R. v. Walker, 2015 ONSC 892

COURT FILE NO.: 1-630517

DATE: 20150211

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Walker

BEFORE: E.M. Morgan J.

COUNSEL: Jeremy Streeter, for the Crown

Kim Schofield, for the Defendant

HEARD: January 26-28, 2015

REASONS FOR JUDGMENT

[1] This trial, in which the Defendant is charged with possession of cocaine for the purpose of trafficking, commenced with a three-day blended voir dire. The question on the voir dire is whether the police officers that searched the Defendant and found the cocaine were acting within their lawful authority, or whether the Defendant’s rights were breached by that search.

[2] In proceeding in this fashion, I am mindful of the applicable burdens of proof. In R v Boston, 2013 ONCA 498, at paras 23-24, the Court of Appeal observed:

In a Charterapplication, the burden of proof is on the defence to establish a breach on a balance of probabilities. In a criminal trial, the burden of proof is on the Crown to establish the guilt of the accused beyond a reasonable doubt.

In a trial with a blended voir dire, the trial judge is still required to separate the burdens and apply the appropriate onus in disposing of both the Charterapplication and the trial proper.

[3] That said, the issue here is whether the seizure of cocaine on a warrantless search conducted by the police was an unreasonable search and seizure contrary to section 8 of the Canadian Charter of Rights and Freedoms (the “Charter”). In Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145 and R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, the Supreme Court of Canada held that a warrantless search is prima facie unreasonable. The Crown then has the burden of showing that the search was, on the balance of probabilities, reasonable.

[4] The first step in satisfying that burden is to demonstrate that the search in question was authorized by law.

[5] The evidence establishes that the search was conducted at the corner of Bathurst and Queen Streets in Toronto on the evening of May 23, 2012, just after the Defendant was pulled over for a highway traffic infraction. When the officer called dispatch to check the Defendant’s driver’s license and vehicle registration, he discovered an outstanding civil bench warrant in the Defendant’s name which required that the Defendant be taken into custody and brought before a court at the earliest opportunity. Accordingly, when the Defendant was searched it was not pursuant to a search warrant, but rather was incident to his arrest.

[6] Search incident to arrest is a recognized exception to the usual rule regarding legally authorized searches. As Chief Justice Lamer pointed out in R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, at para 13, “it requires neither a warrant nor independent reasonable and probable grounds. Rather, the right to search arises from the fact of the arrest.”

[7] The exception to the requirement of a search warrant, however, is a relatively narrow one. The authority of the police to search a suspect upon arrest is restricted to that which is truly necessary under the circumstances. “The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused”: Cloutier v Langlois, 1990 CanLII 122 (SCC), [1990] 1 SCR 158, at 186.

[8] In Caslake, the Supreme Court summed up the rule at para 16: “[t]his means, simply put, that the search is only justifiable if the purpose of the search is related to the purpose of the arrest.” Or, to put the matter in the negative, as Doherty JA did in R v Belnavis (1996), 1996 CanLII 4007 (ON CA), 107 CCC (3d) 195, at 213 (Ont CA), “[t]he authority to search as an incident of the arrest does not extend to searches undertaken for purposes which have no connection to the reason for the arrest.”

[9] It is important to note that a search incident to arrest is distinct from an inventory search of a person’s possessions at the time of his arrest. As the Supreme Court stated in Caslake, at para 30, “[s]uffice to say that an inventory search per se does not serve a ‘valid objective in pursuit of the ends of criminal justice’ (Cloutier, supra, at p. 186) in the context of an arrest such that it can be justifiably carried out under this warrantless common-law power.” The police may inventory a person’s belongings when he is taken into custody for their own administrative purposes and in order to account for his property. “However, if they wish to tender the fruits of that inventory search into evidence at a criminal trial, the search must be conducted under some lawful authority”: Caslake, at para 30.

[10] Defense counsel concedes that the police had the authority to search the Defendant’s person in order to check for weapons or other items of danger. This would be a legally authorized search incident to the Defendant’s arrest, since the civil warrant required the officers to physically take him into custody. In a parallel concession, counsel for the Crown states that the police did not have the authority to search the Defendant’s vehicle upon his arrest. Any such search of the vehicle would have been for inventory rather than for evidentiary purposes, since it would have been unrelated to the securing of the Defendant in execution of the civil warrant.

[11] In other words, if the cocaine was found in his pocket, it is admissible; if it was found in his car, it is inadmissible. Counsel for the Crown has advised that there will be no submissions on section 24(2) of the Charter. He advises that if the cocaine is found to have been seized from the Defendant’s vehicle rather than from his person, the matter will be at an end.

[12] Three police officers were present at the scene of the Defendant’s arrest and search – P.C. Diogo Nunes, P.C. Danny Mota, and P.C. Usman Haroon – and all three of them testified. They all agree that it was Officer Haroon who found and seized the cocaine. Apparently, neither Officer Nunes nor Officer Mota saw where Officer Haroon found the drugs, although both were within several feet of Officer Haroon at the time. Indeed, Officer Mota, by his own admission, was within inches of where Officer Haroon says he found the drugs, as Officer Mota searched the left side of the Defendant’s body while Officer Haroon searched the right side.

[13] According to Officer Haroon, the cocaine was found in a small, brown change purse in the Defendant’s right front pocket. According to the Defendant, the cocaine was found in a small, brown change purse in the glove compartment of his car. As indicated, neither Officer Nunes nor Officer Mota can say where the drugs were actually located, and there is some discrepancy in Officer Mota’s testimony as to whether they were in a small, brown purse or in any other container or bag at all.

[14] Since the Defendant testified in a voir dire, R v W(D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742 does not, strictly speaking, apply. As already indicated, the Crown has the burden of establishing the lawfulness of the police search on a balance of probabilities, and need not prove its case beyond a reasonable doubt as in the trial itself. Nevertheless, I take it as a given that the guidance provided by W(D) with respect to witness credibility is sound – especially Cory J.’s advice at para. 10 that I “need not firmly believe or disbelieve any witness or set of witnesses.”

[15] The Court of Appeal emphasized this point in R v Bucik, 2011 ONCA 546, at para 33, where it observed that, “the lesson from [W(D)] is that assessments of the credibility or reliability of exculpatory evidence in a criminal case do not raise either/or choices…” That is an apt description of the evidence before me on this voir dire.

[16] I do not know whether to believe Officer Haroon or the Defendant, and cannot say with any certainty whether the drugs were found in the right front pocket of the Defendant’s jeans or in the glove compartment of his car. What I do know, however, is that the combined testimony of Officers Haroon and Mota paints a rather confused picture, even without considering the Defendant’s evidence. There is too much missing from Officer Haroon’s account of the search, and too much doubt cast by Officer Mota’s account of the evidence that he processed, to enable me to come to a factual determination of precisely where the drugs were found.

[17] It was Officer Nunes who initially stopped the Defendant for driving while speaking on a cell phone and for failure to wear a seat belt. It was likewise Officer Nunes that requested the driving documents from the Defendant and who called dispatch to verify his identify. Officer Nunes’ communications with dispatch were recorded and audio tapes of those conversations were played at trial. Although the fact that a civil warrant was outstanding in the Defendant’s name was a somewhat unusual occurrence on a highway traffic stop, there was nothing untoward or otherwise remarkable about Officer Nunes’ interactions with the Defendant. The Defendant himself indicated that Officer Nunes was polite and pleasant to deal with.

[18] Officer Mota, who came to assist Officer Nunes, called the police station on his personal cell phone to verify the validity of the civil warrant. Since he did not use his police-issued radio, those communications were not recorded over the police dispatch system. Once the civil warrant was verified as being current and valid, Officer Nunes explained to the Defendant that he was arresting him pursuant to that warrant, and cautioned him about his right to counsel. Officer Nunes’ involvement appears to have been limited to the time that the Defendant was sitting in the driver’s seat of his car.

[19] At some point, Officer Haroon also came to assist, and Officers Mota and Haroon together removed the Defendant from the driver’s seat of his automobile and escorted him to the curb. Officer Mota handcuffed the Defendant from behind, and, according to the two officers’ testimony, they both patted him down as a search incident to arrest. Officer Mota testified that he worked on the Defendant’s left side while Officer Haroon worked on the right side. As indicated, Officer Haroon testified that he found the drugs in the front pocket of the Defendant’s pants.

[20] In his examination-in-chief, Officer Mota stated that he did not know where Officer Haroon found the drugs, but he testified that he had showed him the drugs “quickly” – i.e. immediately. Officer Mota specifically testified, “I could see a white powdered substance.” On the witness stand it was apparent that Officer Mota did not recognize the small change purse in which Officer Haroon stated the drugs were located. Officer Mota then confirmed all of this in cross-examination:

Q: Where does he find the drugs?

A: You’d have to ask him…

Q: What did it look like when he showed them?

A: Baggies together with white substance.

Q: In a bag? In a grocery bag?

A: Don’t remember.

Q: Fanned out in his palm?

A: Something to that effect

Q: Were they contained in any other bag?

A: No.

[21] Further, during cross-examination when Officer Mota was shown some empty plastic dime bags, he indicated that these too had been seized by Officer Haroon from the Defendant. In fact, he explained that it was at least in part the possession of empty bags that he thought caused the Defendant to be charged with possession for the purpose of trafficking.

[22] For his part, Officer Haroon indicated that he found a number of plastic dime bags containing cocaine in a small, brown change purse, but he made no mention of having seized any empty plastic bags. Officer Haroon also denied having taken the dime bags out of the purse upon finding them there, and indicated that he did not quickly show them to Officer Mota or to anyone else on the spot. Indeed, in his testimony he strenuously denied that he had done so:

Q: On finding the purse do you take the baggies out?

A: No.

Q: Are you sure?

A: I’m sure. I would never have done that… I wouldn’t have taken them out while holding on to Walker.

[23] When specifically asked if he told the other officers about the drugs or showed them the drugs, Officer Haroon replied, “Hard to say.” He went on to explain, “At the time of the search, it could be either/or. I could have held up a coin purse.”

[24] Frankly, it is difficult to know what to make of all of this. Officer Haroon could possibly have found the drugs in the Defendant’s pocket and then showed them off to Officer Mota, as Officer Mota said. That, however, leaves it unexplained why Officer Mota would claim to have seen them in that way when Officer Haroon denied displaying them. Officer Haroon could possibly have found the drugs in the Defendant’s pocket and then showed them to Officer Mota at some later time, as Officer Haroon suggested, although again that leaves it unexplained why Officer Mota would claim to have seen them as soon as they were found by Officer Haroon when Officer Haroon so strenuously denied having showed them to him.

[25] It is equally possible that Officer Haroon could have found the drugs during his subsequent inventory search of the Defendant’s car, and then only afterward showed them to Officer Mota. That would, of course, contradict much of both officers’ testimony. However, it would potentially explain why Officer Mota did not recognize the small change purse in which the drugs were found, since the dime bags could already have been removed from the purse when they were handed over to Officer Mota. It could also explain why Officer Mota was so confused as to whether empty baggies were found along with the cocaine, since he would not have seen any of the seized items at the time that they were actually seized.

[26] Two things are clear: a) the testimony of Officers Mota and Haroon contradict each other in crucial parts; and b) no one can help verify where the drugs were actually found. Officer Mota made this latter point in no uncertain terms during his cross-examination, despite having described himself as being so close to Officer Haroon that he was searching the Defendant’s left pocket while Officer Haroon was searchig his right:

Q: Can you help us now with the location of the drugs?

A: No.

[27] Counsel for the Crown submits that in order to hold that the search was unlawful I would have to find that that these police officers lied about the events of the day from beginning to end. He further argues that in total only 10 grams of cocaine were seized from the Defendant, and that it makes no sense that police officers would concoct an elaborate fabrication over such a small amount of drugs.

[28] With respect, that is not how I see this case. I do not think that the police officers here constructed an elaborate lie. I do think, however, that they made poor notes, had spotty memories, were caught off-guard when a routine driving infraction turned into a drug issue, and were generally confused in their testimony. Officer Nunes seems to have observed nothing, and Officer Mota only really knows what Officer Haroon told him with respect to where the drugs were found.

[29] As for Officer Haroon, he testified that he wrote out his notes after the fact, later that night. He had already done both the pat down of the Defendant’s left side and the inventory search of the Defendant’s car. Although he relied on his notes to testify, he conceded that they are incomplete in a number of respects. For example, when asked if during the incident he had spoken with police dispatch he stated that he had done so, but he had a hard time pinpointing exactly what he said to the dispatch officer and when he said it. When asked whether he was on the phone with dispatch at the time of the Defendant’s actual arrest by Officer Nunes, he answered: “It’s possible that I was, it’s possible that I wasn’t.”

[30] Officers Nunes, Mota, and Haroon were on bicycles performing traffic duty at the time of their encounter with the Defendant. A drug arrest was not what they were expecting that evening, and is evidently not something that they were especially prepared for. Their notes were as incomplete as their memories of the event, and they did not focus on the details in the way that a police drug squad would likely have done. As a result, there is simply too much that is unexplained.

[31] Accordingly, the Crown has not established on the balance of probabilities that the search was incident to the Defendant’s arrest. The warrantless search was prima facie unlawful, and the Crown has not discharged the evidentiary burden that is on it to establish its lawfulness. The search of the Defendant violated his rights under section 8 of the Charter and the drugs seized during the course of that search are not admissible as evidence.

[32] The charge against the Defendant is therefore dismissed.

Morgan J.

Date: February 11, 2015