CITATION: R. v. Mascoe, 2015 ONSC 7746

BARRIE COURT FILE NO.: CR-15-34

DATE: 20151211

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JASON MASCOE

Applicant

C. Noordegraaf, for the Crown

F. Ferri, for the Applicant

HEARD: November 9 and 10, 2015

RULING

MULLIGAN J.:

[1] On January 15, 2014, Jason Mascoe was arrested for simple possession of cocaine and possession of cocaine for the purposes of trafficking. The arrest took place on a residential street in the City of Barrie while Mr. Mascoe was driving a rental Jeep vehicle. Various Barrie Police Services officers had observed his activities prior to his arrest, beginning the previous evening. At the time of his arrest, the police located a .02-gram piece of crack cocaine on the floor of the driver’s side of the vehicle. A subsequent search of the vehicle at the police station located 5.5 grams of crack cocaine tucked into the interior driver’s side visor inside the vehicle. The defence brings this application seeking an order to exclude this evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, alleging that these items were seized in contravention of the applicant’s rights under sections 8 and 9 of the Charter. The defence submits that there were no reasonable grounds to arrest Mr. Mascoe because the officers’ subjective beliefs were not objectively reasonable, and further that the warrantless search of Mr. Mascoe’s vehicle was unlawful because there were no exigent circumstances that prevented the police from obtaining a search warrant prior to the search.

[2] The Crown opposes the application on the basis that there were grounds to arrest Mr. Mascoe and that the search conducted was incident to a lawful arrest. The Crown submits in the alternative that even if there were breaches of Mr. Mascoe’s s. 8 or 9 rights, the evidence should not be excluded.

[3] Six officers from the Barrie Street Crimes Unit gave evidence on this voir dire hearing. They testified as to what they saw on January 14 and January 15, 2015, as they observed Mr. Mascoe’s movements in his vehicle while he briefly interacted with several females.

Observations on January 14, 2014

[4] On January 14, 2014, Det. Const. Mark Hankin was working in the Street Crimes Drug Unit. He has been an officer since 2003, and has taken general investigative courses, as well as a drug investigation course. He has worked in 30 to 50 street-level drug investigations. Around 8:00 p.m. that evening, he saw Mr. Mascoe driving in the Essa Road area. Mr. Mascoe was known to him from previous drug investigations. The officer was aware of his record and had found crack cocaine in Mr. Mascoe’s vehicle on another occasion. He alerted other members of the surveillance team, and followed Mr. Mascoe. At 8:04 p.m., he saw a female approach Mr. Mascoe’s vehicle and reach her hand in through the passenger window. He drove by, and another officer continued to follow Mr. Mascoe.

[5] Det. Const. Andrew Pye was also on duty that evening as a member of the Street Crimes Unit. He was the officer in charge of the surveillance team. At 8:02 p.m., he got a message that Mr. Mascoe was observed driving within the City of Barrie. This officer knew him from previous interactions related to both the Highway Traffic Act and drug charges, and determined that the team would focus on him. He observed Mr. Mascoe at 8:45 p.m. at a residence. At 8:52 p.m., Mr. Mascoe was driving when he pulled over his vehicle and a female person came to the driver’s side of the car. The window was down and her right hand went inside the vehicle and pulled out. The officer continued driving by.

[6] He observed Mr. Mascoe’s vehicle again at 9:10 p.m. on Kozlov Street. The car was parked with its four-way flashers on. A female came along and got in the driver’s side of the vehicle. The vehicle did a U-turn and the officer lost sight of the vehicle.

[7] The next day, January 15, 2014, police again observed Mr. Mascoe’s activities. Det. Const. Stewart Fehrman had followed Mr. Mascoe briefly the previous day. He had been a member of the police department for 12 years and has taken a number of investigative courses, including a two-week drug investigation course in Ottawa. On January 15, he again followed Mr. Mascoe’s vehicle and saw him stop on Gibbon Drive where a female was waiting at the roadside. She approached the passenger side window, reached her hand in, withdrew it and walked away. That female was arrested and searched, but later released. He noted that the female’s hand movement was fluid and almost instantaneous. Mr. Mascoe was alone in the car and drove on.

[8] Sgt. David Luce was also part of the surveillance team following Mr. Mascoe on January 15. He was the Street Crimes Unit supervisor and had been a police officer for 19 years. He also observed the female approaching Mr. Mascoe’s vehicle on Gibbon Drive around 12:20 p.m. He observed what he thought was a hand-to-hand transaction with Mr. Mascoe.

[9] Det. Const. D. Kelk also observed Mr. Mascoe’s vehicle at 12:20 p.m. on January 15. He saw a female approach the vehicle, lean in for 30 seconds, and then walk away. He was present for her arrest. In his experience, drug traffickers in a vehicle will often stop and meet a buyer for a quick interaction, often described as a “hand-to-hand” transaction. No drugs were found on the female and she was later released.

[10] Det. Const. Mark Hankin made the decision to arrest Mr. Mascoe based on his own observations and reports from other officers who had been observing Mr. Mascoe. Mr. Mascoe was arrested at 12:27 p.m., after being pulled over on a residential street. With some difficulty, Officer Hankin was able to extricate Mr. Mascoe from the vehicle with the help of other officers who were then on the scene. Cell phones and some currency could be seen from the door. A cursory search of the vehicle indicated a piece of crack cocaine on the driver’s side floor and cash in the console. The officer was aware of how Mr. Mascoe had hidden cocaine in a vehicle in a previous occurrence. He decided to have the vehicle towed to the police station for a further search. He waited in his cruiser until a towing company arrived and then accompanied the tow truck to the police station. At about 1:47 p.m., Det. Const. D. Kelk conducted a search of Mr. Mascoe’s vehicle. He noted the roofline above the visor on the driver’s side had a gap in the trim. He pulled down on this area and found 5.5 grams of crack cocaine in this void.

The Law

[11] Both Crown and defence filed cases for the court to consider with respect to whether the officer had reasonable and probable grounds for arrest and whether the warrantless search was lawful in the circumstances.

[12] Defence counsel relied on R. v. Brown, 2012 ONCA 225, 286 C.C.C. (3d) 481. In that case, while on patrol, the police officer believed he had witnessed a hand-to-hand transaction between the accused and another person and made an arrest. Drugs were found on the accused. The Court of Appeal found that there was no basis for this arrest and that there was nothing particularly suspicious about the conduct of the accused. The Court concluded, at para. 19:

In our view, despite the police officer’s honest belief that he had reasonable and probable grounds to arrest the appellant, the totality of the circumstances do not provide a basis upon which that belief could be said to be objectively reasonable. The arrest was unlawful and infringed the appellant’s right not to be arbitrarily detained.

[13] The Crown relied on R. v. Amare, 2014 ONSC 4119. In that decision, Justice Hill reviewed the governing principles relating to reasonable grounds for an arrest. Three of Justice Hill’s fourteen points bear repeating here, as set out at para. 83:

(4) [N]ot only must the police officer have reasonable grounds in the subjective sense of a personal, honestly-held belief, but also the asserted grounds must be justified upon an objective measure of a reasonable person standing in the shoes of the officer. [Citations omitted.]

(5) [I]n other words, the ‘reasonable grounds to believe’ standard “consists of compelling and credible information that provides an objective basis”, objectively discernible facts, for drawing inferences as to the existence of factual circumstances. [Citations omitted.]

(12) An officer’s training and experience may provide “an objective experiential … basis” for grounds of belief. [Citations omitted.]

[14] The Crown also relied on R. v. Grant and Campbell, 2015 ONSC 1646. In Grant and Campbell, Justice K.L. Campbell reviewed the general principles regarding search incident to arrest. As he noted, at para. 74:

Generally speaking, warrantless searches and seizures are presumptively unreasonable. Nevertheless, the courts have long recognized the power of police officers to perform warrantless searches and seizures when they are truly incidental to the lawful arrest of an individual. The rationale for the existence of this long-standing search and seizure power is that when police officers arrest an individual, they need to be able to prevent any possible escape, protect themselves against any weapons that may be in the possession of the accused (or within his or her immediate surroundings), and preserve any available evidence of the alleged offence for which the accused is being arrested. [Emphasis added.]

[15] In Amare, Justice Hill reviewed the scope of police authority to search a vehicle without a search warrant. Hill J. noted, at para. 85(5), “In appropriate cases, a search incident to arrest may be executed upon a motor vehicle.”

[16] In the Supreme Court of Canada decision R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, Justice Moldaver noted, at para. 31, “This court has held that motor vehicles, though emphatically not Charter-free zones, are places in which individuals have a reasonable but reduced expectation of privacy.”

[17] In MacKenzie, Justice Moldaver, at para. 63 also expressed the importance of conducting an analysis of the officer’s reasonable suspicion, “through the lens of a reasonable person ‘standing in the shoes of the police officer’.” [Citations omitted.]

[18] That standard was applied by the Court of Appeal for Ontario in R. v. Wu, 2015 ONCA 667. As Epstein J.A. noted for the Court, at para. 52:

While, as noted, the guidance provided by Moldaver J. was in the context of reasonable suspicion, the obligation to consider the evidence the police relied upon from this particular vantage point applies equally to the objective reasonableness analysis for reasonable and probable grounds to arrest. [Citations omitted.]

[19] Epstein J.A. summarized the test as follows, at para. 49:

To establish reasonable and probable grounds for arrest, a police officer must subjectively believe that a person has committed or is about to commit an indictable offence, and the police officer must be able to justify that belief on an objective basis, meaning that a reasonable person placed in the position of the police must be able to conclude that there were reasonable and probable grounds. The police need not demonstrate anything more than reasonable and probable grounds. Specifically, the police need not establish a prima facie case for conviction. [Citations omitted.]

[20] In overturning the trial judge’s decision to exclude the evidence, Epstein J.A. further noted, at para. 56:

[The arresting officer] made it clear that his conclusion that there were grounds to arrest Wu was not the result of a snap judgment. Rather, it was a conclusion reached based on evidence gathered over the course of an investigation that started with a tip and evidence linking Wu to Jiang and that appeared increasingly fruitful as observations were made during two months of surveillance.

[21] I am satisfied that Officer Hankin had reasonable and probable grounds to arrest Mr. Mascoe. He observed Mr. Mascoe and knew of his history. But he did not immediately arrest him when he first observed him on January 14. Instead, he alerted the Street Crimes Unit, which then made multiple observations of Mr. Mascoe. This officer observed what he thought was a hand-to-hand transaction by Mr. Mascoe from his vehicle. Other officers saw two other interactions with females that evening. One female approached his vehicle, reached in the window and then left. Shortly thereafter, Mr. Mascoe picked up another woman and drove off.

[22] The next day, other officers witnessed another interaction with a female approaching his vehicle and reaching in. That female was arrested but later released.

[23] The officers knew that Mr. Mascoe was driving a rented vehicle. They knew he had a record for drug trafficking. They observed him with respect to these brief interactions over a two-day period. Det. Const. Hankin had been a peace officer since 2003. He had spent four years with the Street Crimes Unit and had received training in general investigation, surveillance and drug transactions. Mr. Mascoe’s arrest was not the result of a snap judgment. In all of the circumstances, I am satisfied that the police officer had the subjective belief to arrest Mr. Mascoe and that that belief was objectively reasonable when viewed through the lens of a reasonable person standing in the shoes of a police officer.

Search Incident to Arrest

[24] I am satisfied that the search incident to arrest was reasonable under the circumstances. It is clear that there is a lower expectation of privacy for the search of a motor vehicle. A warrantless search of a vehicle is authorized if it is incident to arrest. The initial brief search of the vehicle indicated crack cocaine on the floor of the vehicle. The arresting officer was aware that Mr. Mascoe had secreted drugs in a vehicle on a previous occasion. Rather than conducting a search at the roadside in a residential neighbourhood, he took reasonable steps to have the vehicle towed to the station. He waited at the roadside until the tow truck arrived, followed it to the station, and another officer conducted a search. That officer found 5.5 grams of crack cocaine secreted within the rental vehicle. I am satisfied that this warrantless search, when all factors are considered, was a search incident to arrest.

Are the Drugs Admissible Even if the Arrest was Unlawful?

[25] I am satisfied that even if I found that Officer Hankin’s arrest was unreasonable in the circumstances, I would still have admitted the drugs. When conducting the three-prong analysis under s. 24(2) of the Charter, I find that all three considerations point to admission of the evidence. First, I am satisfied that the police had a good faith basis for their arrest of Mr. Mascoe in view of their collective observations of him that day and the day before. Second, the privacy interests implicated in searching a vehicle are lower than those in the search of an individual or their home. Finally, the discovery of the drugs constitutes reliable evidence upon which to ground the Crown’s case. Therefore, I would have admitted the evidence even if the defence had made out a violation of Mr. Mascoe’s ss. 8 and 9 rights in this case.

Conclusion

[26] The defence application is dismissed.

MULLIGAN J.

Released: December 11, 2015