R. v. Leaf, 2016 ONSC 1974
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHAWN LEAF
Respondent
Ronald Turgeon, counsel for the Crown
Donald W. Johnson, counsel for the Respondent
HEARD: February 26th, 2016 and March 29th, 2016
RULING ON CHARTER APPLICATION
LALIBERTE, J.
INTRODUCTION
1The Applicant, Shawn Leaf, is charged with the following five counts:
Possession of marijuana for the purpose of trafficking contrary to section 5(3)(a) of the Controlled Drugs and Susbstances Act;
Wilfully obstruct Constables Fred Beaudry and Kevin Roy, peace officers, engaged in the execution of their duty, by refusing to comply with their detention demands by physically resisting arrest, contrary to section 129(a) of the Criminal Code;
Unlawfully have in his possession proceeds of property Canadian currency of a value not exceeding $5,000.00, to wit $980.00 Canadian currency, knowing that all or part of the proceeds of property was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to section 354(1)(a) of the Criminal Code thereby committing an offence under section 355(b) of the said Act;
While bound by a probation order, fail without reasonable excuse to comply with such order to wit: keep the peace and be of good behaviour, contrary to section 733.1 of the Criminal Code;
Did being at large on his undertaking given to a peace officer and being bound to comply with a condition of that undertaking directed by the said peace officer fail without excuse to comply with that condition to wit: keep the peace and be of good behaviour, contrary to section 145(5.1) of the Criminal Code.
2The Applicant has brought a pre-trial Charter Application based on sections 1, 7, 8, 9, 10(b), 24(1) and 24(2) of the Charter. He is asking the Court to dismiss the charges, or in the alternative, a stay of proceedings.
3He is also seeking an order excluding the evidence gathered by the authorities. This includes monies found on the Applicant and marijuana found on a boat in a compartment.
4The issues raised in this Application revolve around the events of November 21, 2013, which led to the Applicant’s arrest and the search of a small vessel attached to a dock on the St. Lawrence River in the City of Cornwall.
5The essence of the Applicant’s position is that he was arbitrarily detained, unlawfully arrested, not provided with his rights to counsel and subjected to unreasonable searches and seizures.
6The Respondent opposes the reliefs sought by the Applicant. The Crown argues that there was a legal basis for the detention, the arrest and the searches.
THE EVIDENCE
7The Respondent led the evidence in this Application. Constable Fred Beaudry and Kevin Roy were called as witnesses. The Applicant did not present any evidence.
8The parties agreed that the evidence adduced at the preliminary inquiry held on November 29, 2014 and March 31, 2015 would form part of the evidentiary record for this Charter Application, namely the testimony of Constables Fred Beaudry, Kevin Roy and Corporal Maryse Laurin. The Court was provided with transcripts and exhibits filed by Crown counsel.
Constable Kevin Roy
9Constable Kevin Roy has been a member of the RCMP for seven years. At the time of the alleged offences and up to recently, he was part of the Cornwall Task Force which is understood to be made up of several police agencies. Its mandate includes the preservation of the Canadian and American border integrity by focussing on organized crime, illicit drugs, tobacco contraband, firearms and human smuggling.
10He describes that much of his duties includes patrolling and surveillance on the St. Lawrence River which is known for being used in the pursuance of the above-noted illegal activities.
11He reports having been involved in some 50 to 60 seizures on the said river. He also talks of his involvement in a number of occurrences which occurred within 500 meters of the general area where the events subject to this Application took place.
12He notes that there has been an increase in illegal activities on the St. Lawrence River following the re-location of the port of entry between Canada and the USA.
13Constable Roy testified that he was on duty on November 21, 2013. He was close to the RCMP police station when he received a message from Constable Beaudry at 5:05 p.m. He was told that there was a boat on the water between Pilon Island and the shoreline by the Co-Op Marina. The boat had no light and was close to the shore.
14At 5:13 p.m., he met Constable Beaudry at a commercial establishment known as Marimac. They had a brief discussion. He was given a description of where the boat was seen.
15They left Marimac and walked towards the shore along a tree line to avoid detection. Constable Beaudry pointed out where he had seen the boat.
16He describes that he couldn’t see the river that well because it was dark. It was too dark to see beyond the shore. They were walking down and keeping a look out to see if there was someone. They were watching for people who could be there for a “pick-up”.
17He didn’t see anyone arrive or leave the area.
18They went across County Road 2 towards a bike path which is parallel to the shoreline. They then split up. He went westerly and Constable Beaudry went easterly. He testifies that he could faintly see the river.
19Within 30 to 40 feet, he observed someone on a dock. He walked closer to that location. He describes the individual leaving the dock and walking up stairs towards him on the bike path.
20This individual who was later identified as the Applicant, Shawn Leaf, was wearing dark clothing.
21Constable Roy was also wearing dark clothing. He was wearing a black jacket over his police jacket. There were no police markings on this black jacket.
22This encounter took place at 5:18 p.m.
23Constable Roy provided the following evidence at the preliminary inquiry on November 19, 2014:
“…there’s a small dock that’s located on the west side of the Co-Op Marina, probably I’d say 70, 80 feet approximately, I- I don’t have an exact measurement, and it’s a small dock, a wooden dock I believe that I’m assuming that it’s meant – it’s for a private – it’s for a private – it’s a private dock, and I noticed an individual on the dock on his way up the stairs to get where I was located” (page 13)
“Yes, yes, well I mean I – he asked me for a light and I said, “No, I’m sorry, I don’t have a light, I am a police officer”, and – then I asked him if, you know, what – what are you doing in the area, and he started to walk away from me, and I said, “Sir, you are under detention right now,…”, I said, “…I need to find out exactly what you are doing here.” So at this point he stopped, again I’m just recalling from memory, and he wouldn’t really answer my questions, and then he started to pull away again, or to – to go away again, so at that point Constable Beaudry showed up and the – we had placed him under arrest for obstructing us cause we wanted to investigate what – what he was doing there, he wouldn’t answer any questions.” (page 15)
“Yes, he was – well, just – I don’t have that specifically in your – in my – in my book here, you’re asking me – sorry, let me backtrack here, my mistake. “Do you have a smoke?”, that’s what he asked me, I thought it was for a light, my apologies. I said, “No, I’m a police officer and that you’re under detention for investigational purposes.”, and he just wouldn’t answer any questions at that point and he started to walk away.” (page 15)
“I just said, “I’m a police officer, you’re under detention right now and we want to know was that your boat down there?” I just asked him some very simple questions, “What are you doing here?” And I – I believe from my memory that he said he was just waiting for an individual, but I – I can’t specifically recall and I wanted to ask him more questions and he wanted to just slowly walk away.” (page 15)
“Well, I – I asked him again, I said, “Sir, I need to ask you some questions, and you’re under investigation right now”. And then at that point he still kept on wanting to walk away. Constable Beaudry showed up and we grabbed his arms and we had to wrestle with him at that point because he’s - he was starting to resist. We – Officer Beaudry placed him under arrest and we had to place our – our hands on him to try and stop him.” (page 16)
24In cross-examination, he states the following:
“No, no. I asked the individual, from what I can recall, from my memory or from my notes, that I asked the individual – he asked me if I had – I he had a – I had a smoke or a light, I believe it was a smoke. I said, “No, I’m a police officer.” That’s when I asked him what he was doing down there…” (page 44)
“…and he started to walk away and I asked him, “Sir, you’re under detention, I am investigating something right now and I need to ask you some questions.” (page 45)
“Q. You’ve told him, “I am investigating something right now”, did you tell him what he was under – what you were investigating?
A. He wouldn’t give me the opportunity, sir.” (page 45)
“He didn’t give me the opportunity, sir, he walked away and then that’s at that point Constable Beaudry came and I believe Constable Beaudry had police markings on his jacket and he continued to walk away from Constable Beaudry.” (page 46)
“…obviously, if that’s what you said. I might not have notated it in my – in my – in my notes exactly what I said, but I can remember I asked him, you know, what – what are you doing in this location, why are you on the dock, or just statement like that. I can’t exactly remember the exact thing I said.”
25The officer testified that he is unsure whether he observed the boat described as running during his first encounter with the Applicant and prior to his detention. (pages 14, 20, 43)
26Constable Roy testified at the hearing of this Application on February 26, 2016 and described his encounter with the Applicant in similar terms.
27He described the Applicant approaching him and asking for a cigarette. He responded he didn’t have a cigarette and that he was a police officer. He told him he was under investigative detention and asked him what he was doing there.
28He states that the Applicant wasn’t scared and as being calm. He thought he might have been drinking.
29The Applicant was standing in front of him and wanted to pull away. The officer stated “Sir you are under investigative detention…I have questions” at which point the Applicant tried to move away.
30Constable Roy testifies that Constable Beaudry showed up and that they arrested him. He resisted the arrest. The officer believes Constable Beaudry handcuffed him. He told Constable Beaudry that this guy had to be arrested.
31In cross-examination, he states that there was a scuffle which was followed by an arrest for obstruction. He was walking away from the officers.
32He confirms not having told the Applicant the reason why he was detained. He states “…I didn’t have a chance to tell him why…”.
33He also confirms that he saw no one other than the Applicant on the dock.
34Constable Roy testified that other officers arrived at the scene and dealt with the Applicant.
35He testifies that at 5:25 p.m., he returned to the dock and observed a boat running. It was not tied up other than being tied up to the dock at the front. The back of the boat was swinging.
36There was another boat which was not running. This boat was tied up to the dock. He described it as “cold” and locked to the dock.
37The officer got onto the running boat and looked for a key. He couldn’t find the key so he used the “kill switch” to turn off the motor.
38He proceeded to search the boat as he felt that he had “…enough suspicions…” to proceed under section 99(1)(f) of the Customs Act.
39He located a screwdriver and a beer can close to the steering handle. He noticed that the keyhole had been tampered with.
40He describes the boat as a “dark boat”, “possibly green”, “an 18 foot Jon Boat”, “so it’s used mainly for probably fishing around…” The engine was black.
41He searched the back of the boat and saw a compartment close to the motor. He reached in and observed a black jacket and a dark garbage bag. He located white garbage bags inside the dark bag in which he found marijuana.
42There is no issue in this Application that the substance found by Constable Roy is marijuana. Exhibit “D” to this hearing is a certificate of analysis which confirms the nature of the substance. The evidence also discloses that the substance was weighed at 3,615.2 grams on June 23, 2014.
43Following his finding, Constable Roy testified that he yelled out at Constable Beaudry that he had found marijuana.
44Constable Roy stated that on June 24, 2014, he brought exhibits (Ziploc bags, all the bags containing the marijuana) to the RCMP Forensic Identification Section in Ottawa for fingerprints analysis. Same were provided to Corporal Laurin.
45A review of Constable Roy’s evidence reveals that he operated in his dealing with the Applicant on what he termed as “suspicious grounds”. He identified the following facts in support of his actions:
His prior experience in dealing with illegal activities in this area of the St. Lawrence River;
This occurred in November when there isn’t much boating traffic;
It was dark outside and the boat did not have any light;
Seeing an individual on the dock in dark clothes who approached him; there was no one else in the area.
Constable Fred Beaudry
46Constable Fred Beaudry is also a member of the RCMP assigned to the Regional Task Force. He has been so for the last 9 years.
47He echoes Constable Roy’s view that there has been an increase in smuggling by boat since the re-location of the port of entry between Canada and the USA. He explains that all motor vehicles must now go through the re-located port of entry. The St. Lawrence River is therefore increasingly used by smugglers to avoid detection.
48He testifies having been involved in some 300 seizures and being familiar with the areas commonly used by smugglers. These areas were described through Exhibits A and B filed in this Application. Specifically, Exhibit “B” is a map depicting, in part, the area close to Pilon Island.
49The officer’s evidence is that, to his knowledge, there have been many seizures in this same area.
50He confirms having been on duty on November 21, 2013. He was tasked with patrolling the border in an unmarked police vehicle. He was in plain clothes with a visible green reflective police marking on his jacket.
51At 5:05 p.m., he describes that while travelling in a north-east direction on County Road 2 which is parallel to the St. Lawrence River, he observed a boat travelling on water in the same direction. It was right in the middle of the channel between the shore line and Pilon Island. He was not able to say where the boat originated from.
52He noted that it was getting dark and that the boat had no light.
53The officer provides the following reasons as to why his attention was drawn to this boat:
It was cold;
It was November;
The boat had no light;
It was travelling towards the shore;
It came from the south which is a known area for smuggling;
He is familiar with this type of vessel;
He could tell there was one male on the boat;
It was a “duck hunter” style vessel;
There were no reflectors;
It was an outboard motor.
54He requested assistance from other officers.
55He explains that he drove all the way to Boundary Road and that he could still see the boat which was traveling in the same direction.
56He notes that it was coming to shore.
57After turning around, he attended Marimac and parked his vehicle. He describes having a good visual of the area.
58He states that the circumstances were such that he was expecting an illegal transaction. He provides the following basis for his belief:
He was involved in all types of activities in this area including firearms, people with warrants;
He describes it as a “quick area”;
He has seized contraband tobacco and marijuana in this area;
He refers to the type of boat and its direction of travel.
59While parked at Marimac, he kept an eye on the river and the road wanting to see if someone showed up.
60He couldn’t see the boat nor could he hear the sound of the motor. He couldn’t tell where the boat ended up.
61He didn’t see anyone leave or arrive in the area.
62At 5:16 p.m., Constable Roy met him at Marimac. He had worked with this officer before. They made a plan. They walked along a tree line towards the shoreline.
63They had a good vantage point going down towards the shoreline. They could have seen a boat leave the area. They didn’t see anyone leave or arrive.
64They identified two specific areas where the boat could have landed on shore, namely a “point” or a “dock”.
65They decided to split up. He went towards the “point” while Constable Roy went towards the “dock” which is described as a wooden and poorly maintained dock.
66Constable Beaudry testifies having seen a male on the dock and a boat with the motor still running. He was approximately 100 yards away when he made these observations. He shined his light in the direction of this male person and either yelled out or radioed Constable Roy something to the effect “he’s over there…”.
67The officer then describes running on the bike path. When he got closer, he observed Constable Roy struggling with the individual. He heard Constable Roy telling the male person “I’m a police, get on the ground”.
68He testifies seeing the subject “pulling” and “trying to get away”. Constable Roy is attempting to handcuff him.
69Constable Roy has the right arm and he grabbed the left arm. He tells him to stop resisting and that he is a police officer.
70Ultimately, they were able to control the individual. He was placed on his knees against a guard rail.
71The officer testifies that he arrested the individual for “obstruct” at 5:18 p.m. There was a “pat-down”. An I.D. card was found in his pocket in the name of Shawn Leaf.
72The officer states that the individual threw a phone during the struggle. He doesn’t recall if he picked it up.
73He describes the individual as wearing dark clothing. He opines that he was impaired by liquor. He states that:
He wasn’t coherent;
He was a typical drunk;
His eyes were bloodshot;
He wouldn’t have let him drive;
He knew they were the police.
74He states that the individual was arrested for possession of marijuana at 5:20 p.m.
75There was approximately $1,000.00 in currency found on the individual.
76A marked cruiser arrived at the scene at 5:41 p.m. The male was placed in the cruiser. He was then transported to the police station. They arrived at 5:49 p.m.
77In regards to the Applicant being advised of his rights to counsel, Constable Beaudry states that he verbally told him his rights. Counsel was contacted at 6:10 p.m. Mr. Don Johnson was called. The officer doesn’t’ know when counsel called back.
78Once at the police station, the officer counted the money found on the Applicant. The total was $980.00 (19 X $20.00, 6 X $50.00, 3 X $100).
79In cross-examination, Constable Beaudry states that he knows the person in the boat was a male by reason of the demeanor and stature. He indicates that while not in his notes, he is able to say that the person in the boat is the same individual he saw on the dock.
80He confirms that in his view there was an offence taking place. His intent was to investigate “inbound” or “outbound” smuggling.
81He didn’t see the individual touch the boat. He was standing next to the boat.
82He is not able to say what transpired between Constable Roy and the individual. His first observation was Constable Roy struggling with the male on the bike path. The individual did not come to him.
83Constable Beaudry provided the following evidence at the preliminary inquiry on March 31, 2015:
“Q. Okay, and you heard Officer Roy identify himself as an officer, what did you do?
A. I ran over him – I ran to him uh, uh, because from the start I – I could see there was a struggle with him. Uhm, when he tried to approach the male he – he – he tried to walk away or run away from him, so I – I run to him and we – we kind of met half way as the run – uh, the male run towards me.
I – I called police again and uh, as I tried to ask him a couple of questions he pulled away from me so I had to uh, uh, go hands on so he doesn’t run away from uh, from me.
Well, Kevin was already – already had a struggle with him so we tried to gain control uh, because he was uncooperative with us. She we uh, we placed him under arrest and uh, we have to bring him fairly hard down because he was pulling us and he was pushing us and uh, he was physically uh, bigger than both of us like he’s a – he’s a fit guy and uh, we cuff him.”
84In regards to Charter Rights, following the arrest, he explained:
“Uhm, I went through a Charter of Rights and make sure he understand why he was under arrest for.”
85He describes the following:
“The first time, sorry, initially I uh, while we were struggling I – I indicate to him that I was placing him under arrest for obstruct police, and then once he was under arrest uh, and in cuffs, I explained to him he was also under arrest for possession of uh, marihuana.
Q. Okay, and how did you become aware of any marihuana.
A. Uh, between the time I handcuffed him and uh, Cst Snider arrived on scene and uh, did the quick survey of the area and found some uh, marijuana in the boat.”
86In cross-examination, the officer states the following:
“Q. So, what he did is he asked for a cigarette and what happens?
A. And then uh, Cst. Roy identified himself as a police officer and tried to question him and he tried to flee away from Cst. Roy, in the mid time I closed the gap and he came towards me.
Q. He was never placed under arrest at this point?
A. No, but when he start running we indicate him that we were the police and that he was under arrest.
No, we didn’t actually chase him, we didn’t have a – he pulled away from us.”
Corporal Maryse Laurin
87Corporal Maryse Laurin testified on March 31, 2015 in the context of the preliminary inquiry.
88She has been a member of the RCMP since September 2001. She was assigned to the Forensic Identification Services in 2005.
89Corporal Laurin was called by the Respondent as an expert in the field of fingerprint identification. Her expertise was not opposed by the Applicant for the purpose of the preliminary inquiry. She was accordingly qualified as an expert.
90Her opinion is that a partial fingerprint impression which she found on one of the white bags located by Constable Roy in the rear compartment of the boat searched on November 21, 2013, is an impression of the Applicant’s right middle finger.
91She testified having compared the Applicant’s fingerprints taken by Constable Beaudry following his arrest in November 2013 to the partial fingerprint located on the said white bag.
POSITION OF THE PARTIES
Applicant
92The essence of the Applicant’s position is that the officers did not have sufficient grounds allowing for investigative detention, arrest and search.
93Section 99(1)(f) of the Customs Act requires, at a minimum, evidence of a border crossing. He argues that there was no such evidence in this matter. The officers proceeded on mere assumptions which do not provide a basis for reasonable grounds to suspect.
94The fact that Constable Beaudry could not state where the boat had originated from is significant and supportive of his position.
95Section 99(1)(f) of the Customs Act is not as broad as suggested by the Crown.
96The police cannot rely on mere hunches as they did in this matter.
97It is also submitted that the fact that the Applicant was apprehended and detained on private property is a significant factor. The officers were trespassing.
98Reference is made to some reliability concerns with the officers’ evidence. He notes the fact that the time of arrest for possession of the marijuana (5:20 p.m.) preceded the search of the boat (5:25 p.m.) which led to the discovery of the substance. There is also uncertainty as to whether the search of the boat was done by Constable Roy or Constable Snider who had subsequently attended the scene.
99The Applicant also argues that he was not provided with a reason why he was being detained by the police.
100The point is made that the officers were unable to articulate the exact nature and purpose of their investigation.
101In the end, the officers were left with an individual standing on a dock.
102Therefore, the Court is asked to rule that the Applicant was arbitrarily detained and subject of an unlawful search and seizure.
103He is seeking a dismissal of the charges, a stay of proceedings and/or exclusion of the evidence pursuant to section 24 of the Charter.
Respondent
104Crown counsel’s position in response is that the circumstances were such that the Applicant’s Charter rights were not infringed by the officers.
105His view is that they acted properly under section 99(1)(f) of the Customs Act.
106It is argued that this section allows for questioning of an individual not found in a conveyance but connected to same through proximity. The suggestion is that the legislation would be meaningless if an individual connected to a conveyance could simply leave without responding to questions.
107The Respondent’s position is that the Applicant was not detained since he was being questioned under section 99(1)(f) of the Customs Act.
108The point is made that the measure under this section is one of reasonable possibilities as oppose to reasonable probabilities.
109The argument is that the indicators identified by the officers provided them with the required constellation of facts.
110This constellation of facts includes the area, the proximity to the U.S. border, the fact that it is an area known for smuggling and the officers having been involved in a number of seizures at that location.
111The related experience of both officers is identified as a significant consideration.
112The Respondent rejects the notion that the officers acted on mere assumptions and hunches.
113As to the officer’s failure to advise the Applicant of the reason for detention, it is argued that the Applicant’s attempting to leave made it impossible for the officer to do so.
114In the end, the Respondent’s position is that the Applicant’s claim for Charter relief should be dismissed.
THE LAW
115In deciding this matter, the Court is guided by the following relevant principles:
Charter of Rights and Freedoms
S. 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
S. 8: Everyone has the right to be secure against unreasonable search or seizure.
S. 9: Everyone has the right not to be arbitrarily detained or imprisoned.
S. 10: Everyone has the right on arrest or detention
(a) To be informed promptly of the reasons thereof;
(b) To retain and instruct counsel without delay and be informed of that right.
S. 24(1): Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
S. 24(2): Where, in proceedings under subsection (1) a court concludes that the evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
In a Charter application, the burden of proof is on the defence to establish a breach on a balance of probabilities.
R. v. Collins, [1987] 1 S.C.R. 265 paragraph 21
R. v. Boston [2013 ONCA 498], [2013] O.J. No. 3458 paragraph 23
In cases of warrantless searches, the onus is on the Crown to establish that the search was not unreasonable. This is discussed under the heading Warrantless Search and Seizure.
What remedies are available when an application under s. 24(1) of the Charter succeeds? Section 24(1) again is silent on the question. It merely provides that the Applicant may obtain such remedy as the court considers “appropriate and just in the circumstances”. It is difficult to imagine language which could give the court a wider and less fettered discretion. It is impossible to reduce this wide discretion to some sort of binding formula for general application in all cases, and it is not for appellate courts to pre-empt or cut down this wide discretion. No court may say, for example, that a stay of proceedings will always be appropriate in a given type of case. Although there will be cases where a trial judge may well conclude that a stay would be the appropriate remedy, the circumstances will be infinitely variable from case to case and the remedy will vary with the circumstances.
R. v. Mills, [1986] 1 S.C.R. 863 paragraph 279
A stay of proceedings is a remedy available under section 24(1). However, it is one that ought only be considered in the clearest of cases and where the stay of proceedings is the only appropriate course.
It is the Applicant who seeks the exclusion of evidence under section 24(2) who must ultimately satisfy the court on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute.
R. v. Sandhu [2011 ONCA 124], [2011] O.J. No. 619
The inquiry under section 24(2) as to whether evidence obtained in a manner which violated a Charter right should be excluded is objective. It asks whether the reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. Section 24(2) starts from the proposition that the breach has already damaged the administration of justice and seeks to ensure that evidence obtained through the breach does not do further damage to the repute of the justice system.
R. v. Grant [2009 SCC 32], [2009] S.C.J. No. 32
There are three avenues of inquiry in a section 24(2) analysis, namely:
The seriousness of the Charter-infringed state conduct;
The impact of the breach on the Charter-protected interests of the accused;
Society’s interest in the adjudication of the case on its merits.
- R. v. Grant op. cit.
Investigative Detention
Investigative detention is authorized in cases where there is a constellation of objectively discernable facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.
R. v. Simpson, [1993] O.J. No. 308 paragraph 61
Police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. The investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police.
R. v. Mann [2004 SCC 52], [2004] 3 S.C.R. 59 paragraph 45
As a matter of law, a trial judge must appreciate the significance of police experience and training when evaluating the probative value of evidence. Police officers are trained to detect criminal activity. That is their job. A fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police. Sights, sounds, movement, body language, patterns of behaviour, and the like are part of an officer’s stocks in trade and courts should consider this when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold.
R. v. Wu [2005] O.J. No. 5106
R. v. Whyte [2011 ONCA 24], [2011] O.J. No. 126
A “hunch” based entirely on intuition gained by experience cannot suffice, no matter how accurate that “hunch” might prove to be. Without objective criteria detentions could be based on mere speculation.
R. v. Mann op. cit. paragraph 30
R. v. Simpson op. cit. paragraph 61
Investigative detentions must be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.
R. v. Mann, op. cit. paragraph 34
Section 10(a) of the Charter provides that “everyone has the right on arrest or detention to be informed promptly of the reasons therefor”. At a minimum, individuals who are detained for investigative purposes must therefore be advised, in clear and simple language, of the reasons for the detention.
R. v. Mann, op. cit. paragraph 21
In assessing whether the detainee was properly informed of the reasons for detention, it is the substance of the interaction, not the formal wording used that is important. The relevant question is whether the detainee can reasonably be supposed to have understood the basis for the detention.
R. v. Evans, [1991] 1 S.C.R. 869 paragraph 35
A person is not obliged to submit to a detention and/or an arrest if he or she does not know the reason for it. The right to be promptly advised of the reason for one’s detention embodied in section 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to the detention and/or arrest if one does not know the reasons for it. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by section 10(b) of the Charter. An individual can only exercise his section 10(b) right in a meaningful way if he or she knows the extent of the jeopardy. In interpreting section 10(a) in a purposive manner, regard must be had to the double rationale underlying the right.
R. v. Evans op. cit. paragraph 31
R. v. Nguyen [2008 ONCA 49], [2008] O.J. No. 219 paragraphs 16-21
Arrest Without Warrant
- Section 495(1) Criminal Code provides as follows:
s. 495(1): A peace officer may arrest without warrant
a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence.
An arresting officer must subjectively have reasonable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.
Warrantless Search and Seizure
Where police have conducted a warrantless search, the onus is on the Crown to establish on a balance of probabilities that the search was authorized by law, that the law itself is reasonable, and that the manner in which the search was carried out was reasonable.
R. v. Collins op. cit.
R. v. Nolet [2010 SCC 24], [2010] 1 S.C.R. 851
Although the common law power to search incident to arrest is deeply rooted in our law, it is an extraordinary power in two respects. The power to search incident to arrest not only permits searches without a warrant, but does so in circumstances in which the grounds to obtain a warrant do not exist. The cases teach us that the power to search incident to arrest is a focused power given to the police so that they can pursue their investigations promptly upon making an arrest. The power must be exercised in the pursuit of a valid purpose related to the proper administration of justice. The central guiding principle is that the search must be truly incidental to arrest.
R. v. Fearon [2014 SCC 77], [2014] S.C.J. No. 77 paragraph 16
In order for a search incident to arrest to be lawful:
i) The arrest itself must be lawful;
ii) The search must be an incident of that arrest (safety of the police and the accused, prevent the prisoner’s escape, provide evidence against him or her);
iii) The manner in which it is conducted must be reasonable.
R. v. Caslake op. cit.
R. v. Fearon op. cit.
Whether the search is justified depends on whether the search is truly incidental to the arrest. This means that the police must be attempting to achieve some valid purpose connected to the arrest. That turns on what they were looking for and why. The police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted, and the officer conducting the search must reasonably believe that this purpose may be served by the search.
R. v. Fearon op. Cit. paragraph 21
Section 99(1)(f) Customs Act provides as follows:
s. 99(1) An officer may
(f) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any conveyance or any goods thereon, stop, board and search the conveyance, examine any goods thereon and open or cause to be opened any package or contain thereof and direct that the conveyance be moved to a customs office or other suitable place for any such search, examination or opening.
- This section of the Customs Act was considered by the Supreme Court of Canada in R. v. Jacques, [1996] 3 S.C.R. 312. The following principles have emerged from the majority’s judgment:
i) Police are authorized to stop and search a conveyance once an officer has formed a reasonable suspicion that there is a possibility that the conveyance is being used to smuggle or to attempt to smuggle contrary to the Customs Act or regulations thereunder. Parliament has used language which requires the officer neither to believe on reasonable grounds that there is a possibility of smuggling nor to suspect on reasonable grounds that smuggling is, in fact, taking place. A reasonable suspicion of the possibility of smuggling or even of the possibility of an attempt to do so suffices.
ii) That this threshold is not stringent, and indeed is lower than that prescribed by other statutes authorizing stops or searches in different circumstances, is eminently understandable. Canada shares a long and undefended border with the United States with many points of entry, a significant number of which are or may be unstaffed at any given time. The border facilitates not only legitimate commerce between the nations but also, unfortunately, the smuggling of liquor, narcotics, weapons or other contraband. The state has a pressing interest in protecting its borders.
iii) The standard set by s. 99(1)(f) is not stringent but is not illusory. This section does not authorize an officer to conduct random stops merely because a conveyance is in the vicinity of the border and on no other basis. Nonetheless, being at or in the vicinity of the border is relevant to the application of enforcement measures under the Act.
DISCUSSION
116Properly articulated, the first issue to be decided by the Court is whether the Applicant has shown, on a balance of probabilities, that he was arbitrarily detained by Constable Roy and/or Constable Beaudry.
117Having considered all of the circumstances and the relevant principles, the Court finds that the evidence establishes that the Applicant was arbitrarily detained by the said officers.
118It is to be noted that the Court’s finding on this issue is very fact-specific. It is not to be interpreted as the expression by the Court of an opinion that the indicators relied upon by the officers in support of their intervention coupled with their experience cannot collectively provide the required reasonable grounds to suspect.
119The Court’s decision is not predicated on the absence of grounds justifying police action under section 99(1)(f) of the Customs Act and/or investigative detention. For the purpose of this decision, the Court will assume without deciding that the circumstances noted by the officers provided them with the required reasonable grounds to suspect.
120The essence of the Court’s decision rests in the execution by the officers of these police powers.
121Fundamental to the Court’s reasoning, is the rejection of Crown counsel’s argument that the Applicant was not detained by Constable Roy since the officer was operating under section 99(1)(f) of the Customs Act by questioning him.
122A police officer may approach a person and ask him or her questions. As stated by the Ontario Court of Appeal in R. v. Esposito, [1985] O.J. No. 1002:
“A police officer, when he is endeavouring to discover whether or by whom an offence has been committed, is entitled to question any person, whether suspected or not, from whom he thinks that useful information can be obtained.”
123It is also clear that not every suspect questioned by the police can be said to be detained within the meaning of sections 9 and 10 of the Charter.
R. v. Mann op. cit.;
R. v. Suberu op. cit.;
R. v. Grant op. cit.
124The Court is also mindful that routine questioning at the border does not result in a detention triggering sections 9 and 10 of the Charter.
R. v. Simmons op. cit.;
R. v. Jones op. cit.;
R. v. Sinclair op. cit.
125The Court finds that Constable Roy’s intervention went beyond mere routine questioning. There was significant deprivation of the Applicant’s liberty from the onset of his encounter with Constable Roy. Engrained in this deprivation of liberty were legal consequences for the Applicant. He was deprived of the right to simply walk away. Furthermore, the Court’s finding is that detention was triggered following the Applicant’s request to Constable Roy for a smoke.
126The conclusion that the Applicant was detained is based on the following considerations:
The strong language used by Constable Roy from the onset of the encounter is indicative of an intent to deprive the Applicant’s liberty to “simply walk away”; it would certainly convey such an intent to a reasonable individual; reference is made to the following words used by the said officer after being asked for a smoke by the Applicant:
“Sir, you are under detention right now…”
“I said, “No, I’m a police officer and that you’re under detention for investigational purposes…”
“I just said, I’m a police officer, you’re under detention right now and we want to know was that your boat down there?”
“…you’re under investigation right now…”
“…Sir, you’re under detention, I am investigating something right now…”
The use of significant physical restraint by both officers when the Applicant attempted to walk away; the evidence of both officers include the following:
He was grabbed by the arms by both officers;
The officers wrestled with him; this is described as a “scuffle”;
The Applicant being told by Constable Roy according to Constable Beaudry as he is getting closer “I’m a police, get on the ground”;
Constable Beaudry testifying seeing the Applicant “pulling” and “trying to get away” while Constable Roy is attempting to handcuff him;
They were able to control the Applicant; he was placed on his knees against a guard rail;
The fact that he was arrested for and ultimately charged with having wilfully obstructed both officers who were engaged in the execution of their duty is supportive of the Court’s view that the Applicant was detained; the wording of the count is telling; it provides that the obstruction was:
“…by refusing to comply with their detention demands by physically resisting arrest…”
- Logically, the Applicant could not have been arrested for obstruction of the officers unless there was a basis in law compelling him to remain at the scene as requested by Constable Roy; the fact that Crown counsel is pursuing this charge also falls within the same logic; as stated by the Ontario Court of Appeal in R. v. Esposito op. cit:
“Although a police officer is entitled to question any person in order to obtain information with respect to a suspected offence, he, as a general rule, has no power to compel the person questioned to answer. Moreover, he has no power to detain a person for questioning, and if the person questioned declines to answer, the police officer must allow him to proceed on his way unless he arrests him on reasonable and probable grounds.”
The Court would add that the same power to restrain an individual’s liberty to “walk away” applies in the context of investigative detentions.
- The extent to which the officers testified suspecting that the Applicant was involved in an illegal smuggling activity is supportive of detention; Constable Beaudry testified that the circumstances were such that he was expecting an illegal transaction; as explained by the Ontario Court of Appeal in R. v. Jones op. cit., at paragraph 42:
“…the extent to which the border authorities suspect an individual of having committed a particular offence will impact on whether that individual is or is not detained when subject to routine questioning.”
127As already indicated, the Court has found that the Applicant was detained at the onset of his encounter with Constable Roy. So that, the obligation to inform the Applicant of the reason for detention crystallized at the point of this first encounter.
128Constable Roy testified that the Applicant’s conduct was such that he would not let him explain the reason for his detention.
129The Ontario Court of Appeal’s decision in R. v. Nguyen [2008 ONCA 49], [2008] O.J. NO. 219 provides insight on how an officer can fairly easily fulfill the informational component of an investigative detention.
130In Nguyen, the police executed a search warrant in an unoccupied house and located a sizeable marijuana grow operation in the basement.
131As one of the officers left the house, he noticed a van driven by the accused pull into the driveway. The van stopped briefly and began to leave in reverse. The officer approached the van and stated “Police, stop”. The following conversation ensued:
Officer: Do you live here?
Accused: Umm, yeah yes.
Officer: You live here?
Accused: Umm, yes.
Officer: What’s with all the plants?
Accused: Umm, I don’t know.
Officer: The plants in the basement?
Accused: [Sighs, looks down at his lap, no oral response].
132Following this conversation, the accused was arrested for production and possession of marijuana. At trial the Crown relied, almost exclusively, on the accused’s answers to the officer to connect him to the grow operation. He was convicted of producing marijuana.
133The accused had brought a Charter Application pursuant to sections 10(a), 10(b) and 24(2) of the Charter. The trial judge found that the police had breached the accused’s 10(a) and 10(b) rights but did not exclude the evidence.
134At paragraph 11, the Court of Appeal clearly indicated that “this case involves only the effect of failing to comply with the informational requirement of s. 10(a) of the Charter.
135At paragraph 14, the Court states:
“The Crown has acknowledged that it would have been simple for the arresting officer to provide the Appellant with the information that led to his detention. The officer could easily have said “Police, stop, we’re investigating a marijuana grow op in the house…”
136At paragraph 21:
“Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the information component of s. 10(a) of the Charter is easy to fulfill – as it was in this case – the breach of the obligation to provide that information cannot be considered a trivial matter.”
137A review of Constable Roy’s evidence leads the Court to the conclusion that the circumstances were such that the Applicant could have easily been told that he was detained because they were investigating a smuggling incident.
138The officer’s evidence suggests that he was able to communicate with the Applicant. It also suggests that the Applicant responded to him. There is no basis in the evidence to support Constable Roy’s statement that the Applicant’s conduct was such that he would not let him explain the basis for the detention.
139The officer testified having advised the Applicant of the following:
“I am a police officer”;
“What are you doing in the area”;
“Sir, you are under detention right now”;
“I need to find out exactly what you are doing here”;
“No, I’m a police officer and that you’re under detention for investigational purposes”;
“I’m a police officer, you’re under detention right now and we want to know was that your boat down there”;
“What are you doing here”;
“Sir, I need to ask you some questions, and you’re under investigation right now”;
“No, I’m a police officer…I asked him what he was doing down there…”:
“Sir, you’re under detention. I am investigating something right now and I need to ask you some questions.”
140Constable Roy also indicated that he couldn’t exactly remember the exact thing he said. He explained:
“…I might not have notated it in my – in my – in my notes exactly what I said, but I can remember I asked him, you know, what – what are you doing in this location, why are you on the dock, or just statement like that. I can’t exactly remember the exact thing I said.”
141In the end, the failure to advise the Applicant of the reason for his detention resulted in arbitrary detention. The investigative detention was not carried on in accordance with the common law power recognized by the Supreme Court in R. v. Mann.
142The second concern with the nature of the detention revolves around the Applicant’s arrest for obstructing a peace officer contrary to section 129 of the Criminal Code.
143The Court finds that the Applicant was arbitrarily detained when he was arrested by both officers as noted above. The Court’s conclusion is based on the following considerations:
Not having been told the reason why he was being detained, the Applicant had no obligation to submit to the officers detention demands; an individual who has no legal obligation to submit to such demands, cannot be said to have wilfully obstructed a police officer;
The wilful obstruction must relate to a peace officer acting in the execution of his or her duty; it cannot be said that a police officer is acting in the execution of his or her duty when unlawful demands are directed at an individual;
While the officers may have acted in good faith and subjectively believed that grounds existed to arrest the Applicant without a warrant, such a belief is not justifiable on an objective point of view; an objective and reasonable review of the circumstances leads to the conclusion that since the Applicant had not been informed of the reason for his detention, he did not have to submit to the demands; he could walk away; as such, there were no grounds to arrest under section 129 of the Criminal Code;
While this may have been a poor choice of words by the Constable Roy, his evidence suggests that the arrest for obstruction was based in part on the Applicant’s failure to answer questions; the officer’s evidence is as follows:
“…he wouldn’t really answer my questions, and then he started to pull away again, or to – to go away again, so at that point Constable Beaudry showed up and the – we placed him under arrest for obstructing us cause we wanted to investigate what – what he was doing there, he wouldn’t answer any questions.”
144As stated by the Court in Mann, “…The investigative detention…does not impose an obligation on the detained individual to answer questions posed by the police…”
145Therefore, the Court’s view is that the Applicant’s arrest was unlawful as it was based on an arbitrary detention and demands the Applicant was not legally compelled to comply with.
146This finding impacts on the evidence which flows from this arrest.
147Constable Beaudry testified that he found an I.D. card in the Applicant’s pocket.
148While unable to recall where same was located, he testified having also found $980.00 on the Applicant.
149This warrantless search and seizure was framed as a search incident to arrest. As such, its lawfulness rests in part on the arrest being itself lawful.
150The arrest having been found to be unlawful, the I.D. card and currency stem from an unreasonable search and seizure. Thus, in breach of section 8 of the Charter.
151The same reasoning applies to the taking of the fingerprints by Constable Beaudry pursuant to section 2 of the Identification of Criminals Act which provides that “any person who is in lawful custody charged with….an indictable offence…” may be fingerprinted.
152As already expressed, the Court’s conclusion is that the Applicant was not in lawful custody.
153This analysis is supported by the Supreme Court of Canada’s decision in R. v. Feeney, [1997] S.C.J. no. 49. The Court states the following at paragraph 60:
“In the present case, however, the arrest was unlawful and involved a variety of Charter breaches. Compelling the accused to provide fingerprints in the present context was, in my view, a violation of s. 8 of the Charter, involving as it did a search and seizure related to the appellant’s body, about which, at least in the absence of an lawful arrest, there is clearly a high expectation of privacy. I should add that procedures that are taken incidental to and following an unlawful arrest, which impinge on the reasonable expectation of privacy of the arrestee, will generally constitute a breach of s. 8.”
154The fingerprints taken from the Applicant are therefore found to have been seized in breach of section 8 of the Charter.
155Different considerations apply to the 3,615.2 grams of marijuana found by Constable Roy in a compartment on the boat.
156The search of the boat was not as an incident to the arrest. It was based on section 99(1)(f) of the Customs Act. While there is no need for the Court to decide this issue, it would seem that the indicators identified by the officers coupled with their experience would provide the “reasonable grounds to suspect” required by the said section.
157Furthermore, of significance to the Court in the context of a section 8 search and seizure analysis, is the absence of any claim of a “privacy interest” in relation to this boat by the Applicant. In fact, his suggestion through counsel is that the evidence does not reveal a nexus between him and the boat.
158The suggestion was that the officers were unable to identify him as the person who was seen operating the boat.
159The point was made that while he was standing close to the boat on the dock, he was never seen inside the boat.
160As expressed by the Supreme Court of Canada in R. v. Edwards, [1996] 1 S.C.R. 128, the right to challenge the legality of a search depends upon whether the accused had a reasonable expectation of privacy and if so, whether the search by the police was conducted reasonably.
161The Court explained that a reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.
162The circumstances in this matter do not support such an expectation by the Applicant. Specifically,
He was never seen inside the boat;
His suggestion in this application is that he is unconnected to the boat;
There is no evidence to suggest that he owns this boat;
There is no evidence of an historical use by him of this boat;
He provided no evidence to suggest that he had a subjective expectation of privacy in this boat.
163The end result is that the Applicant has not established a reasonable expectation of privacy in this boat. Therefore, the Court finds that the search and seizure of the boat did not breach section 8 of the Charter.
164The Applicant having established breaches of his rights under sections 8, 9 and 10(a) of the Charter, the final question for the Court is what section 24 remedies, if any, are appropriate in the circumstances.
165Dealing first with the Court’s finding that the Applicant was unlawfully arrested and therefore, the officer was not acting in the execution of his duty.
166The inevitable result of the Court’s conclusion on this point is that the Crown is unable to prove one of the essential elements under section 129 of the Criminal Code.
167While it would be open to the Court to consider a stay of proceedings as a section 24(1) remedy, the Court agrees with Justice Code’s analysis in R. v. Boston [2014 ONSC 4457], [2014] O.J. no. 3594. He states the following at paragraph 6:
“Furthermore, the law is settled that an officer making an unlawful arrest is not engaged “in the execution of his duty” and that the s. 270 offence cannot be made out in these circumstances. The remedy for a s. 270 acquittal at trial, as a result of an unlawful arrest, is a far better remedy than the s. 24(1) Charter relief (a stay of proceedings) that was sought by the defence in this case.”
168As for the I.D. card, the currency and fingerprints, the Court’s view is that the Applicant has shown, on a balance of probabilities, that the admission of this evidence would bring the administration of justice into disrepute.
169The considerations set out by the Supreme Court of Canada in the “three lines of inquiry” analysis, favour exclusion of this evidence. The admission of this evidence would, on balance, negatively impact society’s long-term perspective of the administration of justice.
170In arriving at this conclusion, the Court has balanced the following factors:
i) The seriousness of the Charter-infringed state conduct
The breaches are seen as being at the serious end of the spectrum;
The officers are not found to have acted deliberately and/or in bad faith;
The officer’s actions are seen as having been reckless; they are experienced officers involved in many such interventions; they should have known that the conduct was not Charter-compliant; the significance of the Applicant being told the reason for detention in clear and simple language should have been known;
As shown in R. v. Nguyen, not much is required from an officer to fulfill the informational component of an investigative detention;
Failure to provide the reason for detention is not merely technical in nature; as stated by the Ontario Court of Appeal in R. v. Nguyen, “…the breach of the obligation to provide that information cannot be considered a trivial matter…”
It is recognized as a Charter-protected right under section 10(a) of the Charter;
It is an integral part of the police’s common law power to detain for investigative detention; it triggers an obligation to remain with an officer; its absence allows an individual to walk away;
Preservation of public confidence and ensuring state adherence to the rule of law favours exclusion.
ii) The impact of the breaches on the Applicant’s Charter-protected interests
The breaches are found to have seriously compromised the Applicant’s right to liberty and privacy;
From the perspective of the Applicant, the breaches are seen as serious;
The circumstances were such that he was not legally compelled to answer the officer’s questions; as already noted, Constable Roy’s evidence would suggest that the arrest resulted in part from his refusal to answer questions;
It also resulted from his failure to remain with the officers when he was not legally compelled to do so;
The serious nature of the breaches on the Applicant’s expectation and right to liberty and privacy appears in the events which followed his encounter with the police; the Court notes the following:
His arms were grabbed;
He wrestled with the officers;
He was brought down fairly hard as he was pulling and pushing;
He was handcuffed;
He was placed on his knees against a guard rail;
He was searched;
He was transported to the police station, questioned and compelled to provide fingerprints.
These factors are seen as favouring exclusion of the evidence.
iii) Society’s interest in the adjudication of the case on its merits
The Court is mindful that the reliability of the evidence and its importance to the Crown’s case weigh in favour of its admission;
The Court is also aware that illegal “smuggling” activities and possession of illicit drugs for the purpose of trafficking are serious offences; it is also recognized as a particular concern in this jurisdiction by reason of its geographical location;
The public has a strong interest in seeing a determination of criminal matters on merit; this is especially true when the offence is of a serious nature;
All of these factors are seen by the Court as favouring admission of the evidence;
However, the public has a vital interest in having a justice system which is based on the rule of law and administered in a way which reflects the fundamental values, rights and freedoms set out in our constitution.
CONCLUSION
171Therefore, for the reasons articulated in this ruling and subject to the terms set out therein, the Court grants the Applicant’s Charter application.
Justice Ronald M. Laliberte Jr.
Released: April 7, 2016