ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Paul Carrington
Applicant / Defendant
Peter Campbell, for the Crown
Monte MacGregor, for the Applicant / Defendant
HEARD: October 20, 2015
SPIES J.
RULING ON DEFENCE APPLICATION TO EXCLUDE EVIDENCE
Overview
1Paul Carrington is charged with having cocaine in his possession for the purpose of trafficking and with possession of codeine (the “drug evidence”), which was found during a search of his vehicle following an alleged Highway Traffic Act (HTA) stop. At the outset of the trial he brought an application to exclude the drug evidence pursuant to s. 24(2) of the Charter. It is his position that Officer Lee did not stop his vehicle because of an alleged HTA violation and that the stop was unlawful and arbitrary based on the fact that he is black; violating his s. 7 and s. 9 Charter rights, that his arrest was unlawful in that Officer Lee did not have reasonable and probable grounds to arrest him; also violating his s. 9 Charter rights, and that as a result the warrantless search of the vehicle was illegal and infringed his s. 8 Charter rights. The drug evidence consists of a quantity of Tylenol 3 pills; which contain codeine, and two baggies of crack cocaine weighing 17 grams in total.
2On October 21, 2015, I granted the application to exclude the drug evidence with reasons to follow.
The Issues
3Counsel agree on the governing law. There is no dispute that Mr. Carrington bears the onus of proving on a balance of probabilities that his initial detention when his vehicle was stopped was unlawful and that the Crown bears the onus of proving on a balance of probabilities that the arrest was lawful. If the arrest of Mr. Carrington was lawful, there is no issue that the search of the vehicle Mr. Carrington was driving was lawful as a search incident to arrest.
4Finally, if I find there was a breach of Mr. Carrington’s Charter rights, I must consider whether or not Mr. Carrington has persuaded me that the drug evidence seized should be excluded pursuant to s. 24(2) of the Charter.
5Officer Lee was the only witness called on the application and he was called by Mr. Campbell. At the time of this arrest Officer Lee had been with the Toronto Police Service for three years and with the Toronto Anti-Violence Intervention Strategy (TAVIS) Unit for a year.
6I decided this application based primarily on an assessment of the credibility and reliability of Officer Lee’s evidence. For the reasons that follow, I reluctantly found that he had not been truthful in certain key areas of his evidence. As a result, I concluded that the only appropriate remedy was to exclude the drug evidence.
The Evidence and Preliminary Findings of Fact
The Stop of Mr. Carrington’s Vehicle
7On Thursday, June 30, 2011, just prior to Mr. Carrington’s arrest at 8:06 p.m., Officer Lee and three other TAVIS officers, all in full uniform, had just finished patrolling for about two hours in the Parkdale area of the City of Toronto. Officer Lee testified that they would frequent 14 Division and in particular the Parkdale area because it is known as a high drug trafficking area with a lot of drug use. He testified that there are a lot of bars in the area as well which are known for fights and problems with intoxicated patrons. According to Officer Lee, it is a high crime area that they would attend this area in order to have a visible presence.
8According to Officer Lee, the purpose of TAVIS is to be visible, engage with the community, build relationships and deal with community concerns. I emphasize “visible” because it is something Officer Lee repeatedly stated and it seemed to me that he was emphasizing this aspect of the TAVIS mandate to avoid the suggestion that on this occasion he and his fellow officers were actually searching for evidence of illegal drug activity from inside the van, as they drove around.
9Notwithstanding the stated objective of being “visible”, Officer Lee and his fellow officers were in an undercover, unmarked GMC full size long van that Officer Lee said looked like a non-descript work truck. Mr. Campbell asked a number of questions of Officer Lee to establish that the van was higher than a regular car. Although equipped with emergency lights in the front windshield of the van, these would not be visible to the public unless activated. I will come back to this.
10At around 8:00 p.m. the officers were departing the Parkdale area. Officer Lee was driving and Officer Marchis was in the front passenger seat of the van. Two other officers were in the rear seat. Officer Lee testified that his investigation of Mr. Carrington started at 8:04 p.m. and that he arrested Mr. Carrington only two minutes later at 8:06 p.m. It was still daylight at this time.
11Officer Lee insisted that his investigation of Mr. Carrington started when he saw a white Chevrolet Cruz, four-door sedan, travelling eastbound in the passing lane on King Street at Atlantic Avenue; at this point King Street is two lanes each way. Officer Lee testified that he was driving directly behind this vehicle. There is no dispute that this was the vehicle Mr. Carrington was driving.
12Officer Lee initially testified that at Atlantic Avenue he saw Mr. Carrington’s vehicle make a lane change to the passing lane without signaling, which caused a vehicle travelling in the passing lane to suddenly brake to avoid a collision. This evidence was confusing given Officer Lee’s earlier evidence that Mr. Carrington’s vehicle had been in the passing lane. I assume this was simply an error since in cross-examination Officer Lee testified that the unsafe lane change was when Mr. Carrington cut off a vehicle in the curb lane. I, therefore, assume that Officer Lee and Mr. Carrington were both driving in the passing lane. In any event, Officer Lee agreed that this other vehicle only had to slow down and did not stop, that there was no screeching of tires, no accident and that Mr. Carrington wasn’t driving quickly.
13Officer Lee testified that at this point he made the decision to do a vehicle stop under the HTA for the offence of change lane not in safety. Before or while he was activating his lights and pulling the vehicle Mr. Carrington was driving over, he did a CPIC check on the licence plate and found that the vehicle was registered to a car rental company. As such he had no information about the driver from the CPIC check. Officer Lee admitted there was no unnecessary movement in Mr. Carrington’s vehicle after he pulled it over.
14Officer Lee denied that he was able to see the driver and that he was looking for an opportunity to stop the vehicle. He admitted, however, that at the time of arrest Mr. Carrington had dreads that were sticking out in different directions from his head. He said he couldn’t say how far they were sticking out but when he used his hands to describe it, as Mr. MacGregor put on the record, his hands were three to four inches out from his head.
15Officer Lee denied that he could see the driver over the headrest of the vehicle as he was driving behind it and he testified that he couldn’t make out the shape of the driver’s head. He also denied that he knew the driver was of a different ethnicity and was not Caucasian. He was firm in his evidence that he first saw Mr. Carrington when he approached the driver’s side of the vehicle. Although Officer Lee was unshaken on this point, given that his only note was that the windows of Mr. Carrington’s vehicle were not tinted and his evidence that he had no independent recollection of what he could or couldn’t see, I do not understand how he could be so certain that he could not see the driver’s head over the headrest. I will come back to this.
16Both Officer Lee and Officer Marchis approached the vehicle even though there was no passenger in the car. Officer Lee approached the driver’s side. The window on the driver’s side was down. Officer Lee testified that he told Mr. Carrington the reason for the stop and he demanded his driver’s licence, ownership, insurance and rental agreement. While Mr. Carrington was retrieving the documentation Officer Lee asked him where he was coming from and according to Officer Lee, Mr. Carrington couldn’t provide an answer to that question which he thought was weird. It is not clear if this meant that Mr. Carrington simply did not answer or if he expressly said that he did not know where he was coming from. Based on the evidence of Officer Lee to questions that I asked, it seems that this is what he inferred. Officer Lee testified that he then asked what Mr. Carrington was doing in the Parkdale area and he said that he dropped off a friend but he couldn’t say where. It is significant that at least by now Officer Lee knew that Mr. Carrington had come from the Parkdale area, given his evidence about drug use in that area. Officer Lee then asked Mr. Carrington what he was doing and Mr. Carrington said he was on his way to pick up his wife.
17As for Mr. Carrington’s demeanour, Officer Lee testified that he was very nervous, was stuttering and took a couple of seconds to think about his answers. Officer Lee testified that he interpreted this as Mr. Carrington being evasive in terms of where he was coming from and going. Officer Lee admitted that he didn’t know if Mr. Carrington simply spoke slowly and was nervous because he had been stopped by police, which he agreed is not an unusual reaction.
18As for why he was asking these questions Officer Lee testified that it was not to investigate Mr. Carrington but was just “general conversation”. He said that when he makes a vehicle stop it is his practice to have a conversation with a member of the community which is not for investigative purposes. He will ask “how’s it going?” and “where are you coming from?” He gave no evidence that he asked how Mr. Carrington was doing and significantly, Officer Lee agreed that he did not ask Mr. Carrington any questions about his driving or the lane change. At this point Officer Lee was asked by Mr. Campbell again about the role of the TAVIS Unit, which was leading given the context in which it was asked, and Officer Lee spoke again about engaging with the community and building relationships.
19When Officer Lee was cross-examined on the suggestion that the questions he asked Mr. Carrington were irrelevant to the lane change, he responded again that he was not intending to investigate Mr. Carrington. He was just having a general conversation such as “how are you doing?”, “how is your weekend going?” However, no questions were directed at how Mr. Carrington was or why he made the lane change that was supposedly the only purpose of the stop. All of Officer Lee’s questions were focused on that fact that Mr. Carrington had come from the Parkdale area.
20Mr. Campbell relied on R. v. Schrenk, 2010 MBCA 38 at para. 41 and R. v. Pearson, 2009 ABQB 382 at paras. 38-42 to support the proposition that officers can have chats with persons stopped for HTA offences. I accept that but in this case I must consider if the nature of the conversation sheds light on whether or not Officer Lee had an ulterior motive for the stop.
21In my view the conversation that Officer Lee had with Mr. Carrington suggests that he was interested in Mr. Carrington because he had been in the Parkdale area given that it is a high crime area for drug activity. I do not believe that the purpose of these questions was to engage with the community and build relationships as Officer Lee testified. Especially in the context of the other evidence, in my view the questions were directed at investigating other possible illegal activity by Mr. Carrington, not the alleged HTA violation.
22In cross-examination Officer Lee initially admitted that when he was considering the factors as to whether or not he had reason to stop Mr. Carrington that the fact that they were in the Parkdale area was a starting factor. He quickly resiled from that, however, and denied that this was a reason for stopping Mr. Carrington. He testified that he would not stop anyone because they were in a certain area. He said that the fact that Mr. Carrington was near the Parkdale area had nothing to do with the stop. He also denied knowing before the stop that Mr. Carrington was coming from Parkdale even though he was going eastbound on King Street out of the Parkdale area. Officer Lee said that there were several side streets that the vehicle could have come from. Although I appreciate that that is true, given where his evidence on this point started I find it hard to believe that he did not think Mr. Carrington was leaving the Parkdale area when he decided to stop him.
The Arrest of Mr. Carrington
23According to Officer Lee, at this point Officer Marchis told him that there was a prescription bottle on the front passenger seat. Officer Marchis gave no further description of the bottle or its contents and Officer Lee admitted that his partner only said it was a prescription bottle and did not say it contained Tylenol 3 pills or codeine. Officer Lee testified he didn’t see the pill bottle until Officer Marchis told him about it. He couldn’t say how or where it was positioned on the seat but he testified that he could see the side of the bottle and that the whole bottle was visible. Again this is hard to believe given his evidence that he could not see how or where the bottle was positioned.
24Officer Lee testified that when he observed the bottle he saw that it was clear orange, that the label was ripped off and that it was full of Tylenol 3 pills. Some of these pills were entered into evidence. They are white round pills with the letters TEC 3 engraved into one side. Officer Lee testified that he didn’t know anyone who re-used pill bottles and that in his experience there was no reason for anyone to rip the label off such a bottle. The only people he knew that would do so were people who were not supposed to have the pills and were trying to hide where they got them from or if they were stolen, from who they stole them. He testified that he was involved in maybe two cases where controlled substances were found inside pill bottles where the label had been ripped off and he had received some training from other officers about this.
25Officer Lee testified that from a distance of three to four feet he could see the letters on the pills were “TEC” and the number 3 below the TEC, which he knew as Tylenol 3’s, which were also known to him as codeine. He admitted that he did not make any reference to TEC or number 3 in his police notes although he did note that the bottle contained white pills that “appears to be codeine”. When pressed, Officer Lee maintained that the fact that the pills had TEC 3 on them was clearly visible to him. He denied they could have been B12 vitamins.
26Officer Lee testified that between 2008 and 2011 he had been involved in 50 street level drug investigations. He had also received training from other experienced officers as to what to look for and knew all the prescribed drugs that are prohibited by the Controlled Drugs and Substances Act (CDSA). When asked about codeine, Officer Lee said that he knew it as Tylenol 3 and that it contains codeine. When asked if he knew what it looked like on the street he testified that he had seen friends and other people that he knew use Tylenol 3’s for medical purposes, he had seen it as part of drug investigations as a police officer and he had seen it in a pamphlet handed out at 22 Division. It seems that he never had possession of these pills before this arrest. I accept that Officer Lee knew what Tylenol 3’s looked like and that they contain codeine but, as I will come to, I do not accept his evidence that he was able to clearly see this when he saw the pill bottle.
27When asked what he thought he could do at this point, Officer Lee testified that putting all the factors together, including the fact that Mr. Carrington was coming from the Parkdale area; an area known for drug trafficking and drug use, the fact that he was evasive about where he was coming from and going to, the fact that he was nervous and stuttering, the fact that he had a prescription bottle full of a Schedule I substance; namely Tylenol 3’s which contain codeine, with the label ripped off, he had reasonable grounds to believe that Mr. Carrington was in possession of these pills illegally.
28Officer Lee testified, however, that he did want to find out whether or not the pills were Mr. Carrington’s or not and so he asked him whose pills they were. According to Officer Lee, Mr. Carrington again took one to two seconds before answering and then said that they were his wife’s. Officer Lee did not believe him. When asked why he didn’t believe Mr. Carrington, Officer Lee testified that it was because he was being evasive and the fact that he took a moment to think about his answer before “blurting out” that they were his wife’s. Officer Lee testified that he asked Mr. Carrington “whose is that?” because he knew what the pills were and so he didn’t need to ask what they were. He did not ask Mr. Carrington if his wife had a prescription for the pills.
29At this point when reviewing the factors Officer Lee relied upon in deciding to arrest Mr. Carrington, Mr. Campbell asked a very leading question. He told Officer Lee that in his experience from reading case law that sometimes the fact that a person is driving a rental car factors into the assessment. Mr. Campbell then asked if that was the case here. There was no objection to the question but that, of course, does not change the fact that it was highly suggestive of the answer the Crown was looking for. Not surprisingly, in response to that question, Officer Lee testified that in his experience persons do hide contraband in vehicles that they can distance themselves from including rental vehicles.
30In cross-examination when Officer Lee was again listing off the factors that he relied upon in deciding to arrest Mr. Carrington he included the fact that certain drug traffickers drive in rental vehicles and that that was part of his grounds to believe that Mr. Carrington was in possession of the pills illegally. I do not accept this evidence. It was never mentioned by Officer Lee before the leading question by Mr. Campbell and in my view he mentioned this in cross-examination because of that leading question. Furthermore, Officer Lee admitted that he made no mention of the fact the vehicle was a rental car being a factor in his case notes or in his evidence at the preliminary inquiry.
31Officer Lee admitted that there were no signs that Mr. Carrington had consumed drugs recently. There was no drug paraphernalia in the vehicle, no ashes or powder and no smell of marijuana. Officer Lee did not know Mr. Carrington or anything about him. He had never had any interaction with him before.
32Officer Lee testified that he arrested Mr. Carrington although he did not give evidence about what, if anything, he told Mr. Carrington he was under arrest for. He asked Mr. Carrington to step out of the vehicle and he brought him to the rear of the police van and handcuffed him. There was a pat down search of Mr. Carrington and $1,950 was found in his rear left pocket. There is no charge with respect to that money. There is also no issue that at this point Mr. Carrington was given his s. 10(b) Charter rights.
33Officer Lee then searched the vehicle Mr. Carrington was driving along with Officer Marchis. The pill bottle was found to be full of Tylenol 3 pills. Officer Marchis also located two baggies of crack cocaine with a total weight of 17 grams somewhere in the vehicle.
34Officer Lee admitted that he did not give Mr. Carrington a HTA ticket. He said that the procedure he was used to was that when someone was charged with a criminal offence they were not also issued a ticket and that it was “merged into one case”. He didn’t know what the procedure was in 14 Division however, and so he couldn’t explain why Mr. Carrington wasn’t ticketed. Although, to be fair, Officer Lee was not asked to explain this evidence, it certainly seems odd that if the alleged unsafe lane change was as significant as he suggested and that it was the reason for the stop, that Mr. Carrington was not also given a HTA ticket.
Assessment of the Credibility of Officer Lee
35Mr. Campbell submitted that I should accept the evidence of Officer Lee as it was not contradicted by evidence from Mr. Carrington or any other witness. Although I appreciate that Officer Lee’s evidence was not contradicted by other evidence, I am still required to assess his evidence and decide what of his evidence I do believe so that I can determine whether or not he decided to stop Mr. Carrington’s vehicle because of a HTA violation or for some ulterior purpose. I also must assess whether or not he had reasonable and probable grounds to arrest Mr. Carrington.
36Mr. Campbell argued that if Officer Lee’s ulterior purpose was to look for drugs he would have done so upon stopping Mr. Carrington and yet he did not see the pill bottle until Officer Marchis pointed it out. Officer Lee made the same point himself in evidence on a couple of occasions when he said that if he had been doing a drug investigation he would have looked inside the car and seen the pill bottle right away before it was mentioned by Officer Marchis. This argument has some merit but it does not outweigh the other concerns that I have about the credibility and reliability of Officer Lee’s testimony. Furthermore it makes it clear that Officer Lee was very alive to the issues on the voir dire.
37Not surprisingly Mr. Campbell and Mr. MacGregor took diametrically opposite positions on the issue of Officer Lee’s credibility. Mr. Campbell submitted that the officer was candid in what he could and could not remember, forthright in his answers and not shaken in cross-examination. Mr. MacGregor submitted that the officer was unbelievable when he gave his evidence about the reason for the stop and his ability to see that the pill bottle contained Tylenol 3’s.
38I have already set out some of my concerns about the evidence of Officer Lee. I have reluctantly come to the conclusion that he was not being truthful when he gave his evidence particularly with respect to the reason for the stop and what he saw inside the pill bottle. I not only found the evidence that he gave on those two points to be incredulous, it seemed that Officer Lee appreciated that these were the areas of weakness in his evidence and he went out of his way to change the emphasis of what the role of the TAVIS Unit was and what he and his fellow officers were tasked to do that day. This involved him repeating certain aspects of his evidence to make his point and to his refusal to accept certain obvious points in cross-examination. Officer Lee seemed very defensive and was evasive on occasion. He certainly was well aware of the issue raised by the Charter application as he was giving his evidence and, to some extent, tailored his evidence to respond to those issues.
39As I review the issues I will make further reference to these concerns.
Has Mr. Carrington established on a balance of probabilities that his detention was unlawful and in breach of his s. 9 Charter rights?
40I have already mentioned some of the issues that I have with the evidence of Officer Lee. After considering his evidence and the submissions of counsel I unfortunately came to the conclusion that he did not stop Mr. Carrington because of an unsafe lane change. I will now review my other concerns with the evidence of Officer Lee that led to this conclusion.
41In cross-examination Officer Lee denied the suggestion that they were in the Parkdale area earlier to seek out possible drug activity saying it was not their primary objective. He also denied that the reason they were in the van was to be able to use it for surveillance purposes. He insisted they were there to be “visible” and interact with the community. In fact on several occasions he said this, reaffirming the evidence he had already given that the mandate of the TAVIS Unit was to be visible, engage with the community, build relationships and deal with community concerns.
42Officer Lee’s repeated statements that he and his fellow officers where in Parkdale to be “visible” did not make any sense given that the officers were in a van that would not be identifiable as a police vehicle by most persons on the street. Although he testified that most of what they do as a team is to attend an area and do walk thrus, he did not say that was what they did when they were in Parkdale before the arrest. His evidence was clearly at odds with the fact that he and three other officers were in an unmarked vehicle, at least to the extent that they remained in their vehicle and were driving around on general patrol.
43Similarly I found Officer Lee’s refusal to admit that they were using the van for surveillance purposes to be evasive. Although Officer Lee admitted that the van could be used for surveillance and that Parkdale was known to him to be an area where there was a higher crime rate, he would not agree that meant there was a higher likelihood or better chance to find someone in the area involved in drugs. This was an area where I found him to be evasive. Officer Lee testified that he did not assume everyone in the Parkdale area was into drugs or that everyone in the Parkdale area was involved in crime. I appreciate that but it was only after some effort on Mr. MacGregor’s part that he reluctantly agreed that if he was in Parkdale as opposed to Rosedale there would be a greater likelihood of seeing some crime.
44Officer Lee testified that they were just driving on general patrol looking for what he characterized as bylaw1 offences under the Liquor Licence Act (LLA) and HTA offences and if he added that they were looking for drug activity it was only afterwards. The same thing happened when Officer Lee spoke to the objectives of the TAVIS Unit. He referred to provincial offences under the LLA and HTA and then added CDSA and Criminal Code offences as almost an afterthought. At another point he said that they were to be on “general patrol”, to enforce the HTA, to be visible in the area to prevent crime and assist with radio calls for the area.
45In my view Officer Lee deliberately emphasized the LLA and the HTA to support his evidence that the only reason that he stopped Mr. Carrington was for a HTA offence. I do not believe that four officers in full uniform inside an unmarked van were primarily on the lookout for persons who were impaired or committing minor traffic violations. I accept that had the officers seen a blatant breach of the LLA or HTA that they might be compelled to intervene but I do not believe that they would respond to what on all accounts was at most a very minor unsafe lane change. This was hinted at in parts of the evidence of Officer Lee. He said, for example, that if it was an emergency they would go help out and assist on a radio call.
46Officer Lee was firm that the only reason for the stop was the unlawful lane change. He denied paying any attention to Mr. Carrington’s vehicle in advance. He denied stopping the vehicle because of suspected drug activity. When it was put to him in cross-examination that the decision to stop the vehicle meant he and his fellow officers were foregoing an opportunity to investigate more serious crimes Officer Lee said they were not just there to do drug investigations or robberies or shootings. They were there to be visible and prevent violent crime and assist the Primary Response Unit if they got a call. Officer Lee denied that he investigated Mr. Carrington’s vehicle because he had left the Parkdale area and was black. Officer Lee said that the Parkdale area is a busy multicultural area and that if he was doing what was implied by Mr. MacGregor that he probably had an opportunity to stop someone before Mr. Carrington.
47Officer Lee did not remember where they were going but said it would have been wherever they had been tasked to go. The road boss would give them their boundary. He did not testify that after leaving the Parkdale area that their mandate had changed. Officer Lee testified that they were on general patrol and if they saw something, namely any bylaw breach such as of the HTA or LLA, they would investigate it. He made no reference initially to more serious offences under the CDSA or the Criminal Code. He then went on to say that he was just driving and he saw a vehicle cut off another vehicle. If he saw an offence under the HTA, the LLA, the CDSA or the Criminal Code, he would investigate. Again, he gave priority to the HTA and the LLA in his answer. Officer Lee denied that they were tasked to search for drug activity. This makes absolutely no sense for several reasons. First and foremost Officer Lee said that drug trafficking and drug use were big concerns in this area. Although he also mentioned an issue with alcohol in this area, it was only 8 p.m. and that would seem early for such issues to arise.
48Given my overall concerns about the evidence of Officer Lee, and applying common sense, and his evidence about why the TAVIS Unit frequented the Parkdale area, I found that I could not accept his evidence that he would decide to pull over a vehicle for what could only be characterized as a very minor unsafe lane change. My conclusion in this regard is reinforced by the fact that Officer Lee admitted that before arresting Mr. Carrington, while they were patrolling in the Parkdale area and once they were back on the road from about 11 p.m. until 2 a.m. the next morning, when their shift ended, they did not investigate any other HTA offences or other “bylaw offences.”
49Mr. Campbell argued that I could not take judicial notice that this type of unsafe lane change is not uncommon on Toronto’s busy downtown streets but it seems to me that I must not consider myself that isolated from reality when assessing the officer’s evidence. Quite frankly if that was a legitimate reason in his mind to utilize the resources that he had at hand to pull over a driver for a HTA offence, he and his fellow officers would have been very busy.
50Mr. MacGregor made a compelling argument that Officer Lee decided to stop Mr. Carrington’s vehicle because he saw that he was coming from Parkdale and that he was black. The onus is on Mr. MacGregor to establish this on a balance of probabilities.
51Officer Lee was asked by the Crown what he could see during the lane change given he was seated higher in a van that required a step up to get into it. Officer Lee testified that he did not have an independent recollection of what he observed before the vehicle stop but that in his notes he wrote that the windows of the vehicle Mr. Carrington was driving were not tinted. He did not make any other observations of the vehicle prior to the stop that he noted.
52When it was put to Officer Lee that he could see there was only a driver, he answered that he had no recollection of what he could or couldn’t see. He admitted, however, that there was nothing impeding his view from the back of Mr. Carrington’s vehicle and that he could probably see through the back window of the vehicle given that he was some distance behind, even though he was somewhat higher in the van. I accept this evidence as the further back the van was the less the angle would be to the vehicle. For this reason I do not accept Mr. Campbell’s submission that it would not have been possible for Officer Lee to see through the rear window of the vehicle. Officer Lee testified however, that as far as seeing who was driving or who was in the front seat “that would be hard”.
53Given that Officer Lee could not recall what he could or could not see I would not have expected him to be so firm on the fact that he could not see the driver when he was behind Mr. Carrington’s car. However, I do not know what the headrests in the car were like or if Mr. Carrington is tall enough that his head would have been above the top of the headrest. Officer Lee denied that he would stop Mr. Carrington just because he is black.
54Although I do not accept the reason for the stop that Officer Lee testified to, I am not able to conclude on the evidence that he knew Mr. Carrington was black before the stop. However, I do find that he may have known this and that it was either that or the fact that he saw Mr. Carrington was coming from Parkdale or both that caused him to stop the vehicle. I do not believe the stop had anything to do with the unsafe lane change. If that occurred it was just an excuse to stop the vehicle Mr. Carrington was driving.
55For these reasons I find that Officer Lee did not stop Mr. Carrington because of a legitimate HTA concern and that as such the stop and detention of Mr. Carrington was unlawful.
Has the Crown established on a balance of probabilities that Mr. Carrington’s arrest was lawful and not in breach of his s. 9 Charter rights?
56Officer Lee gave a number of reasons for why he decided to arrest Mr. Carrington and one of those reasons was his evidence that he could clearly see that there were Tylenol 3’s in the pill bottle. I accept his evidence that he knew that Tylenol 3’s contain codeine before he arrested Mr. Carrington. However, I do not accept Officer Lee’s evidence that he could see that the pill bottle contained Tylenol 3’s. I come to this conclusion for a number of reasons. First of all, given my concern about his evidence as to the reason he stopped Mr. Carrington, I obviously have a serious concern about the credibility of Officer Lee. Furthermore, as I will come to, I have a number of other concerns about his credibility. I have also considered his evidence on this issue and the three photographs of the pill bottle that contained the Tylenol 3’s and the Tylenol 3 pills that were introduced into evidence.
57Although I am prepared to accept that Officer Lee’s vision is 20/20, his evidence about being able to see that the pills inside the pill bottle were Tylenol 3’s is simply incredulous. First of all, his escort, Officer Marchis, was the one who spotted the pill bottle and she did not make any comment about the contents even though she was right next to the front passenger seat. Officer Lee could read the letters on the pills when he gave his evidence but that was with the photograph relatively close to his face. I do not believe that he could have made out these letters on these pills when the pill bottle was on the passenger seat and he was standing on the driver’s side of the vehicle. He did not testify that he was leaning in and he admitted he was three to four feet away from the pill bottle when he first saw it.
58Some of the pills from the bottle were marked as an exhibit and I have examined them more closely. The pills are almost one-half inch in diameter but they are completely white and on one side of each pill there are the letters TEC with the number 3 below. The letters and the number are simply engraved into the face of the pill without any colour to emphasize them. I also note that Officer Lee did not refer to the pills as Tylenol 3’s in his notes.
59The closest, best photograph of the pill bottle as seized is Exhibit 1C which is a close up of the pill bottle and it demonstrates that the pill bottle is about two and three-quarter inches high and is nearly full of pills. There is one pill facing the front edge of the bottle standing vertically which is the one Officer Lee testified he could see had the letters/number TEC 3. When shown Exhibit 1C, Officer Lee testified that there was one pill where the TEC 3 was “clearly” visible. Although I concede that if one looks very closely at Exhibit 1C that you can see the letters/number TEC 3 on one pill on the side of the bottle, Officer Lee was only able to see this by looking at the photograph very closely.
60I do not accept Officer Lee’s evidence that the photographs are blurry which he gave to explain the difficulty he had in immediately being able to see the letters/number TEC 3. The numbers on the ruler placed right next to the pill bottle are clear. It is the actual pill bottle that is not clear because like a typical prescription pill bottle it is not totally transparent and has a bit of a haze or film that affects the ability to see the contents clearly.
61In Exhibit 1A, which is the photograph taken furthest away from the pill bottle, all one can really see is that there are white pills in the bottle and that they are all roughly the same size and shape. This photograph was clearly taken closer than three to four feet from the bottle and so it is in my view a fair representation of what Officer Lee likely could have seen at most. Looking at this photograph in court, Officer Lee insisted that he could see the words TEC and the number 3 on one of the pills but that was with the photograph right up to his face and only after a few seconds had passed while he stared at the photograph.
62I appreciate that the photographs of the pill bottle do not show exactly what Officer Lee was able to observe but having examined those photographs carefully and having looked closely at the Tylenol 3 pills entered into evidence, I find that it would not have been possible for Officer Lee to make the observation that he testified to without having something akin to X-ray vision. Secondly, Tylenol 3 pills are white pills in the size and shape of many pills including vitamins. “Tylenol 3” is engraved into the pill and is not, for example, in colour. It is simply not something that could be seen from three to four feet away, through the driver’s door window and given the pills were inside a pill bottle. In my view Officer Lee did not subjectively believe that he had reasonable and probable grounds to arrest Mr. Carrington.
63The only conclusion that I can come to is that the search of the pill bottle occurred first and then Mr. Carrington was arrested for possession of codeine. That gave Officer Lee and Office Marchis a basis to search the vehicle, leading to the discovery of the cocaine.
64For these reasons I find that Officer Lee has not been truthful about a key factor that he alleges he relied upon in arresting Mr. Carrington. He did not subjectively believe that the pills in the pill bottle were Tylenol 3’s. For this reason I find that he did not have reasonable and probable grounds to arrest Mr. Carrington. As a result, his arrest of Mr. Carrington was not lawful and, as a result, the search of the vehicle was unlawful as was the seizure of the drug evidence.
Has the Crown established that the search of the vehicle Mr. Carrington was driving was lawful and not in breach of his s. 8 Charter rights?
65Given my finding that the arrest of Mr. Carrington was not lawful, there was no lawful basis for a warrantless search of his vehicle as a search incident to arrest.
Given the breach of Mr. Carrington’s s. 8 and s. 9 Charter rights, should the evidence be excluded pursuant to s. 24(2) of the Charter?
66Given the breach of Mr. Carrington's s. 8 and s. 9 Charter rights, a s. 24(2) analysis is necessary. I must now consider whether or not Mr. Carrington has persuaded me to exclude the cocaine and the Tylenol 3 pills from the evidence at trial.
67I am guided by the decision of the Supreme Court of Canada in R. v. Grant, [2009] S.C.C. No. 32, where they instructed judges, when faced with an application for exclusion of evidence under s. 24(2) of the Charter, to assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: 1) the seriousness of the Charter-infringing state conduct, 2) the impact of the breach on the Charter-protected interests of Mr. Carrington; and 3) society’s interest in the adjudication of the case on its merits.
68The first factor requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation for the rule of law: Grant, supra at para. 72. This analysis involves a consideration of whether or not the Charter breach was, on the one hand inadvertent or minor or, on the other hand, showed “willful or reckless disregard for Charter rights”: Grant, supra, at para. 74.
69Given my finding that Mr. Carrington was unlawfully detained and then unlawfully arrested and as a result the search of his person and the vehicle he was driving was unlawful, that is a serious breach of his Charter rights. As Cory J. stated in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241:
Section 450(1) makes it clear that the police were required to have reasonable and probable grounds that the appellant had committed the offence …before they could arrest him. Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence. In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest. (at para. 14)
70The seriousness of the breach weighs towards exclusion of the evidence. Furthermore, given my finding that Officer Lee had an ulterior purpose in stopping Mr. Carrington and that he has not been truthful with this Court as to what he observed and his reasons for arresting Mr. Carrington, this is a serious and flagrant breach of the Charter which also favours exclusion of the evidence. Officer Lee deliberately acted beyond the scope of his authority and arrested Mr. Carrington so that he could justify a search of the vehicle he was driving. His fabricated evidence about why he stopped the vehicle and what he saw inside the vehicle cannot be justified by inexperience. This is not a case where I can find that the officer subjectively believed that he had reasonable and probable grounds for the arrest and that he was just in error given he was still a junior officer. Had Officer Lee come to court and told the truth, his inexperience would likely have been a relevant consideration. In these circumstances it is not.
71In R. v. Harrison, 2009 SCC 34, the Supreme Court found that where an officer’s in-court testimony is misleading, while not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis. This is so given the need for a court to disassociate itself from such behaviour. The court noted at para. 26, that as Cronk J.A. observed in her dissenting reasons at para. 160 in the Court of Appeal, “the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from a person in authority.”
72In terms of the impact of the breach on Mr. Carrington, the impact of an unlawful arrest is profoundly intrusive, even where, as here, there is no suggestion of any abusive conduct by the police at the time of arrest. Mr. Carrington was arrested, handcuffed to the rear, subjected to a pat down search and taken to the police station. The pat down search did not demean his dignity and I do not know whether he was subject to a Level 3 search at the station or whether he spent any time in custody but without a doubt, as the Supreme Court stated in Harrison at paras. 31-32, in such a situation, Mr. Carrington had a reasonable expectation of being left alone and any unconstitutional detention and search could be considered significant.
73As for the unlawful search, even though the vehicle did not belong to Mr. Carrington, he had a reasonable if modest expectation of privacy. The intrusion would not be egregious but would nonetheless be of moderate significance: see R. v. John, [2012] O.J. No. 3930 (S.C.J.) at para. 24.
74Finally, considering the third Grant factor, this is reliable evidence and the Crown’s case depends upon it. Without this evidence the Crown has no case. This is a strong factor favouring inclusion of the evidence. This, however, has the potential to “cut both ways” in that the reasons for both exclusion and admission of the evidence are heightened when the stakes are high: Grant at para. 84.
75At this stage of the analysis I must weigh the various factors, understanding that there is no overarching rule governing how the balance should be struck: Grant, supra at para. 86. Given the unlawful detention and arrest and unlawful search of Mr. Carrington and the vehicle he was driving and the misconduct I have found with respect to Officer Lee, in balancing all of the factors as required by Grant, I conclude that the admission of the evidence would, viewed in the long term, bring the administration of justice into disrepute by sending a message that individual rights count for little. A reasonable person, informed of the relevant circumstances and familiar with Charter values, would conclude that the admission of the evidence in this case would bring the administration of justice into disrepute as it would effectively condone the behaviour of Officer Lee and the impact of the Charter breaches on Mr. Carrington.
Disposition
76For these reasons, the Defence application for an order excluding the drug evidence found during the search of the vehicle Mr. Carrington was driving was granted.
SPIES J.
Released: December 31, 2015
COURT FILE NO.: CR13900000210000
DATE: 20151231
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Paul Carrington
Applicant / Defendant
RULING ON DEFENCE APPLICATION TO EXCLUDE EVIDENCE
SPIES J.
Released: December 31, 2015