R. v. Wood, 2015 ONSC 919
COURT FILE NO.: 588/14
DATE: 20150211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JASON WOOD
Applicant
Denys R. Bradley, for Her Majesty the Queen
P. Berk Keaney, for the Applicant
HEARD: February 4, 2015
r. d. gordon, r.s.j.
Overview
[1] Mr. Wood is charged with possession of cocaine for the purposes of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act (the “CDSA”) and failing to comply with the terms of a probation order contrary to section 733.1 of the Criminal Code of Canada.
[2] Mr. Wood says that his rights to be free from unlawful detention and unreasonable search and seizure were violated by the police with the result that certain evidence obtained by the police should be ruled inadmissible at trial.
Background Facts
[3] On September 27, 2012, Constable Heffern of the Greater Sudbury Police Service received information from a confidential informant that Mr. Wood was travelling to Sudbury from Timmins in a silver Honda registered to his father and was in possession of cocaine. Although a specific amount of cocaine was related to the officer, it was not disclosed for fear it might identify the informant. The informant further disclosed that Mr. Wood lived at 73 Rinkside Street in Sudbury and that his parents live at 555 Monique Street in Chelmsford. The informant described Mr. Wood as a white male, 35 years of age, five foot eight inches tall, stocky, with brown hair. The officer was told that Mr. Wood would be arriving in Sudbury at around 9:00 p.m.
[4] This confidential informant had been used by Constable Heffern on several occasions. On four previous occasions the information provided led to the successful execution of search warrants under the CDSA, and on another four occasions had led to successful street arrests on drug related matters. The information provided by the informant had always been determined to be accurate.
[5] After receiving the information, Constable Heffern searched the NICHE system and obtained a photograph of Mr. Wood from 2010. It generally confirmed the description provided by the informant. He also searched the NICHE system to determine who resided at 555 Monique Street and was able to confirm that Robert Wood was noted to be the owner. In addition, he checked the MTO database and was able to confirm that a 2008 Honda Civic was registered to Robert and Suzanne Wood and obtained the licence plate number for that vehicle.
[6] With this information, Constable Heffern determined that he would set up surveillance in the area of Rinkside Street to keep watch for the silver Honda. Joining him were Constables Kates, Rinaldi and Katulka. All were in plain clothes and all were in their own unmarked vehicles.
[7] At about 9:58 p.m. Constable Rinaldi advised that the vehicle was southbound on Long Lake Road. Constable Heffern called dispatch to request the assistance of a uniformed officer and cruiser to effect a traffic stop. When advised that there was no officer available, he determined that he and the other officers present would stop the vehicle by effectively boxing it in when it approached an intersection. They proceeded to do so.
[8] At about 10:00 p.m., as the silver Honda approached an intersection, Constable Heffern pulled in front of the Honda to keep it from moving forward. Constable Rinaldi was behind the Honda. Although I did not hear direct evidence on point, I infer that Constables Kates and Katulka proceeded to block the other routes available to the Honda.
[9] Constable Heffern got out of his vehicle and approached the driver’s side of the Honda. He was wearing a blue jacket with “Police” written on it and was holding his police badge in his hand. He yelled: “Stop – Police”. He identified the driver of the vehicle as Mr. Wood from the photograph he had observed and the description provided to him by the informant. His intention was to arrest Mr. Wood for possession of cocaine and to search the vehicle incident to the arrest. However, before he could do anything more, Mr. Wood accelerated the Honda, swerved around Constable Heffern, went up onto the sidewalk almost hitting a telephone pole, returned to the road, and sped off in an easterly direction. He was followed to 73 Rinkside Street where he pulled into the driveway. Mr. Wood got out of the Honda and was seen by Constable Heffern to be speaking to Constable Kates when he suddenly pushed Constable Kates and fled towards the backyard of the home. Although officers gave chase they were unable to locate him. One of the officers in pursuit located a set of keys and a cell phone that appeared to have been discarded by Mr. Wood. The key fob was tested against the Honda and found to be operational.
[10] The Honda was seized and towed at the instance of Constable Heffern. A search warrant was subsequently obtained authorizing a search of the vehicle. That search turned up another cell phone, two digital scales and just under 28 grams of cocaine.
[11] Mr. Wood argues that he was arbitrarily detained contrary to section 9 of the Canadian Charter of Rights and Freedoms and that the warrantless seizure of the Honda was in contravention of section 8 of the Charter. He asks that the results of the search of the vehicle be ruled inadmissible.
Analysis
[12] In R. v. Therens 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, the Supreme Court of Canada held that a person is detained where he or she submits to or acquiesces in the deprivation of his or her liberty and reasonably believes that the choice to do otherwise does not exist.
[13] In R. v. Grant 2009 SCC 32, [2009] S.C.J. No. 32, the court expanded upon the definition of detention, holding that it refers to a suspension of an individual’s liberty interest by a significant physical or psychological restraint. The Court did not, in Grant, change the requirement that to be detained, an individual must submit to or acquiescence in the deprivation of liberty.
[14] In the case before me, although it may fairly be said that the police tried to detain Mr. Wood, it can hardly be said that he submitted to or acquiesced in the deprivation of his liberty. If he was deprived of his liberty at all it was during that fleeting moment in time between when he was stopped and when he determined he would flee. In my view, that momentary detention was not such as to engage his section 9 rights.
[15] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure.
[16] A preliminary issue raised by the Crown was whether Mr. Wood had established a sufficient privacy interest in the Honda to allow him to raise this Charter issue. In that respect, the Crown pointed out the following: (1) He was not the owner of the car; (2) He led no evidence to establish that he had the car with the permission of the owners; (3) He led no evidence establishing a historical pattern of use of the car; (4) He led no evidence to establish his ability to regulate the use of or access to the car; and (5) He led no evidence to assist in determining whether he had a subjective expectation of privacy.
[17] Whether or not there existed a reasonable expectation of privacy is to be determined on the basis of the totality of circumstances. Although there was little evidence on many of the factors identified for consideration in R. v. Edwards 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, I note that Mr. Wood was in possession of the car immediately before it was seized. I note also that it was owned by members of his family and, absent other evidence, it is fair to infer that he was in possession of it with the consent of the owners. I cannot ignore that he parked the car in the driveway to his home and, at least until they were discarded, he was in possession of the keys and key fob for the car, resulting in his ability to lock it and control access to it. When I consider all of the circumstances, I am content that he had a reasonable expectation of privacy with respect to the Honda.
[18] The seizure of the Honda was made without a warrant. Accordingly, the burden falls to the Crown to establish that the seizure was, on a balance of probabilities, reasonable. A seizure is reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the seizure was carried out is reasonable [see R. v. Collins 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265].
[19] Constable Heffern testified that the seizure of the Honda was made under section 489(2) of the Criminal Code, which allows a police officer who is lawfully in the execution of his duties to, without a warrant, seize anything the officer believes on reasonable grounds has been used in the commission of a criminal offence. Specifically, the officer testified that the manner in which Mr. Wood fled the police while in the Honda constituted dangerous driving and the vehicle was seized accordingly.
[20] On cross-examination, it was established that none of the usual paperwork for property seized in this fashion was completed and that the vehicle was released to its owner the next day after it had been searched pursuant to the subsequently obtained warrant to search. The officer agreed that it is rare for police to seize a vehicle used in the commission of a driving offence.
[21] Although I am satisfied that Constable Heffern seized the vehicle pursuant to the authority of section 489(2) relative to the offence of dangerous driving, the real purpose of the seizure was to preserve the property until a warrant could be obtained to have it searched for drugs. In my view, the distinction is of little consequence. Regardless of the real purpose of the seizure, it was authorized by law, the law itself is reasonable, and the seizure was carried out in a reasonable fashion. That the seizure ultimately served another investigative process is neither here nor there. The police are entitled to use all lawful measures available to them to further their investigations.
[22] Even if I am mistaken and it was necessary that the seizure have been based upon Constable Heffern’s belief, on reasonable grounds, that the vehicle had been used in the commission of the offence of possession for the purpose of trafficking, I am satisfied that such reasonable grounds existed. Although I may agree with counsel for Mr. Wood that the information from the confidential informant alone was not enough to establish reasonable grounds for the officer’s belief, the fact that Mr. Wood fled police when they attempted to stop him is, in the absence of some other reasonable explanation, post offence conduct consistent with his having committed an offence, and therefore corroborative of the information provided by the confidential informant.
[23] As determined by the Supreme Court of Canada in R. v. Clayton 2007 SCC 32, [2007] S.C.J. No. 32, the relevant time for determining whether or not grounds existed is when the actual seizure takes place. When the vehicle was seized the police had information from a credible confidential informant. The information itself was not particularly compelling because it was not sufficiently detailed and did not disclose from where or whom the information was obtained. The police had, however, corroborated some of the disclosed information, and Mr. Wood’s conduct when the police attempted to stop him was consistent with his involvement in some criminal activity. When all of the circumstances are considered together it was both subjectively and objectively reasonable for Constable Heffern to have believed the vehicle had been used by Mr. Wood in committing the offence of possession of cocaine for the purpose of trafficking when the seizure was made.
[24] In my view, there was no breach of Mr. Wood’s section 8 rights. It follows that I need not consider whether the evidence ought to be excluded under section 24(2).
Conclusion
[25] The application to have the evidence found in the motor vehicle excluded is dismissed.
R. D. GORDON, R. S. J.
Released: February 11, 2015
CITATION: R. v. Wood, 2015 ONSC 919
COURT FILE NO.: 588/14
DATE: 20150211
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
JASON WOOD
Applicant
decision on charter application
R. D. GORDON, R.S.J.
Released: February 11, 2015