the owner was a friend of his. Cst. Perron did not detect any signs of nervousness. He said that he got dispatch to check the licence to ensure that the driver was properly licenced. He checks the identification of both drivers and passengers to ensure that they do not have bail violations or other matters that may be of concern to the police. As for passengers, Cst. Perron said that if the person is an adult, they do not have to provide identification to the police.

[24] The dispatcher checked the names. She said that Mashood had been convicted of theft. Mr. Kanthasamy did not have a criminal record. Cst. Perron looked through the windows for contraband. Noticing nothing of concern, the vehicle was permitted to proceed. Cst. Perron said that the occupants were respectful and nice and he decided to exercise his discretion in favour of not laying a charge. The vehicle was pulled over for a maximum of ten minutes.

[25] After the stop, Cst. Perron recalls talking about it with Cst. Davis. He testified that they thought it was “bizarre” but could not come up with any grounds to pursue the matter. He said that they simply said something like, “that was bizarre, wasn’t it”.

Evidence of Cst. Karim Davis

[26] Cst. Davis started work with the OPP in May 2009. Like Cst. Perron, he has no notes respecting the traffic stop. He could not explain his lack of notes, but thought that it may be because of his inexperience at the time. Cst. Davis also prepared a will say. It was done over a year before Cst. Perron’s and forwarded to the PRP on January 22, 2010. He reviewed the audio call to assist in the preparation of his will say.

[27] Cst. Perron was Cst. Davis’ coach officer in the summer of 2009. Cst. Davis recalls very little of the traffic stop other than what he can glean from having refreshed his memory with the recording made with dispatch. They stopped the vehicle at 1:08 a.m. He cannot recall the reason for the stop. Cst. Davis said that there is not a lot of traffic on Highway 417 at 1:00 a.m. on a Monday, which is when he thought this stop occurred.

[28] Cst. Perron was driving the police vehicle. While Cst. Davis cannot recall whether he spoke to the driver or passenger of the minivan, he testified that the normal practice was for the driver of the police vehicle to approach the driver of the stopped vehicle. There are exceptions to this rule and it all depends on the circumstances. Cst. Davis is not aware of any rule that causes the driver’s identification to be checked before a passenger’s identification.

[29] He said that if passengers do not wish to identify themselves, provided they are not breaching the Highway Traffic Act, they are not obliged to do so.

[30] Cst. Davis was cross-examined on whether he thought there was anything unusual about the stop. He said he could recall little of the stop and so it did not stand out in any way. He does not recall anything bizarre or strange or memorable. He cannot recall having a conversation with Cst. Perron about the nature of the stop. He said that they knew they did not have notes and were not proud of this fact. Cst. Davis did not know Cst. Perron did not send his will say until February of 2011. He did not know why it took Cst. Perron so long to perform this task.

Positions of the Parties

[31] Mr. Zaduk, on behalf of Mr. Kanthasamy, argues that it would be unsafe to come to a conclusion as to what happened during this traffic stop. Cst. Perron was the only officer who suggested that Mr. Kanthasamy was the driver. He made an unconvincing effort to reconstruct a narrative of events that was convenient for the prosecution. He points to Cst. Perron’s initial evidence, that he prepared a will say two weeks after the stop, when in fact it was 20 months after the stop, as a “red flashing warning sign” to approach his evidence with caution.

[32] Mr. Zaduk argues that Mr. Kanthasamy was the passenger of the motor vehicle, he was detained and unlawfully searched when he had to provide his driver’s licence. He argues that because he was detained, he should have been provided with his right to counsel. This interaction resulted in breaches of his ss. 8, 9 and 10(b) rights. He says that the evidence should be excluded under s. 24(2) because, among other things, the officers acted in bad faith. I am encouraged to take into account the fact that Cst. Perron attempted to mislead the court in concluding that it would bring the administration of justice into disrepute to admit the evidence.

[33] Mr. Sone, for the Crown, argues that while Cst. Perron may have been wrong when he initially testified that he created his will say about two weeks after the incident, he also testified that he was contacted by the PRP shortly after the stop. As such, his recollection about the stop would have crystalized in his mind at that time and I should have confidence in his evidence. There is no evidence that Cst. Perron knew what this motion was about or what evidence would assist the Crown’s case.

[34] I should accept his evidence that the minivan in which Mr. Kanthasamy was travelling was tailgating a transport truck and, therefore, the stop was lawful. There is no evidence to suggest that there is an improper purpose involved in stopping the vehicle and, therefore, even if I reject Cst. Perron’s evidence, the defence has failed to establish on a balance of probabilities that the police did not have lawful grounds to stop the vehicle.

[35] Moreover, I should accept the evidence of both officers that Cst. Perron was the driver of the police vehicle and that the normal practice would be for the driver to approach the driver’s side of a stopped vehicle. I should find that Mr. Kanthasamy was the driver of that vehicle for the reasons given by Cst. Perron.

[36] While as a driver of a lawfully stopped vehicle he was detained, it was not an arbitrary detention and there was no need to administer a right to counsel. Nor was the provision of his licence, as a driver, a search. If I find that Mr. Kanthasamy was the passenger in the vehicle, then he was not detained. The police made no demand or direction. He voluntarily provided his licence. As he was not detained, the provision of his identification was not a search and he was not entitled to counsel.

[37] While the Crown and defence also made voluntariness arguments, bearing in mind the decision that I have reached on the detention issue, there is no need to address voluntariness.

Findings on the Suggested Charter Breaches

[38] There is no need to conduct a detailed review of the law for purposes of my findings with respect to the July 28, 2009 stop. They turn largely on fact.

[39] For the most part, as distinct from the passenger in a motor vehicle, a driver who has been stopped by the police will usually be detained within the meaning of s. 9 of the Charter. The detention arises from the fact that the driver has been the subject of a police demand and direction to pull over and stay put: R. v. Orbanski, 2005 SCC 37, at paras. 30-32; R. v. Hufsky, 1988 72 (SCC), [1988] 1 S.C.R. 621, at para. 13; R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257, at paras. 35-36.

[40] The police must rely upon lawful authority to stop a motor vehicle: R. v. Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2. The lawful authority arises from either statue or common law. While the accused bears the burden of proof on a s. 9 voir dire, meaning that a police stop is presumptively valid until proven otherwise on a balance of probabilities, the inability of the police to give a lawful reason for a vehicle stop can give rise to a finding of arbitrariness.

[41] While there was some uncertainty in the law about whether a police stop lacking in lawful authority is necessarily an arbitrary detention within the meaning of s. 9 of the Charter, this was resolved in R. v. Grant, 2009 SCC 32 [Grant]. The majority held that a lawful detention is not arbitrary, as long as the common law or statutory authority authorizing the detention is lawful: Grant, at para. 54. See also: R. v. Mann, 2004 SCC 52, at para. 20 [Mann]. Conversely, a detention not authorized by law will necessarily be arbitrary and violate s. 9 of the Charter: Grant, at para. 54.

[42] On the factual record before me, I have no confidence about what happened in the context of the July 28, 2009 vehicle stop. While I believe that Cst. Perron was trying to recall the reason for the stop, I have serious doubts about whether his recollection, over six years after that stop occurred, is accurate. His memory may have been subconsciously impacted by his ex post facto knowledge as to the importance of the vehicle stop. He candidly admitted during his evidence that he had come to learn how important this stop was and that his lack of notes, made contemporaneous with the stop, would be a substantial problem at trial.

[43] If the stop had been as “bizarre” as he testified to, he likely would have made some note to that effect. Moreover, his evidence on this point contradicts that of Cst. Davis who could not recall a discussion about the bizarre nature of the stop. This is despite the fact that Cst. Perron said that they discussed the matter.

[44] The fact that Cst. Perron did not write his will say for 20 months after the stop, yet thought at the outset of his testimony it was within 2 weeks after, reveals the frailties of human memory and underscores the importance of officer note taking. While I reject the suggestion that he was intentionally attempting to mislead the court, I am troubled from a practical perspective. While the officer was no doubt attempting to recall the incident to the best of his ability, bearing in mind the entire context of his evidence, I am left with real concerns about why the vehicle was stopped and what occurred during the stop.

[45] My concern about this point is only further entrenched by Cst. Davis’ candid acknowledgement that he does not recall why the vehicle was stopped. This is notwithstanding the fact that he prepared his will say over a year earlier than Cst. Perron.

[46] The Crown suggests that even if I conclude that the reason for the stop is unknown, the defence will have failed to establish on a balance of probabilities that there was an unlawful reason for the stop. As such, the s. 9 application must be dismissed. I disagree. If this were correct, then the defence could never get to a s. 9 Charter breach where police officers claimed or feigned a lack of memory about the reason for a stop. That cannot be right. When put to the challenge, the police are under an obligation to articulate the lawful basis upon which a vehicle is stopped. Where they cannot do so, there will be a groundless vehicle stop. This gives rise to s. 9 concerns.

[47] In the end, I accept Cst. Davis’ evidence about the fact that he cannot recall why the van was stopped. While there was evidence from Cst. Perron that the reason for the stop was tailgating, for the reasons above, including the failure to take notes or produce a will say for 20 months, I am left entirely uncertain as to why the vehicle was stopped. As such, I am left in a factual void as to the reason for the stop. In the absence of credible evidence about a lawful reason for the stop, I find that it was unlawful.

[48] While I am prepared to accept Cst. Perron’s evidence that Mr. Kanthasamy was the driver of the vehicle, in the absence of a lawful basis upon which to have stopped the vehicle, I find on a balance of probabilities that as the driver, Mr. Kanthasamy was arbitrarily detained. His s. 9 Charter right was breached. Bearing in mind the s. 9 breach, there is no need to address the ss. 8 or 10 concerns.

Should the evidence be excluded?

[49] Mr. Kanthasamy asks that the vehicle stop on July 28, 2009 be declared unconstitutional and asks that all evidence obtained during the stop be excluded. In considering whether to exclude the evidence, Grant requires that a trial judge have regard to: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interest of the accused; and (3) society's interest in the adjudication of the case on its merits: Grant, at para. 71. The court must consider these categories against all of the circumstances of the case: R. v. Côté, 2011 SCC 46, at paras. 48; R. v. Aucoin, 2012 SCC 66, at paras. 45-50. The party seeking exclusion bears the burden of establishing, on a balance of probabilities, that the admission of the evidence at trial would bring the administration of justice into disrepute: R. v. Fearon, 2014 SCC 77, at para. 89.

[50] As for the seriousness of the infringing conduct, the court must look to whether it was deliberate. The more serious or deliberate the state conduct is, the more important it becomes for the court to dissociate itself from that conduct by excluding the evidence: Grant, at paras. 72-75. By dissociating itself from serious state conduct, the Court promotes the public’s confidence in Charter values, ensuring that individual rights are seen as more than simply words and that they translate into genuine control over and protection from state abuse.

[51] It is difficult to know precisely how serious the actual breach was in this case because it is born out of an absence of evidence, rather than clear evidence that delineates the state conduct. Having rejected the reason for the stop, as articulated by Cst. Perron, and accepting Cst. Davis’ evidence that he does not recall why the vehicle was pulled over, we are left in a factual lacuna as to what occurred.

[52] Notwithstanding this fact, I find that the police conduct can only be seen as serious here. I base this conclusion on the entire absence of notes as to why the vehicle was pulled over and the failure to respond in a timely way by providing will say statements within weeks of having the importance of the stop brought to their attention. I find that the lack of notes – and what followed upon the police realizing the relevance of the stop – resulted in a serious breach.

[53] It is non-controversial that police officers have a duty to make notes about the events that occur over the course of their shifts. Indeed, this was conceded in Wood v. Schaeffer, 2013 SCC 71, at para. 63 [Wood]. As noted by Moldaver J. in Wood, the importance of police notes to the criminal justice system is “obvious”: at para. 66. Justice Moldaver put it this way: “I have little difficulty concluding that police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation”: Wood, at para. 67. In Wood, the court referred to the OPP policy confirming the duty to record “concise, comprehensive particulars of each occurrence” and to make these notes during or as soon as practicable after an investigation: Wood, at para. 68.

[54] The need for notes is obvious. They serve multiple purposes. Among other things, notes provide officers with a way in which to refresh their memories, sometimes years after an incident has occurred. They permit a meaningful means by which to make disclosure of the Crown’s case. They are an effective and efficient way in which to memorialize why certain state action has been taken. And they ensure a degree of police accountability.

[55] One can well imagine scenarios where police notes are not as detailed as they could be or scenarios where no notes are taken. Police officers have difficult jobs and no one could reasonably deny them this fact. They are pushed and pulled in many different directions. Sometimes their need to create notes will give way to a more pressing public interest, such as an emergency call where their timely response is needed to protect the safety of an individual or individuals.

[56] While the need for notes cannot be unrealistic, and must be balanced against the many demands placed on officers, where they are put on notice that their notes are lacking, they should respond with dispatch, while their memories are still somewhat fresh. Here, while there is evidence that Cst. Perron was contacted by the Peel Regional Police fairly proximate to the stop in question, and that he was asked for a statement as to what occurred, he did not produce his one-page statement for another twenty months.

[57] I find that the delay in writing and providing his statement as to what occurred on July 28, 2009, soon after his lack of notes was brought to his attention, aggravates the seriousness of the Charter infringing conduct. As for Cst. Davis, while he produced his statement more quickly than Cst. Perron, it also took him many months to respond. If they had produced them more quickly, it may be that there could be more confidence in the reason for the stop.

[58] I find that the public’s confidence in the “rule of law and its processes” could be undermined by the admission of the evidence in these circumstances: Grant, at para. 73. This factor favours exclusion.

[59] As for the impact on the Charter protected interest, the court must determine the seriousness of the impact. The more serious it is, the more likely that this factor will point toward exclusion of the evidence: Grant, at paras. 76-78.

[60] I find little impact in this case. Mr. Kanthasamy was stopped in a motor vehicle and provided his licence. He has a lesser expectation of privacy in a motor vehicle. While I find on a balance of probabilities that the stop was without lawful authority, every driver who takes to the road runs the risk of being stopped by the police. This is the cost that attaches to the privilege of driving. He was not detained for long. The record check revealed no additional information. The stop had a minimal impact on him. This factor favours admission.

[61] The third prong is about balancing the truth seeking function of the criminal trial with the “integrity of the justice system”: Mann, at para. 57; Grant, at paras. 79-84. The Grant majority cited with approval from R. v. Kitaitchik (2002), 2002 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47: the trial court must ask “whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial”. See Grant, at para. 82.

[62] The exclusion of reliable evidence could cause the public to lose confidence in the administration of justice. At the same time, allowing for the admission of evidence, the reliability of which has been rendered suspect by a Charter breach, could have the same effect. The evidence here is reliable and has not been impacted by the Charter breach.

[63] In the context of reliable evidence, the court must consider whether exclusion of the evidence will result in the virtual termination of the prosecution’s case. The failure to prosecute a serious charge could have an impact on how the public perceives the administration of justice. For this reason, when considering whether to exclude evidence, the court should have regard to whether the exclusion will bring the prosecution to an end:

The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution. Grant, at para. 83

[64] While I appreciate the seriousness of the charges, I am cognizant of the need to protect the long-term repute of the administration of justice. The justice system must be “above reproach”. This is as true in a serious case as a non-serious case. While Mr. Kanthasamy’s presence in the motor vehicle, as having been gleaned from his licence having been produced, is reliable evidence, I am informed that the prosecution’s case does not rest on this evidence alone: Grant, at para. 84.

[65] In conclusion, I have weighed the various factors above. There is no mathematical equation that can be easily applied in the balancing exercise when determining s. 24(2) admissibility. On balance, I find that the admission of the evidence arising from the motor vehicle stop on July 28, 2009 would bring the administration of justice into disrepute. It is excluded from the trial.

Interaction at 50 Melham Court: August 27, 2009

Overview

[66] Cst. Kevin Robbins and Cst. Ian Jarvis were working in 42 Division during the early evening of August 27, 2009. They were in a marked police car. At 6:25 p.m. they were driving in an industrial complex area on a street named Melford Drive. They saw a black Mercedes-Benz parked near the back of a warehouse building at 50 Melham Court. The vehicle was parked facing the loading dock area of the building. The vehicle was not tight to the building.

[67] The black Mercedes was the only vehicle in the parking lot. This struck Cst. Robbins as odd. Both officers testified that this was a high crime area, known to the police for criminal conduct. Cst. Robbins said that the conduct included “booze cans, chop shops, general loitering, disposal of stolen autos, abandoned autos”. Cst. Jarvis testified that the area is also known for prostitution and drug activity. Businesses in the area have also experienced break and enters. While 50 Melham Court itself is not known for this conduct, the area on the west side of Melham Court is.

Evidence of Cst. Kevin Robbins

[68] The police pulled in behind the Mercedes which was facing west. The police vehicle was pointed north. It was two car lengths behind the Mercedes. Cst. Robbins testified that the police vehicle was not blocking the Mercedes and it could have driven away by backing up while turning or, possibly, going straight forward while turning.

[69] Bearing in mind the time of day, and that there were no other vehicles in the parking lot, Cst. Robbins decided to inquire about what the occupants were doing. He thought that they might be loitering and probably had no lawful right to be parked where they were. The officers ran the licence plate on the vehicle and it came back to a numbered company. The police then approached the parked Mercedes. Cst. Robbins went to the passenger’s side and Cst. Jarvis the driver’s side. It was no more than 1-2 minutes between when the officers parked their police cruiser and when they approached the Mercedes.

[70] The passenger’s side window was down when Cst. Robbins approached the car. He told the passenger that they were loitering and inquired about what the two men were doing there. He testified that the occupants told the officers that they were “just hanging out, that they were waiting for a friend, [and] that they were planning to go out and eat later”. They said that they were fasting as part of their religion.

[71] Cst. Robbins asked for the passenger’s identification. He provided his driver’s licence. Cst. Robbins said that he asked for identification because he wanted to know who he was speaking with and that he was investigating potential loitering. The photo on the licence matched the passenger and was in the name of Kanthasamy Thirumal.

[72] The officers returned to the police vehicle. Cst. Robbins said that Cst. Jarvis obtained the other occupant’s licence. His name was Mohamed Mashood. Record checks were run on both licences. This took about five minutes. Cst. Robbins recorded the information from the passenger’s licence on a field information report [“FIR”]. Cst. Robbins agreed with the suggestion that this was known as “carding”.

[73] The FIR had spaces to include information about name, address, and description. Cst. Robbins testified that the reason he wrote these details down was that the businesses were all closed, there were no other vehicles in the parking lot and the situation seemed somewhat suspicious. In addition, as businesses in the area had been “susceptible to break and enters”, Cst. Robbins saw this as an opportunity to “investigate the people that were in the area” in case something came up at a later date. The information could help to link later criminal conduct to people who had been in the area.

[74] The record check came back clear on the passenger, Mr. Kanthasamy. As for the driver, he was “flagged” by the PRP as a person of interest. Cst. Robbins testified that the officers contacted the PRP and were told that the driver was not arrestable, but that they should collect as much information as they could. He did not know why the PRP were interested in Mr. Mashood.

[75] When the officers returned to the vehicle, Cst. Robbins again dealt with the passenger, Mr. Kanthasamy. While he cannot specifically recall when he gave Mr. Kanthasamy his licence back, his practice is to do this as soon as he returns to a vehicle so that he does not forget. He has no recollection of Cst. Jarvis ever dealing with the passenger. He asked for and was provided with Mr. Kanthasamy’s phone number. He also noted some information on the card, including Mr. Kanthasamy’s estimated weight. His height and home address were taken from the licence.

[76] Cst. Robbins noticed white cotton gloves in the side panel pocket of the passenger’s door. It was an open panel in the door and he could see the gloves by leaning into the vehicle a couple of inches. The passenger’s side door was never opened. He had a cursory look around. When asked about the gloves, Mr. Kanthasamy said that they were a pair of his friend’s work gloves. As it was August, it struck Cst. Robbins as out of place that there would be gloves in the vehicle, particularly given that everything else in the car was clean and nothing was out of place.

[77] Cst. Robbins did not believe that he had grounds to arrest or detain the passenger. If he had declined to answer any questions, Cst. Robbins would have told him to leave the area as they were loitering in the back of 50 Melham Court. At no time did Mr. Kanthasamy tell Cst. Robbins that he did not have to answer his questions or that he wanted to be left alone. Cst. Robbins did not tell the passenger that he could leave. He did not tell him that he did not have to produce his licence. Cst. Robbins acknowledged that he has never seen anyone drive away while he has their licence.

[78] As for Mr. Mashood, Cst. Robbins testified that he told the officers that the vehicle belonged to his parents’ rental vehicle business. Cst. Robbins said that this seemed suspicious as, in his experience, rental vehicles are not registered to numbered companies. Rather, they are registered in the name of the rental company. They wanted confirmation that he was entitled to be in possession of the vehicle.

[79] Mr. Mashood seemed to be anxious to establish that he was doing nothing wrong. While Cst. Robbins was dealing with the passenger, Mr. Mashood exited the car. He opened the trunk of the vehicle and it was empty. The passenger never exited the vehicle.

[80] In the end, another vehicle caught the attention of the police. They went to investigate and the Mercedes left the area. It was 15-20 minutes between the time that the police first approached the vehicle on foot and when it drove away.

[81] Cst. Robbins did not have any difficulty communicating with the passenger. He seemed to understand his questions and he appeared in good physical condition.

Evidence of Constable Ian Jarvis

[82] Cst. Jarvis was on shift with Cst. Robbins. He has no notes relevant to this matter. He was only able to refresh his memory with the use of the details from what he referred to as a contact card. He remembered that he and Cst. Robbins saw a vehicle parked at 50 Melham Court. It was the sole vehicle in the parking lot. They pulled their police vehicle into the lot and went to speak with the vehicle occupants. He could not recall whether he spoke with the passenger or driver.

[83] He testified that contact cards are filled out so that the police have a record of who they speak with, who they investigate and what area they are in when they do so. If anything occurs in the future in those areas, such as break and enters, then the cards assist in conducting investigations. Cst. Jarvis testified that he does not make notes in his notebook every time he fills in a contact card because the information is already on the card. He has filled in hundreds of these cards in the past, up to 12 cards per shift. While he has not done so for the past 5 years, it was a major part of his daily activities in 2009. He has no recollection of looking in the trunk of the vehicle.

While he agreed that filling in contact cards was a “pretty regular activity” back then, he did not agree that he could simply go up to anyone on the street and ask for details. This was a high crime area. Most of the businesses run from 9:00 a.m. to 5:00 p.m. If there was a car in an empty parking lot, when the building was locked or deserted, the police would probably investigate that.

The Positions of the Parties

[84] Mr. Zaduk argues that from the moment that the police cruiser came to rest behind the Mercedes, it was impractical for his client to leave and he was detained within the meaning of s. 9 of the Charter. The two minutes that it took to run the licence plate and approach the car added to the atmosphere of oppression. So too did the approach of two police officers. The police were acting on nothing more than a “hunch” of criminal conduct involving loitering.

[85] When the officers had the occupants’ licences in the police vehicle, checking for whether they had records, Mr. Kanthasamy had no choice but to stay. Once the police determined that Mr. Mashood was a person of interest with PRP, the focus of the investigation shifted to a clearly criminal one. An example of this is when Cst. Robbins saw the gloves in the car door and asked questions about them. While Mr. Mashood may have been “eager” to help the police by opening his trunk, this is evidence that the occupants felt pressure from the police and that they were under suspicion. Mr. Zaduk says that they were both physically and psychologically detained. The detention was arbitrary.

[86] Mr. Zaduk says that I should exclude the evidence under s. 24(2) because the state conduct is serious. It is said that Cst. Jarvis gave alarming evidence about the fact that he carded so many people at the time. Counsel says that this raises the spectre of a surveillance society. This police interaction was about 6 weeks following the release of R. v. Grant, 2009 SCC 32 (released July 17, 2009) and the police should have known that they were engaged in an arbitrary detention. Their conduct was wilful and deliberate.

[87] As Mr. Kanthasamy was detained, Mr. Zaduk says that he should have been provided with his right to counsel. The failure to grant him this right resulted in a breach of his s. 10(b) rights. Moreover, the use of his driver’s licence to check against a police database, breached his s. 8 right to be free from unreasonable search.

[88] Like the July 28, 2009 stop, the defence say that having regard to all of the circumstances, the evidence should be excluded. This is particularly true, Mr. Zaduk says, when one has regard to the troubling evidence of Cst. Jarvis about how much carding he and his fellow officers were doing back in 2009.

[89] If the Charter arguments fail, Mr. Zaduk says that Mr. Kanthasamy’s statement should still be excluded because the Crown has failed to prove voluntariness beyond a reasonable doubt. Mr. Zaduk says that the handing over of a licence is akin to a written confession and, as such, the voluntariness rule applies to the information taken from the licence as well.

[90] Mr. Sone argues that I should accept the uncontradicted evidence of Cst. Robbins. Based on this uncontradicted evidence, the Crown argues that Mr. Kanthasamy was not detained. The police are permitted to engage a person in discussion and ask for their identification. While Mr. Kanthasamy could have refused to provide the police with the requested information, he chose to cooperate. Having chosen to do so, he cannot now turn the police-citizen interaction into a detention, let alone an arbitrary detention.

[91] If I find that the Crown is wrong, and there is a detention, Mr. Sone does not attempt to justify it as a lawful one. His position is that if there was no detention, then there was no need to provide the right to counsel. Moreover, if there was no detention, then there was no search within the meaning of s. 8 of the Charter. If I find there was a detention, then Mr. Sone concedes that there was a warrantless search which the Crown acknowledges was unreasonable within the meaning of s. 8.

[92] If I find a detention and, therefore, ss. 8 and 10(b) breaches, Mr. Sone argues that I should not exclude the evidence. Grant acknowledges the fuzzy line between detentions and police-citizen interactions. There was no bad faith on the part of Cst. Robbins. Despite the evidence of widespread carding, there is no evidence that any other carding resulted in a breach of an individual’s Charter rights. Moreover, there was little impact on Mr. Kanthasamy’s Charter protected interests here. He had a limited privacy interest in these circumstances.

[93] As for voluntariness, Mr. Sone says that there is no air of impropriety. The voluntariness of the statement part of the police interaction with Mr. Kanthasamy has been proven beyond a reasonable doubt. As for the provision of his licence, this does not require a voluntariness assessment as it is not a statement caught by the voluntariness doctrine.

The Law of Detention and Right to Counsel

[94] The accused bears the onus of establishing on a balance of probabilities that he was detained. As above, the Crown concedes, correctly in my view, that if Mr. Kanthasamy was detained, it was an arbitrary detention within the meaning of s. 9 of the Charter. As such, the important first question in this application is whether Mr. Kanthasamy was detained.

[95] Section 9 of the Charter grants individuals the right “not to be arbitrarily detained or imprisoned”. When people are “detained” or arrested, they must be promptly informed of the reason why their liberty interests have been constrained (s. 10(a)) and of their right to “retain and instruct counsel without delay” (s. 10(b)). As we learned in R. v. Suberu, 2009 SCC 33, at para. 2 [Suberu], barring exceptional circumstances involving concerns for officer or public safety, or reasonable limits prescribed by law and justified under s. 1 of the Charter, the right to counsel is triggered at the outset of a detention. As such, much turns on how “detention” is defined.

[96] Because s. 10 rights are inextricably linked to the crystallization of a “detention”, there are significant practical and legal implications arising from a finding of “detention”. The Charter jurisprudence, as it has evolved since Mann, has been sensitive to this fact; a sensitivity that is informed by the symbiotic relationship between the acknowledged need for the police to freely interact with citizens and the need to ensure that, despite police interaction, individuals remain free to move about in the community without being arbitrarily prevented from doing so.

[97] If a detention within the meaning of ss. 9 and 10 of the Charter were to manifest too early, the police could become paralysed in their ability to fulfil their duties. At the same time, if it were to manifest too late, individual liberty could be severely impacted.

[98] As early as Mann, Iacobucci J. addressed the need to set a reasonable threshold for when a “detention” is found for purposes of assessing Charter rights. He concluded that a detention for purposes of the Charter is only engaged where there is a delay that involves a “significant physical or psychological restraint”. He held:

The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by sections 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. Mann, at para. 19.

[99] In two important post-Mann cases, the Supreme Court revisited the concept of “detention” within the meaning of both ss. 9 and 10 of the Charter. In both Grant and Suberu, the court encouraged a purposive approach to the concept of detention: Grant, at paras. 28-29; Suberu, at para. 21.

[100] For purposes of ss. 9 and 10, a detention manifests where, by virtue of a “significant physical or psychological restraint at the hands of the state”, the individual’s liberty interest is suspended: Suberu, at para. 21. In Grant, the majority described a “detention” as requiring a “significant deprivation of liberty”: Grant, at para. 29. A liberty interest is suspended where an individual can no longer choose, either because they are physically or psychologically restrained, to walk away.

[101] The threshold for constitutionally protected detention demonstrates that is not every police-citizen interaction that will trigger ss. 9 and 10 protection. Nor will it be every time that a police officer keeps a citizen “waiting”. Nor will it even be every time that an officer is investigating and keeps a person waiting in the context of the investigation, that a “detention” within the meaning of the Charter will be found. As noted in Suberu, at para. 3:

… as this Court held in Mann, not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter. Section 9 of the Charter does not dictate 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. [emphasis added].

[102] In determining whether an individual has been detained, the court must look to both physical and psychological detentions. A physical detention exists where the individual is physically constrained. A psychological detention is comparatively more difficult to identify. They arise where a reasonable person in the individual's position would conclude that "he or she is not free to choose to walk away or decline to answer questions": Grant at para 41.

[103] Even where the police have “focussed suspicion” about an individual who they are interacting with, the police suspicion does not turn the encounter into a detention: Grant, at para. 41. What turns it into a detention is how the police interact with the individual, either by imparting a direction or demand to stay put, or by leaving the impression that the individual has no choice but to stay put.

[104] Where there is no physical constraint placed on the individual, and no legal obligation to comply with a police direction, the test for detention is an objective one. The court must look to various factors to determine whether a reasonable person in the individual's situation -- bearing in mind the totality of circumstances -- would conclude that he or she could not walk away. The following non-exhaustive list of factors from Grant, at para. 44, can be taken into account in determining whether the individual was psychologically detained:

a) The circumstances giving rise to the encounter as 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 focussed 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.

[105] Owing to the fact that the test is an objective one, it is unnecessary for an accused to testify in order to establish a psychological detention: Grant at para. 50. It is important to remember, though, that the burden rests on the accused to establish on a balance of probabilities that he or she was “effectively deprived of his or her liberty of choice”: Suberu, at para. 28. While the test is an objective one, as noted in Suberu, the position that the police conduct “effected a significant deprivation” of the accused’s liberty “must find support in the evidence”: Suberu, at para. 28.

[106] While every case must be decided on its own facts, it is worth recalling how these legal principles were put to work in Suberu. He and a friend arrived at an LCBO and attempted to make a liquor purchase that raised the suspicions of staff. The police were called and arrived.

[107] Suberu attempted to leave, saying to an officer, “he did this, not me, so I guess I can go”. The officer said “Wait a minute. I need to talk to you before you go anywhere”. Mr. Suberu was told to “wait” while already seated in the driver’s seat of a minivan. He was then asked a number of questions about who his friend was, the name of his friend, where he was from, how they had travelled that day, who owned the van, and, because he said it was his girlfriend’s van, what his girlfriend’s name was.

[108] Mr. Suberu was asked for his identification. The officer looked in the van and saw certain items that he believed provided him with grounds to arrest. It was only at this point that Suberu was arrested and provided with his right to counsel.

[109] Against this factual backdrop, the majority concluded that Suberu was not “physically restrained prior to his arrest” and would not have been subject to legal sanction for refusing to comply with the officer’s request that he “wait”. As such, “obvious markers of detention” were not present: Suberu, at para. 26. The sole question became whether he was psychologically detained. This required the court to consider whether a “reasonable person in the same situation” would conclude that he was not free to go and “had to comply with the officer’s request”: Suberu, at para. 26.

[110] The majority concluded that the officer was merely orienting himself to the situation and not intending to deprive Suberu of his liberty interest. They focussed in on the “perspectives of the person spoken to in the dynamic context of the evolving situation”: Suberu, at para. 34. In reaching the conclusion that Suberu had not been detained, the majority held:

the fact that a person is delayed by the police is insufficient to ground a reasonable conclusion that he or she was not free to go, or that he or she was bound to comply with the officer's request for information. Mr. Suberu did not testify on the application, and there was no evidence as to whether he subjectively believed that he could not leave. Nor was there evidence of his personal circumstances, feelings or knowledge. The only evidence came from [the officer], who testified that he was merely "exploring the situation". The Officer testified that Mr. Suberu never told him that he did not wish to speak with him, and that the conversation was not "strained".

[111] I take the time to go through the Suberu analysis because it captures the essence of the “significant” deprivation of liberty that is intended to be protected by ss. 9 and 10 of the Charter.

[112] There was emphasis placed on vehicle stops in this voir dire. Detailed arguments were made about the constitutional differences between drivers and passengers in the context of vehicle stops. There are numerous authorities that assist in amplifying upon when a passenger in a motor vehicle becomes subjected to a constitutionally protected detention. See: R. v. Humphrey, 2011 ONSC 3024 [Humphrey]; R. v. Frank, 2012 ONSC 6274.

[113] In the end, I need not review these authorities, which apply the Mann, Grant, Suberu principles in the stopped motor vehicle context. This review is unnecessary because the Mercedes was not stopped by the police. Instead, the police came across the already parked Mercedes in which two occupants sat. As they told the police, they were just waiting for a friend. They could have just as easily been sitting on a curbside waiting for a friend. From a s. 9 perspective, the fact that they were sitting in a parked vehicle, in a warehouse parking lot, is a red herring. The police required no legal authority to approach the vehicle: R. v. Calder (2004), 2004 36113 (ON CA), 47 M.V.R. (4th) 20 (Sup. Ct.), at para. 3. As such, I assess the police-citizen interaction in this case through a Mann, Grant, Suberu lens.

[114] There is nothing wrong with asking an individual for identification: R. v. Grafe (1987), 1987 170 (ON CA), 36 C.C.C. (3d) 267 (Ont. C.A.), at para. 11 (CarswellOnt); R. v. L.B., 2007 ONCA 596, at para. 51; R. v. Hall (1995), 1995 647 (ON CA), 79 O.A.C. 24, at para. 26 (CarswellOnt); Humphrey, at paras. 122-23. Nor will asking for identification necessarily trigger a detention.

[115] It is important not to confuse an individual’s decision to speak with the police with a detention. People speak to the police for all kinds of reasons that are disconnected from compulsion. Sometimes they do so because they think it may inure to their benefit. Sometimes they do so because they feel morally or civilly obligated to do so. In terms of these latter reasons, Krever J.A. addressed them in Grafe:

The law has long recognized that although there is no legal duty, there is a moral or social duty on the part of every citizen to answer questions put to him or her by the police and, in that way to assist the police: see, for example, Rice v. Connolly, [1966] 2 All E.R. 649 at p. 652, per Lord Parker C.J. Implicit in that moral or social duty is the right of a police officer to ask questions even, in my opinion, when he or she has no belief that an offence has been committed. To be asked questions, in these circumstances, cannot be said to be a deprivation of liberty or security.

[116] While Grafe was released almost two decades ago, it has withstood the test of time and been absorbed into the current jurisprudence as it relates to s. 9. Indeed, this very passage was cited with approval by the Grant majority at para. 37. While a person may well come to regret having spoken to the police, such ex post facto regret does not dictate whether he or she was detained when the choice to speak was made.

[117] Of course, if a person is asked for identification while being detained, then his or her s. 8 right to be free from unreasonable search and seizure may be activated. As noted by Doherty J.A. in R. v. Harris (2007), 2007 ONCA 574, 225 C.C.C. (3d) 193 (Ont. C.A.), at para. 42 [Harris], where a request for identification is made in the context of a “detention in which the detained individual reasonably feels compelled to answer the request for identification, then the question assumes a coercive quality in the nature of a demand, which suggests a state seizure of the response [cases omitted]”.

Was Mr. Kanthasamy Detained?

Credibility Findings

[118] I am satisfied that Cst. Robbins was a truthful witness. He provided his evidence in a clear manner. He testified with the use of notes that he took at the time of the incident. He was a non-defensive and careful witness. He did not have an agenda. He answered questions put to him in-chief and, more importantly, in cross-examination in a responsive fashion. He clearly had a good recollection of the events that transpired on August 27, 2009. I accept his evidence as true.

[119] This is equally true of Cst. Jarvis. Like Cst. Robbins, he did not have an agenda. This is clear from his candid evidence that he has very little recollection of the interaction with Mr. Kanthasamy and Mr. Mashood. It is also clear in his very frank evidence about “carding”. He testified in a straightforward and forthright manner. I accept his evidence as true.

The Grant Factors

Physical Detention

[120] I find as a fact that Cst. Robbins dealt with Mr. Kanthasamy in the manner described. At no time was he physically restrained. Nor was he under a legal obligation to remain at 50 Melham Court. Instead, it was his choice to be at Melham Court. As the occupants told the officer, they were “waiting for a friend” and planning to go out and eat later. As such, and unlike Suberu, Cst. Robbins did not stop Mr. Kanthasamy from going somewhere. Instead, he approached Mr. Kanthasamy and engaged him in discussion in a location where he was already waiting of his own free will.

[121] At no point was Mr. Kanthasamy directed to do anything. He was not told he could not leave. He was not told to wait a minute. He was not told that he had to place his hands where the officers could see them. He simply stayed in the vehicle, in the exact position he was sitting in when he was originally approached.

Psychological Detention

• The circumstances giving rise to the encounter as would reasonably be perceived by Mr. Kanthasamy

[122] The police approached the black Mercedes because of a constellation of factors that caused them to inquire as to what the occupants were doing at the back of an apparently closed industrial-like building, located in an area known for all manner of crime. I find that when they approached the vehicle they were doing nothing more than orienting themselves to the situation. We know from Cst. Robbins, who dealt with Mr. Kanthasamy, that he did not have grounds to detain the individuals. He wanted to know why they were sitting in a car at the back of an industrial building in a high-crime neighbourhood when no other vehicles were around.

[123] I find as a fact that the police vehicle was positioned in a way that permitted the Mercedes to leave. As well, Mr. Kanthasamy could have got out of the car and walked away. The police spent no more than 1-2 minutes checking the licence plate on the Mercedes before approaching the car. I find that this was a reasonable amount of time and did not trigger a psychological detention.

[124] There was nothing wrong with engaging Mr. Kanthasamy in conversation in these circumstances. Asking him what he was doing in a car in an abandoned parking lot in the back of an industrial building located in a high crime area did not trigger a psychological detention. As in Suberu, the police are not precluded from interacting with members of the public until they have grounds to connect a person to a crime. The police had no such grounds here. The circumstances struck Cst. Robbins as odd and worth engaging Mr. Kanthasamy on. Nothing more.

[125] The fact that he asked Mr. Kanthasamy for his identification was acceptable. As noted by Cst. Robbins, had Mr. Kanthasamy declined to provide his identification, or answer any questions, Cst. Robbins would have simply told him to leave the area. Instead, Mr. Kanthasamy chose to provide his licence to the officer. It was checked against police records, but nothing was found. While Mr. Mashood came back with the information that he was flagged by the PRP, the TPS had no grounds to detain the men. Indeed, they were told by the PRP that there were no grounds to arrest them and, in fact, the PRP did not say why they were interested in Mashood. They were not subjected to a focussed investigation.

[126] When Cst. Robbins returned to the car, he was not conducting a focused investigation. Unlike Grant, where the matter eventually turned to “particularized suspicion”, this never happened here. The fact that the officers eventually became distracted with another vehicle driving through the parking lot, and attended to that vehicle, after which the Mercedes drove away, underscores the fact that they were not focussed on investigating the occupants of the Mercedes. Even after Cst. Robbins returned to the car, there was nothing that suggested an interrogation. Cst. Robbins was not attempting to elicit incriminating information from the accused.

[127] While Mashood showed the officers the trunk of the vehicle, there is no evidence to suggest that he was asked or directed to do so. Mr. Mashood may have chosen to do this for any number of his own personal reasons. I do not find that his having done so lends an air of detention to the police-citizen encounter.

[128] While Cst. Robbins filled out a card respecting Mr. Kanthasamy, asking for his telephone number, and making some observations about his appearance, these are details he could have just as easily put into his notebook. “Carding” has been the subject of much public discussion in the recent past. It is a controversial topic and one that I need not address in the context of these reasons. I do note, though, that this was not a random stop of an individual strictly designed to permit the police to gather information about the individual.

[129] The police approached the Mercedes and engaged its occupants for the reasons stated. While they were not investigating a crime that had been or was being committed, they approached the vehicle for a reason. There is nothing wrong in circumstances such as these, with the police keeping a record of who they have interacted with.

[130] While the gloves in the car door struck Cst. Robbins as odd, and he inquired about what they were for, it is reasonable that he did so. Gloves in late August struck him as unusual. If the gloves had been on Mr. Kanthasamy’s hands, that would have been unusual as well and resulted in the same question being asked. Like in Suberu, the officer was “exploring the situation”: Suberu, at para. 34.

[131] In the end, Mr. Kanthasamy chose to give his licence to Cst. Robbins and chose to answer the questions put. When his licence was being checked, he chose to remain in the car where he had been waiting for his friend all along.

• The nature of the police conduct

[132] At no time did Cst. Robbins give Mr. Kanthasamy a direction. Unlike Mr. Suberu, he was not even told to “wait”. Nor was he told that Cst. Robbins wanted to speak with him before he left. Nothing Cst. Robbins said would lead Mr. Kanthasamy to think that he needed to stay put. Nothing Cst. Robbins said would lead Mr. Kanthasamy to think that he was under police control. As Mr. Kanthasamy did not testify, I have no evidence before me that contradicts the objectively based conclusion that the police conduct would not have caused the accused to think he was detained. Moreover, Cst. Robbins spoke to the accused politely and in a non-threatening fashion. Viewed objectively, Cst. Robbins’ conduct did not give rise to an aura of detention.

• Mr. Kanthasamy’s particular characteristics and circumstances

[133] There is nothing to suggest that Mr. Kanthasamy’s personal characteristics may have contributed to a feeling that he was detained. Like the other points of inquiry, this one is objectively based. While I am not privy to what Mr. Kanthasamy subjectively believed, I have had an opportunity to observe him in court. He is a member of a minority group which is a relevant consideration that I take into account: Grant, at para. 44. He is an adult male with an imposing stature. He looks mature.

Conclusion

[134] In the end, I find that Mr. Kanthasamy seemed intent on speaking to the police. The entire police interaction with Mr. Kanthasamy and Mr. Mashood went for about 15-20 minutes. I conclude that the accused was not the subject of a significant physical or psychological restraint during this time. A reasonable person in Mr. Kanthasamy’s position could have chosen to stay silent or walked away. The fact that Mr. Kanthasamy chose to stay where he had been waiting for his friend, and chose to speak to the police, did not result from a significant deprivation of liberty imposed by the state.

[135] I am not satisfied on a balance of probabilities that he was detained. The s. 9 application is dismissed.

The Alleged s. 8 Breach

[136] Mr. Kanthasamy also says that his s. 8 right were breached when his identification was given over and he answered certain questions. The lack of detention is dispositive of the s. 8 issue in this case. As noted by Doherty J.A. in Harris, a s. 8 breach arising from information given to the police and any subsequent database search is contingent on the individual being “detained”. In Harris, at para. 33, Doherty made this point:

Answers to police questions may or may not give rise to a s. 8 claim. As with other aspects of the s. 8 inquiry, a fact-specific examination of the circumstances is necessary. Where the subject of the questioning is under police detention and reasonably believes that he or she is compelled to provide the information sought in the questions, I do not think it distorts the concept of a seizure to describe the receipt of the information by the police as a non-consensual taking of that information form the detained person.

[137] In a similar vein, Doherty J.A. later said that a person who is “under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police”: Harris, at para. 44.

[138] My finding that Mr. Kanthasamy was not detained means that his s. 8 interests were not triggered when he provided his identification to the police. Nor were they engaged when his identification was checked against the police database. Aside from the fact he was not detained, the police gleaned no information about Mr. Kanthasamy when they checked his identification in the database. As such, to the extent that such information can be considered privacy protected, there was no such information found in this case.

[139] Mr. Kanthasamy’s s. 8 rights were not breached.

The Alleged s. 10(b) Breach

[140] As above, the right to counsel must be provided immediately upon detention. As Mr. Kanthasamy was not detained, he had no right to counsel. His s. 10(b) rights were not infringed.

Voluntariness

[141] The oral utterances made by Mr. Kanthasamy to Cst. Robbins constitute a statement. Among other things, these utterances include reference to his telephone number and comment about the gloves in the door. These were statements to a person who Mr. Kanthasamy knew to be in authority. Clearly, the voluntariness doctrine applies to these oral utterances.

[142] The Crown must prove the voluntariness of an accused’s statement beyond a reasonable doubt. The higher admissibility threshold placed on questions of voluntariness is designed to fend off against the admission of unreliable statements and or those that serve to harm the reputation of justice because unacceptable tricks have been used.

[143] The voluntariness rule itself attempts to strike a balance between the interests of the accused in maintaining a choice whether to speak, and society, by protecting the societal interest in the effective investigation of crime. Maintaining a choice about whether to speak protects against unreliable confessions. In R. v. Oickle, 2000 SCC 38, 2000 S.C.C. 38, at para. 33 [Oickle], Iacobucci J. noted, “[a]ll who are involved in the administration of justice, but particularly courts applying the confessions rule, must never lose sight of either of these objectives.” See also: R. v. Singh, 2007 SCC 48, 2007 S.C.C. 48, at para. 45 [Singh]; R. v. Hebert, 1990 118 (SCC), [1990] 2 SCR 151, at p. 180 [Hebert].

[144] The first stage of the voluntariness inquiry involves assessing whether there have been inducements, such as promises or threats, sufficient to overcome the will of the accused: Oickle, at para. 57; R. v. Spencer, 2007 SCC 11, at paras. 15, 17. At this stage, the court also looks to whether the individual has an “operating mind” and whether there has been an atmosphere of oppression created by the police, sufficient to cast doubt on the voluntariness of the statement.

[145] As for oppression, it has the potential to produce false confessions: Oickle, at para. 58. Oppression can result from the police creating conditions so distasteful that there is a risk that the accused will make a “stress-compliant confession” to escape the conditions. Alternatively, as set out in Oickle, oppressive circumstances can also run the risk that the suspect’s will could be overborne “to the point that he or she comes to doubt his or her own memory” and “believes the relentless accusations made by the police, and gives an induced confession”, at para. 58.

[146] In terms of an operating mind, the court’s focus should be on whether the accused is aware of what he is saying and that he is saying it to the police who can use it against him and to his detriment: R. v. Whittle, 1994 55 (SCC), [1994] S.C.J. No. 69, at para. 49.

[147] At the second stage of the voluntariness inquiry, and where relevant, the court assesses whether police trickery was used in obtaining the statement and, if so, whether the trick or tricks were sufficient to shock the community: Oickle, at paras. 65-67. There is no suggestion of a trick in this case.

[148] While the voluntariness doctrine can apply to written statements made by an accused to a person the accused knows to be in a position of authority, there was no written statement here: Watt's Manual of Criminal Evidence 2015, at § 37.01; R. v. Walcott, 2008 11374 (ON SC), [2008] O.J. No. 1050 (S.C.J.), at para. 140. While counsel likens the handing over of a driver’s licence to the police, to a written statement made by the accused, by looking to the core rationale that supports the voluntariness rule, we can see that they are not the same.

[149] The confessions rule applies to written and oral statements because they are utterances. The confessions rule places an onus on the Crown to establish, beyond a reasonable doubt, that a statement by an accused to a person in authority is voluntary because of a deep-rooted concern about reliability of utterances made in these circumstances.

[150] The information gleaned from a driver’s licence is antithetical to the very purpose of the voluntariness rule. It is concrete, reliable evidence, unsusceptible to change as a result of inducements, oppression and the like. The voluntariness doctrine has nothing to do with drivers’ licences or like documents. Conversely, comments made by accused to the police at the roadside are governed by the voluntariness rule.

[151] As such, the voluntariness doctrine only applies to the oral utterances made by Mr. Kanthasamy on August 27, 2009. I find, beyond a reasonable doubt, that those utterances were voluntarily made. He was treated politely and with respect by Cst. Robbins. There is no evidence to suggest that he was induced to speak through fear of prejudice or hope of advantage. He was promised nothing and threatened with nothing. Indeed, no suggestion was put to Cst. Robbins that he engaged in any of this conduct.

[152] Mr. Kanthasamy was asked questions and provided responsive answers. He was entirely coherent. He was not detained. Cst. Robbins’ evidence satisfies me that Mr. Kanthasamy was not suffering from a lack of an operating mind. His statements made during his interaction with Cst. Robbins were voluntary.

[153] The statements are admissible.

Conclusion

[154] Mr. Kanthasamy was not detained. Having him identify himself, and running his identification against the police database, did not breach s. 8 of the Charter. As he was not detained, the police were not required to provide him with his right to counsel. His statements were voluntarily made.

[155] I wish to thank counsel for their very helpful and detailed arguments.

FAIRBURN J

Released: December 9, 2015

COURT FILE NO.: CRIM J (P) 697/13

DATE: 2015 11 25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown

- and -

DALEY, KANAGASIVAM, BASKARAN,

KANTHASAMY and PATHMANATHAN

Defence

RULING #5 - Voluntariness Statement

and Charter Motion – Kanthasamy

FAIRBURN J

Released: December 9, 2015