ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIM (F) 770/15 and CRIM (F) 780/15
DATE: 20151211
B E T W E E N:
HER MAJESTY THE QUEEN
Victoria Rivers, for the Crown
- and -
JASON GILL
Shaunna Kelly, for the defence
HEARD: November 10, 12, 13, 20, 2015
REASONS FOR JUDGMENT
F. Dawson J.
[1] Jason Gill is charged with possession of both marijuana and heroin for the purpose of trafficking. He is charged in a separate indictment with breaching the terms of a recognizance of bail by having the marijuana and heroin in his possession. The date of all of the alleged offences is July 10, 2014.
[2] The trial of the drug charges proceeded before me as a judge alone trial. The issues relate to whether the police officer who arrested the accused violated Mr. Gill’s ss. 8, 9 and 10(b) Charter rights and whether the evidence should be excluded. Counsel agree that my determination of these issues will resolve the guilt or innocence of Mr. Gill on all charges in both indictments one way or the other.
[3] The Crown called two witnesses. The accused did not testify or call any evidence.
[4] Usually the onus is on the accused on a balance of probabilities to demonstrate one or more of the Charter violations alleged and to establish that the evidence should be excluded pursuant to s. 24(2) of the Charter. However, as the search in this case was warrantless the onus in on the Crown to establish that the search was reasonable: Hunter et al. v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 161. As the Crown’s position is that the search is justifiable as incident to a lawful arrest the Crown bears the burden or demonstrating that the arrest was lawful, insofar as the s. 8 challenge is concerned: R. v. Brown, [1996] O.J. No. 704 (C.A.).
The Evidence
[5] On July 10, 2014 Daijelle McFarlane worked as a barista at the Second Cup coffee shop located in the large shopping plaza across the street from the Davis Courthouse in Brampton. She had been advised by her supervisors that a particular male had been using the washroom of the coffee shop on occasion and that needles, blood and wine bottles had been found afterwards in the washroom. She had been shown security video of the individual, whom she identified as the accused. She was instructed to call the police if he used the washroom again.
[6] On July 10, 2014 Ms. McFarlane saw the accused enter the washroom, where he remained for about 10 minutes. When he came out she called the police and told them what had been happening. She provided a description of the accused and said he had just left the coffee shop.
[7] Soon after that call was made Cst. Christine Lovell heard a police radio broadcast. At that time she was in uniform in a “ghost car” with faded police markings. She had just left the courthouse and she responded to the call, which was just across Hurontario Street.
[8] Cst. Lovell testified that the radio call gave a description of a male who had been in the Second Cup three times and left needles and blood in the bathroom and who had last been seen heading north through the parking lot on foot. It took Cst. Lovell about one to one and a half minutes to drive across Hurontario Street and into the large parking lot.
[9] Cst. Lovell located the accused reclined, leaning on a backpack. He was on a grassy boulevard located between the sidewalk on the west side of Hurontario Street and the parking lot. He was near a large buffet style restaurant called “Wok of Fame”. It was lunch time and the parking lot was busy. There was a row of parked cars between the laneway of the parking lot where the officer stopped her car and the location of the accused. It was a nice July day.
[10] Cst. Lovell said it took her about 20 steps to reach the accused’s location. She stood about 12 feet away from him. The accused was not prone, but he was well reclined. I would point out that this is not a park but a grassy area beside a busy six lane thoroughfare.
[11] Cst. Lovell testified that based on all the circumstances she was concerned about the accused’s health and the possibility of an overdose. She understood from the radio call that he had been in the washroom three times that day. She said she thought drugs were involved but said that in her experience in such situations individuals using drugs would usually have used everything they had. She did not consider herself to be involved in a drug investigation per se.
[12] Cst. Lovell testified that she stayed 12 feet away for safety reasons. She then asked Mr. Gill if he had any needles and told him that the Second Cup had called because they were concerned about him. She said she asked about needles for officer safety reasons. She said that Mr. Gill looked very “out of it”. Mr. Gill muttered and she could not understand him. She asked him the same question again.
[13] Mr. Gill responded, “Not on me, but I have some weed”. At that point he held out a small plastic bag that he had taken from his pocket. The officer walked over and took it and briefly looked at it. She believed it contained marijuana. She then asked the accused to stand up and arrested him for possession of marijuana.
[14] Cst. Lovell testified that if the accused had not responded to her inquiries she would have called an ambulance. If he had gotten up and walked away she would have let him go on his way. She did not expect to be given drugs but once she was she felt she had to arrest him. She described the accused from that point on as cooperative but very slow to respond. She took him by the arm and walked him to her police car.
[15] Cst. Lovell placed the accused’s backpack on the trunk of her car, did a pat down search for weapons, handcuffed the accused to the rear and placed him in her car. She then quickly searched the backpack incident to arrest to look for weapons and evidence. She said she was alone and she could not place the backpack in her car until she checked it. She did not feel she should leave it unsecured outside her car. She said that while the accused first said he had no needles he changed that and said he did have needles in his backpack. This was when she asked him again whether he had needles or anything that could poke her. She posed that question when she asked him to stand. Consequently, before she took him to her car she had reason to think that the backpack contained needles.
[16] Cst. Lovell testified that when she searched the backpack very quickly she saw that it contained numerous other small packages which appeared to contain drugs. She also found five empty syringes in the backpack.
[17] At that point Cst. Lovell placed the backpack in her car, told Mr. Gill he was also in custody for possession for the purpose of trafficking and read him his rights to counsel and a caution from her duty book. Mr. Gill told her he did not wish to speak to a lawyer.
[18] Cst. Lovell testified that Mr. Gill handed her the marijuana at 12:55 p.m. She read him his rights to counsel and a caution “within two minutes” of that time. She was cross-examined about whether she could have arrested the accused, handcuffed him, done a pat down search and a search of the bag all within that brief time. She said she did all of these things very quickly. I accept Cst. Lovell’s evidence on this point. Consequently, I conclude just under two minutes elapsed from arrest to rights to counsel.
[19] Cst. Lovell located the accused’s driver’s licence during her search. She ran the accused’s information on the computer terminal in her car after he was secured in her car. She learned that the accused was on release on a recognizance with a condition that he not possess non-medicinal drugs. She advised him that he was also under arrest for breach. I note that even if Cst. Lovell had chosen not to arrest the accused at the outset she would have run his name and finding that he was also in breach of his bail would almost certainly have arrested him at that point.
[20] Assisting officers did not arrive on the scene until after Cst. Lovell had searched the backpack. Mr. Gill was then taken to 22 Division. Later on at 22 Division Cst. Lovell realized that some of the packages of drugs appeared to contain heroin. She attended at the cells and advised him of the more serious charges and again gave him his rights. For the third time Mr. Gill said he did not wish to speak to a lawyer. He had said that for the second time when he was initially lodged in the cell block at 22 Division.
Analysis Regarding the Alleged Charter Violations
[21] Counsel for Mr. Gill submits that when the officer first approached Mr. Gill and asked him if he had any needles she was engaged in an investigation. Counsel further submits that the nature of that question and the surrounding circumstances were such that the accused was detained from the very outset because he was subject to a significant psychological restraint. Counsel relies on the principles governing the determination of detention as set out in R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32, in particular at paras. 43 and 44. She then submits that because Mr. Gill was not given his s. 10(b) rights at the very outset I should exclude the evidence of Mr. Gill volunteering the marijuana to the officer. Counsel submits that if Mr. Gill had been given his rights to counsel he may not have produced the marijuana and there would have been no basis for a search incident to arrest.
[22] I am unable to accept this submission. I start by noting that in R. v. Suberu, [2009] 2 S.C.R. 460, 2009 SCC 33, at para. 3, the court stated that “not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter”. The court went on to indicate that s. 9 of the Charter does not require the police to refrain from speaking to people until they have grounds to connect them to a crime and that not every encounter with a suspect will trigger s. 10(b). Sections 9 and 10 will not be engaged unless the authorities submit the accused to “significant physical or psychological restraint”.
[23] In this case I conclude that Cst. Lovell was investigating. However, I accept her evidence that the focus of her initial inquiry was the safety and well-being of the accused. The information in the radio call definitely suggested the possibility of overdose. Mr. Gill was not reclining in a park, but on a grassy area beside a busy major thoroughfare. Cst. Lovell formed the impression he was “out of it”. According to her uncontradicted evidence she told the accused, at the same time she asked about needles, that Second Cup had called because they were concerned about him. She initially stood away from him while she asked her first question about needles. This is consistent with safety concerns on her part. When the accused said he had no needles she approached him as he held out the bag of marijuana.
[24] There was nothing in anything that the officer said or did up to the time she had grounds to arrest that can be construed objectively as a command or direction. I conclude there is no basis upon which a reasonable person in the accused’s position could think that they were being subjected to significant physical or psychological restraint as a result of what Cst. Lovell said. I find that there was no detention until the point of the arrest. Consequently, Cst. Lovell had no obligation to comply with s. 10(b) of the Charter prior to the arrest.
[25] Counsel for the accused also submits that the arrest was unlawful and that the accused was arbitrarily detained. This argument is based on s. 495(2) of the Criminal Code.
[26] Section 495(1) sets out the circumstances in which the police may arrest someone without a warrant. Here the accused was initially arrested for possession of a small amount of marijuana under 30 grams. Cst. Lovell was aware that that offence is a pure summary conviction offence. She said that she had been involved in about 20 marijuana arrests. She agreed that the usual procedure was to provide the accused person with an appearance notice. However, she said that the procedure in all cases she was aware of was to first arrest the accused and then, if appropriate, issue an appearance notice. While this is an available procedure, an accused can also be issued an appearance notice without being arrested. It is unclear from the evidence whether Cst. Lovell understood that such was a possibility. She said she was aware that there were constraints on arresting someone for a summary conviction offence but said she would have to look them up.
[27] Under s. 495(1)(b) Cst. Lovell had the power to arrest Mr. Gill for a summary conviction offence because she had found him actually committing that criminal offence.
[28] However, under s. 495(2) a police officer is not to arrest a person for a summary conviction offence without a warrant in any case where the officer believes on reasonable grounds that the public interest may be satisfied without arresting the person and where the officer has no reasonable grounds to believe that the person will fail to appear in court if they are not arrested. Importantly, the subsection provides that in reaching a determination about such reasonable grounds the officer is to consider all the circumstances including the need to identify the person, the need to secure evidence and the need to prevent the repetition of the offence or the commission of another offence.
[29] Cst. Lovell was asked some questions in cross-examination about the need to identify the accused. She agreed that she had either located or been given Mr. Gill’s driver’s licence during her search. She said that she still wanted to run the driver’s licence to verify his identity. She agreed the identification was likely good but referred to a past situation in which she arrested someone who was a twin using their sibling’s identity. She readily agreed that was a very unusual situation.
[30] Counsel for the accused submits that having regard to s. 495(2) there was an obligation on Cst. Lovell to determine that she could not verify the accused’s identity before she was entitled to arrest him on the basis that she found him committing this summary conviction offence. Consequently, counsel submits that the initial arrest was unlawful, therefore arbitrary, and that everything that flowed from it should be excluded. The submission is that Cst. Lovell ignored the provisions of s. 495(2) of the Criminal Code and that the arrest was therefore unlawful and arbitrary in contravention of s. 9 of the Charter.
[31] I would add that initially neither counsel referred to s. 495(3) of the Criminal Code. That subsection provides that a peace officer acting under s. 495(1) is deemed to be acting lawfully for the purpose of any proceeding under the Criminal Code or any other Act of Parliament. This issue was addressed during further submissions after I asked counsel to review R. v. Cayer, 1988 9879 (ON CA), [1988] O.J. No. 1120 (C.A.).
[32] In Cayer the Ontario Court of Appeal dealt with four separate appeals in drinking and driving cases. In each appeal the question was whether the person charged had been lawfully arrested and whether they had been arbitrarily detained. The issues raised in the appeals required a consideration of the inter-relationship between the three subsections of s. 495. In particular, the court had to consider whether s. 495(3) rendered an arrest which fell within the bounds of s. 495(1) lawful in circumstances where the arresting officer had failed to comply with the requirements of s. 495(2) of the Criminal Code.
[33] In Cayer, at para. 33, the Ontario Court of Appeal referred with approval to R. v. Adams (1973), 1972 867 (SK CA), 21 C.R.N.S. 257 (Sask. C.A.) and R. v. McKibbon (1973), 1973 1395 (BC CA), 12 C.C.C. (2d) 66 (B.C.C.A.) and held: “[A] peace officer exercising his power of arrest without warrant under s. 495(1) is deemed by s. 495(3) to be acting lawfully for the purpose of any proceedings under the Code or any other Act of Parliament, even though in arresting a person without warrant, he has breached the duty imposed on him by s. 495(2) not to arrest the accused in the circumstances specified.” At para. 34 the court went on to quote with approval a passage from McKibbon in which the British Columbia Court of Appeal stated that in such circumstances an arrest is lawful.
[34] Counsel for Mr. Gill has referred me to a number of lower court decisions in other provinces that indicate that s. 495(3) does not apply to Charter applications and has the limited effect of eliminating defences based on a submission that a police officer was not acting in the execution of his or her duty, or of assisting in resolving similar arguments. See, for example, R. v. P.E. (1998), 160 Nfld & P.E.I.R. 138 (Prov. Ct.), at para. 41; R. v. Schwartz, [1998] B.C.J. No. 501 (Prov. Ct.), at para. 36. Counsel urges me to distinguish Cayer on this basis. However, I am simply unable to do so. Cayer was a Charter case and it is binding on me. It clearly holds that s. 495(3) renders an arrest made in compliance with s. 495(1) lawful despite noncompliance with s. 495(2). I am bound to follow Cayer and as a result I find that the arrest in this case was lawful.
[35] As the arrest was lawful it is now clear that it is not arbitrary in the absence of a successful constitutional challenge to the law authorizing the arrest: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 20; Grant, at para. 54. In addition, it follows from the lawfulness of the arrest that Cst. Lovell was entitled to conduct a search incident to that arrest.
[36] Another case that I have considered is Collins v. Brantford Police Services Board, 2001 4190 (ON CA), [2001] O.J. No. 3778 (C.A.). In that case Rosenberg J.A. held, at para. 14, that s. 495(3) of the Criminal Code has the effect of placing the burden of proving that an arrest is unlawful because of noncompliance with s. 495(2) on the party alleging that. I confess that I initially had some difficulty reconciling that statement with the passage from Cayer I have quoted above. Cayer was referred to by Rosenberg J.A. in the course of his reasons.
[37] I believe the answer lies in the fact that Collins v. Brantford was a civil case. Because it was not a proceeding “under the Criminal Code or any other Act of Parliament”, s. 495(3)(a), which was the basis for the decision in Cayer, did not apply. While Rosenberg J.A. referred only to s. 495(3) without specific reference to clause (a) or (b), given that he was dealing with a civil case he must have been referring to s. 495(3)(b). Section 495(3)(b) specifically provides that in proceedings which are not under the Criminal Code or another Act of Parliament the lawfulness of the arrest is presumed “unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).” I conclude there is no discrepancy between the two cases. In a criminal case such as this s. 495(3)(a) applies and Cayer is the governing authority.
[38] In any event, even if I were to apply the approach endorsed by Rosenberg J.A. in Collins v. Brantford, in the circumstances of this case I would reach the same conclusion as I do applying Cayer. In this case counsel for the accused asked a few questions related to the issue of identity that arises under s. 495(2). However, there was no exploration of whether the arrest was justified on the basis of the other considerations referred to in that section. Consequently, it is clear that the accused has not discharged the burden referred to by Rosenberg J.A. The outcome is the same. The arrest is deemed to be lawful and the officer was entitled to search incident to that arrest.
[39] Counsel for the accused also referred me to a passage from R. v. Moore, 1978 160 (SCC), [1979] 1 S.C.R. 195 at p. 203 where Spence J. said that pursuant to s. 495 of the Criminal Code the police officers in that case could only have arrested Moore, for the summary conviction offence there in question, if it was necessary to establish Moore’s identity. Counsel submits that it follows from this that the Supreme Court of Canada has indicated that failure to comply with s. 495(2) of the Criminal Code will render an arrest unlawful.
[40] I do not accept this reasoning. The issue in Moore was whether Mr. Moore could be convicted of obstructing a police officer in the execution of his duty on the basis that he refused to identify himself after being stopped by a police officer for riding his bicycle through a red light. The passage counsel relies upon was written in the course of Spence J. considering whether the officer was in the execution of his duty when he asked Moore to identify himself. Spence J. held that the officer was in the execution of his duty because he was acting in accordance with s. 495(2). The lawfulness of an arrest for non-compliance with s. 495(2) and the effect of s. 495(3) did not come up in that case. I conclude that there is nothing in Moore that is inconsistent with Cayer.
[41] I turn back now to s. 10(b) of the Charter. The accused submits that his s. 10(b) rights were violated because he was not given his s. 10(b) rights immediately upon arrest.
[42] I do not accept this submission. I have found that Mr. Gill was given his rights to counsel and a caution less than two minutes after his arrest. In Suberu, at paras. 41 and 42, the Supreme Court of Canada held that a purposive analysis requires that the words “without delay” in s. 10(b) be interpreted as meaning “immediately”. At para. 42 the court indicated that the immediacy requirement is subject only to concerns for officer or public safety and such limitations as prescribed by law that are justifiable pursuant to s. 1 of the Charter. For the following reason I conclude that here the very brief delay of less than two minutes was justified on the basis of concerns for officer and public safety.
[43] Cst. Lovell was alone. Other officers were not on the scene during the brief period of time in issue. The accused was apparently in a drug addled state. While he was cooperative throughout that is something that can only be said with the benefit of hindsight. Counsel for the accused does not suggest that rights to counsel had to be given before the officer did a pat down search and handcuffed the accused. Counsel’s focus was on why Cst. Lovell did not provide the accused with his rights to counsel after those things occurred but before she searched his backpack.
[44] Cst. Lovell testified that as she was alone she did not want to take her eyes off the accused to read him his rights from her notebook until she had him secured inside her vehicle. Cst. Lovell explained that she also felt that she was responsible for safely securing the backpack. Based on her evidence, she was concerned about leaving the backpack unattended outside her car in a busy location while she read rights to the accused in her car. As she put it, “This is Brampton”. Given that the backpack was found to contain heroin and syringes it turned out that this concern was well placed. Public safety would have been endangered had someone taken the backpack off the trunk of her car.
[45] Cst. Lovell’s concern that she should not place the backpack inside the police car without checking its contents was also reasonable. She needed to know whether the backpack contained a weapon or anything that could endanger her or the accused. She said she did the search very quickly and I accept that evidence. We are likely talking about a delay to search the backpack that would have taken about 30 seconds. In the totality of the circumstances the very brief delay here was reasonable and for officer and public safety. The immediacy requirement was met.
[46] For all of these reasons I find there was no violation of ss. 8, 9 or 10(b) of the Charter. The challenged evidence is admissible.
[47] Based on the stipulation of counsel that my resolution of these applications would resolve all issues I will register findings of guilt against Mr. Gill on all counts in both indictments.
F. Dawson J.
Released: December 11, 2015
COURT FILE NO.: CRIM (F) 770/15 and CRIM (F) 780/15
DATE: 20151211
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JASON GILL
REASONS FOR JUDGMENT
Justice F. Dawson
Released: December 11, 2015