R. v. Field, 2015 ONSC 879
COURT FILE NO.: 11384
DATE: 2015/02/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
Justin Field
Applicant
Gary Fowler, for Her Majesty the Queen
Aaron Prevost, for Justin Field
HEARD: November 27, 2014
bRYANT J.:
REASONS FOR JUDGMENT
[1] The applicant Justin Field was charged with the offence of driving while disqualified contrary to s. 254(4)(a) of the Criminal Code, RSC 1985, c. C-46.
[2] On or about June 10, 2012, four youths escaped from Craigwood Youth Facility. The youths were involved in two police vehicle pursuits and there were a rash of thefts from motor vehicles while these youths were absent without leave. This was an ongoing police investigation. On June 22, 2012, PC McNorgan and DC Gomez of the O.P.P. were assigned to find these youths who had escaped approximately ten days earlier.
[3] The OPP received information that the youths had travelled to Oxford and Lambton Counties and had returned to Middlesex County.
[4] The officers were in plainclothes and were travelling in an unmarked police cruiser. The officers received a file and photograph for each youth. These files were kept with the officers in the police cruiser. The group consisted of three males and one female in their mid-teens, aged between 14 to 17 years old.
[5] On June 22, 2012, the officers commenced their duties at 7:00 a.m. The officers were travelling on Middlesex county roads looking for these youths riding in a truck. The officers were travelling in a northerly direction on Vanneck Road heading toward the Youth Facility to interview their counsellors.
[6] The officers had not stopped any vehicles since commencing their duties earlier that morning at 7:00 a.m. The officers observed a 2004 Ram truck travelling southbound on Vanneck Road just before 12:46 p.m. The officers were looking for any type of behavior that might indicate these may be the youths who were unlawfully at large. The officers estimated that both vehicles were travelling at the 80 km per hour speed limit. PC McNorgan testified that she had a quick glance at the driver and the young girl with pigtails seated in the rear as they passed going in opposite directions.
[7] The officers believed there were a mixture of males and females in the Ram truck. The officers thought the youths may have attempted to visit their friends at Craigwood as it was not far away from where the truck was first spotted.
[8] The driver of the truck appeared to be a young male. The female sitting in the rear seat had short pigtails which the officers associated with a young girl’s hairstyle. The officers were not provided with details of the make or model of the vehicle the youths were travelling in. The officers decided to turn south bound and to stop the truck.
[9] As the truck turned eastbound onto Gainsborough Road, PC McNorgan activated the cruiser’s siren and lights. The truck pulled over onto the soft shoulder of Gainsborough Road and stopped.
[10] PC McNorgan followed the Ram truck and parked the cruiser approximately one to two cruiser lengths behind the truck on the shoulder of Gainsborough Road. The officers could see through the cruiser’s front window and through the back window into the cab of the truck. Thus, the officers had an unobstructed view of the ongoing activities inside the truck from a distance of one to two car lengths.
[11] The officers observed movement inside the cab of the truck. They saw the driver (the Applicant) move from the driver's seat to the middle seat (or the centre console). Next, the girl in pigtails moved from the middle rear seat to the just vacated driver’s seat.
[12] PC McNorgan approached the driver’s door to speak to the young girl in pigtails who was now seated in the driver’s seat. DC Gomez walked to the front passenger’s door.
[13] When DC Gomez reached the front passenger door he was able to see into the truck through the right front passenger’s window. DC Gomez observed the person seated in the right front passenger seat and the driver, who was now seated in the middle front seat (console), and other passengers. D.C. Gomez concluded that the occupants of the truck were older than the youths who had escaped from Craigwood.
[14] The Applicant now seated in the middle front passenger seat (console) and the person seated to his right were asked to get out of the truck and they did so.
[15] DC Gomez asked the Applicant whether he switched seats because his driver’s licence was suspended. The accused responded “no, disqualified.” DC Gomez then asked the Applicant to produce his Ontario Health Card to confirm his identity. Upon the officer confirming the driver’s identity, he then conducted a CPIC search and verified that the Applicant was a disqualified driver. DC Gomez arrested Field.
[16] The officers said that the truck was initially stopped around 12:46 p.m. and the Applicant was arrested at 12:48 p.m. DC Gomez gave Mr. Field his rights to counsel at 1:00 p.m. The Applicant acknowledged being read his rights to counsel and he informed DC Gomez that he did not wish to speak to counsel.
[17] Counsel for the Applicant alleges that Officers Gomez and McNorgan breached the Applicant’s rights, namely s.7, s.8, s.9 and s.10(b) of the Canadian Charter of Rights and Freedoms. Those alleged Charter breaches occurred during a two minute road-side stop of the Ram truck. I will deal with the alleged breaches seriatim.
Issue 1: Section 9 of the Charter: Everyone has the right not to be arbitrarily detained or imprisoned.
- The Position of the Applicant
[18] It is the position of the Applicant that “the officers did not have the requisite reasonable grounds to detain the Applicant.” Counsel further argued that the detention contravened the Applicant’s rights under section 9 of the Charter. It was further submitted that the questioning of the Applicant and the search of his personal information was contrary to his rights under sections 7, 8, and 10(b) of the Charter (paragraphs 6 and 7of the Applicant’s factum). Counsel argues that the police officer did not have reasonable and probable grounds to detain the Applicant, contrary to s. 9 of the Charter.
[19] Counsel for the Applicant submitted that the accused was arbitrarily detained by DC Gomez. The police officers did not have reasonable grounds to detain the Applicant (Applicant’s Factum, para. 6).
[20] The Applicant’s position is wrong. An investigative detention articulate cause threshold has a lower threshold than reasonable and probable grounds (see infra., R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182 (C.A.).
[21] Defence counsel argued that there was nothing to indicate to the officers that the occupants of the Ram truck had committed or were committing a criminal offence. Counsel further argued that the officers stopped the vehicle to ascertain the identity of the persons inside the truck (Applicant’s Factum, para. 26). PC McNorgan was cross-examined at the preliminary hearing and her transcript was filed on the Charter Application. DC Gomez was cross-examined at the hearing of the Application
Q. And do I have it right that that is the sole reason you pulled over the vehicle, because you were a little bit suspicious that there might be the youthful offenders in the vehicle? Is that right?
A. We were checking on any suspicious activity in the area. As I previously mentioned, those youths had gone between Lambton, Oxford and Middlesex. So, if there was any indication whatsoever, that there was a vehicle containing these youths, or anybody that may possibly appear to be similar, then we were going to stop that vehicle. It’s really no different than being thorough and checking to make sure. We would be neglectful if we didn’t stop a vehicle to check the occupants given the situation.
Q. So suspicious activity. So, just the ---you’re not suggesting that the truck that drove by you was displaying any suspicious activity, are you?
A. The truck itself? No.
Q. Right. It was just that you caught a quick glimpse of what you thought were youthful people, so you pulled the vehicle over?
THE COURT: She’s already answered this, in different ways, six, seven times.
Q. So, you would have – you would have you would have pulled over any vehicle that day, that had youthful people in it?
A. I would’ve pulled it over is to determine whether or not those were the youths that we were looking for. That’s part of my job (Preliminary Hearing Transcript, p.15 filed on the Application by Defence Counsel).
[22] Defence Counsel submitted that the reasonableness of the detention must be considered in light of all the circumstances, “most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference in order to meet the second branch of the Waterfield test” R. v. Mann, 2004 SCC 52, at para. 34. Defence counsel did not explain is his factum the second breach of the Waterfield test.
[23] I find that the interference was a brief road side stop which was necessary to determine if the occupants of the Ram truck were or were not the youths who had escaped from the Craigwood facility.
[24] Defence Counsel argued that the police had only observed the Ram truck once that day and the vehicle was not suspicious (Applicant’s Factum, para. 26).
[25] Defence Counsel submitted that “the officers were in search of four youths who had escaped from the Craigwood Facility, that duty did not give the officers the power to conduct a traffic stop of every vehicle that may have contained young people, without the necessary reasonable grounds. “While the police have a common law duty to investigate crime, they are not permitted to take any and all action in the exercise of that duty” (Applicant’s Factum, para. 27).
[26] The uncontested evidence was that the officers stopped one vehicle from the commencement of their duties at 7:00 a.m. and arrested the Applicant at 12:46 p.m. for a specific Criminal Code offence. The officers did not testify that they did stop or would stop every vehicle that contained young persons. They were looking for a group of four youths, consisting of one female and three males, aged between 14 and 17 years old.
- The Respondent’s Position
[27] Crown counsel acknowledges that the Applicant was detained but the vehicle stop was not arbitrary. The officers were trying to find four youths who were unlawfully at large from the Craigwood youth facility and were believed to have returned to Middlesex County. The officers pulled the truck over at Glanworth Road in order to determine if the persons in the truck were the youths who were absent without leave.
[28] The length of the detention at the roadside was approximately two minutes commencing when the truck was pulled over and ended with the Applicant’s arrest.
[29] It is the position of the Respondent that pulling over the Ram truck to determine if the youths in the truck were the persons who had escaped from Craigwood Facility was not an arbitrary stop. The officers had been searching from 7:00 a.m. to approximately 12:46 p.m. before they stopped the Ram truck. The Ram truck was the first vehicle the officers had pulled over during more than five and one-half hours looking to find the youths.
[30] The youths were 14 to 17 years old. The Applicant was 24 years old. The other occupants of the truck were between 25 and 45 years old. When DC Gomez walked to the truck and looked inside the vehicle at the passengers, he eliminated them as the persons who escaped from the youth facility because of their apparent age.
[31] The officers thought the driver and the female in pigtails looked to be within the approximate age range of the youths who had escaped from the Craigwood Youth Facility. The officers believed that the youths had returned to Middlesex County and may have returned to visit their friends at Craigwood. The officers had been advised that the youths had been involved in thefts but more importantly they were involved in two police pursuits. Police pursuits are dangerous not only to the youths but to members of the public driving on municipal roadways.
[32] The licencing offence was a distinct ground for detention. As discussed, while the officers were in the cruiser and/or walking toward the Ram truck, the Applicant and the woman in pigtails switched seats. This is a distinct and an additional ground to detain. This issue was not argued in any depth by defence counsel in his factum and oral arguments.
[33] The following facts are not disputed:
(1) four youths, aged between 14 and 17 years old, had escaped from the Craigwood Youth Facility approximately 10 days earlier;
(2) the four youths were unlawfully at large and had ventured into the abutting counties of Oxford and Lambton and had returned to Middlesex County;
(3) McNorgan and Gomez received information that the youths had been involved in two police chases and had stolen items from cars while they were unlawfully at large;
(4) officers McNorgan and Gomez were assigned to find the youths;
(5) the officers observed four or five persons travelling in a truck – the driver appeared to be a young male and a female sitting in the back seat with her hair in pigtails appeared to be young;
(6) the cruiser followed the truck and activated the siren and lights were activated;
(7) the officers observed the driver move from the front seat to the middle seat and the female in pigtails move to the driver’s seat after the truck was stopped;
(8) DC Gomez looked inside the truck and determined that the occupants were not the youths who had escaped from the Youth Facility;
(9) DC Gomez asked the driver to exit the truck and asked him if he was a suspended driver;
(10) The Applicant responded “No, disqualified.”
(11) DC Gomez requested the Applicant to identify himself with an Ontario Health Card and then conducted a CPIC search and confirmed the Applicant was a disqualified driver;
(12) The Applicant was arrested at 12:48 p.m. and was given his rights to counsel at 1:00 p.m.
[34] The four youths who were unlawfully at large were the sole targets of the officers’ duties. The officers testified that they were driving in Middlesex County searching for these youths from 7:00 a.m. to 12:46 p.m. The officers were not assigned to perform any other policing duties that day.
[35] The police officer’s efforts were focused solely on finding the youths who had escaped from Craigwood. The officers believed the youths had been involved in two police vehicle pursuits and a rash of thefts from cars.
[36] The officers were travelling northbound on Vanneck Road in an unmarked police cruiser. The Ram truck was traveling in the opposite direction on Vanneck Road. PC McNorgan had a glimpse of the male driver and a female, wearing pigtails, as they passed. Officer McNorgan thought the youths were young; the group consisted of a mixed group of males and a female as were the youths the officers were looking for. The officers turned southbound and followed the truck and stopped the vehicle so the officers could determine if the persons in the Ram truck were the youths who had escaped from the Craigwood Facility. The police turned on the lights and siren when the truck turned onto Gainsborough Road. The truck was driven onto the shoulder of the road and stopped.
- Investigative Detention
[37] In R. v. Dedman (1981), 32 OR (2d) 64, the accused was stopped for a random spot check to detect impaired drivers in a R.I.D.E. program. Martin J.A. delivered a unanimous judgment for a five person court in which he discussed police officers common law power supra, at 642, 653:
In carrying out their general duties, the police have limited powers, and they are entitled to interfere with the liberty and property of the citizen only where such interference is authorized by law. It is, of course, a constitutional principle that the citizen has a right not to be subjected to imprisonment, arrest or physical restraint that is not justified by law, and every invasion of the property of the citizen is a trespass unless legally justified.
On the other hand, when a police officer is trying to discover whether, or by whom, an offence has been committed, he is entitled to question any person, whether suspected or not, from whom he thinks useful information may be obtained. Although a police officer is entitled to question any person in order to obtain information with respect to a suspected offence, he has no lawful power to compel the person questioned to answer. Moreover, a police officer has no right to detain a person for questioning or for further investigation. No one is entitled to impose any physical restraint upon the citizen except as authorized by law, and this principle applies as much to police officers as to anyone else.
[38] On appeal, C.J.C. Dickson in his dissenting judgment in Dedman held that Martin J.A. accurately summarized the common law rights of the citizen and the power of the police 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, p. 11.
[39] In R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182 (C.A.), at p. 200, 2002-2003 Doherty J.A. held that whether an investigative detention is justified at common law, one must first decide whether the police officers were acting in the course of their duty when they effected their duty. He further writes:
In my opinion, where an individual is detained by the police in the course of efforts to determine whether that individual is involved in criminal activity being investigated by the police, that detention can only be justified if the detaining officer has some “articulable cause” for the detention.
[40] Articulable cause is a somewhat lower threshold than the reasonable and probable grounds standard for a lawful arrest. The articulable cause requirement is only an initial step in the ultimate determination of "whether the detention was justified in the totality of the circumstances", and was thus a lawful exercise of the officer's common law powers under Waterfield (Simpson, supra, at p. 203).
[41] I find that officers were attempting to find the youths and return them to the Craigwood facility. The officers stopped the Ram truck for the sole purpose of identification. In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19-20, Iacobucci J. stated:
“Detention” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. 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 s. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.
A detention for investigative purposes is, like any other detention, subject to Charter scrutiny. Section 9 of the Charter; for example, provides that everyone has the right “not to be arbitrarily detained”. It is well understood that a lawful detention is not “arbitrary” within the meaning of that provision. Consequently, an investigative detention that is carried out in accordance with the common law power recognized in this case will not infringe the detainee’s rights under s. 9 of the Charter.
[42] Iacobucci J. in Mann, referred to R. v. Simpson, supra, 200 where Doherty J. stated that investigative detentions are only justified at common law “if the detaining officer has some ‘articulable cause for the detention” defined as a “constellation of objectively discernable facts from which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation” Simpson, supra, at 200, 202.
[43] Iacobucci J. concluded police officers may detain an individual for investigative detention if there are reasonable grounds to suspect in all his circumstances that the individual is connected to a particular crime and such a detention is necessary.
[44] The officers had a glimpse of the male driver and the female in the back seat. The officers believed that the driver and the female with pigtails fit the age group of the missing youths. The O.P.P. officers could not establish the identity of the driver and passengers in the Ram truck unless they stopped the truck.
[45] I find that the police officers had reasonable grounds to stop the Ram truck based on information provided to them by other police officers and the officer’s assessment of the information received. The officers had received information that the four youths from the Craigwood Facility were unlawfully at large.
[46] Although this matter was a single purpose stop, it evolved into a dual purpose stop. The Ram truck was pulled over by the officers because the persons in the truck were unlawfully at large. When the officers parked the cruiser behind the truck and walked toward the truck, they observed the driver move from the driver’s seat to the front centre seat and the female in pigtails moved from the back centre seat to the driver’s seat. The seat swap was extremely suspicious in the circumstances. I find the seat swap was a fresh and distinctive ground for detaining the driver of the truck and allowed the officers to make further regulatory inquiries (R. v. Nolet (2010), 2010 SCC 24, 256 C.C.C. (3d) 1 (S.C.C.).
[47] When DC Gomez reached the front door of the truck and looked at the occupants, he concluded that the persons seated in the truck were older than the youths who had escaped from Craigwood. This concluded the investigative detention of the persons in the Ram truck as they were no longer suspects.
[48] The seat swap generated a regulatory detention to determine if the Applicant was a licenced driver. DC Gomez asked the Applicant if he switched seats because his licence was suspended. The Applicant responded: “No, disqualified.” The officer asked the Applicant to provide his OHIP card for identification purposes as he did not have a drivers licence. After verifying the Applicants identity, he made a CPIC inquiry. The officer confirmed that the Applicant was disqualified from driving. DG Gomez arrested the Applicant and gave him his right to counsel and reasons for his arrest.
[49] The police could alternately rely upon their common law power and regulatory authority under ss. 33(1), 33(3), s. 216(1) and 217(2) of the Highway Traffic Act, R.S.O. c. H.8 (“HTA”), for detaining the Applicant.
[50] Mr. Field was driving the truck but he did not have a valid licence. Section 33(1) of the HTA requires every driver in Ontario to carry a licence and shall surrender the licence for reasonable inspection. Section 33(3) provides that every person who is unable to surrender a licence shall give correct identification of himself. Mr. Field provided his Health card.
[51] Section 216(1) provides that a police officer may require the driver of a motor vehicle to stop a motor vehicle when requested by a police officer. Section 217(2) provides a police officer who, on reasonable and probable grounds believes there is a contravention of the above sections, may arrest, without warrant, the person he or she believes committed the contravention.
[52] The crown concedes that the officer breached s. 10(b) of the Charter and the crown undertakes not to rely upon the accused’s admission at trial that he was a disqualified driver.
[53] If I am wrong, I will complete the three-part Grant test.
a. The Seriousness of the Charter-infringing state conduct: the police should have asked the Applicant if he had a licence instead of asking if his licence was suspended. The alleged misconduct is of no importance.
b. The Seriousness of the Impact of the Charter breach on the Charter protected interest of the Applicant? There is no expectation of privacy given the legal responsibility to have a valid driver’s licence while operating a motor vehicle.
c. Whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or its exclusion. I find the admission of the evidence would better serve the truth-seeking function of the court.
[54] I dismiss the Application.
Justice A. W. Bryant
Released: February 6, 2015
CITATION: R. v. Field, 2015 ONSC 879
COURT FILE NO.: 11384
DATE: 2015/02/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
-and-
Justin Field
REASONS FOR JUDGMENT
BRYANT, J.
Released: February 6, 2015