R. v. Renaud, 2016 ONSC 4663

CITATION: R. v. Renaud, 2016 ONSC 4663

COURT FILE NO.: CR-14-409

DATE: 2016, August 22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DARREN A. RENAUD

COUNSEL:

Joseph C. Dart, for the CROWN

James Foord, Counsel for the ACCUSED

HEARD: June 22 and 23, 2016

REASONS FOR JUDGMENT

TAUSENDFREUND, J

[1] The accused stands charged on a six count indictment that he:

a) Possessed cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act; and

b) Have in his possession Canadian currency of a value exceeding five thousand dollars, knowing that it was obtained by the commission in Canada of an offence punishable by Indictment, contrary s. 354(1)(a) of the Criminal Code of Canada;

c) Willfully obstruct Constable Hillier by falsely identifying himself to that officer engaged in the execution of his duties contrary to s. 129(a) of the Criminal Code of Canada;

d) Have in his possession certain pieces of identification such as an Ontario driver’s licence, Ontario licence validation tag and a vehicle insurance slip of a value not exceeding five thousand dollars knowing that this property was obtained by the commission in Canada of an offence punishable by Indictment, contrary to s. 354(1)(a) of the Criminal Code of Canada;

e) Without lawful excuse possess an identity document relating to Damian Beckles contrary to s. 56.1(1) of the Criminal Code of Canada;

f) Did while in Canada use a passport knowing that the passport was forged, contrary to s. 57(1)(b)(i) of the Criminal Code of Canada.

[2] The accused brought an application under s. 24(2) of the Charter of Rights and Freedoms (“the Charter”) for an order excluding all evidence obtained following the arrest of the accused. He alleges that the arresting officer contravened the accused’s rights under ss. 8, 9 and 10(b) of the Charter. The matter proceeded before me by way of a trial blended with the Charter application.

FACTS

[3] On April 16, 2014, Constable Hillier of the Ontario Provincial Police proceeded westerly patrolling Highway 401. He came upon a vehicle also proceeding westerly on Highway 401. It was an older Honda vehicle bearing Ontario licence BMXF-435. The vehicle appeared to be in ill repair. His experience told him that vehicles in such ill state of repair may well give rise to legal issues. Accordingly, he ran the plates of that vehicle on his computer system in his cruiser, all while following this vehicle on Highway 401 at a normal rate of speed.

[4] This computer search indicated to the constable that the registered owner of that vehicle was one Damian Beckles, d.o.b. November 1, 1973, and that he was a suspended driver. That information caused the officer to stop the vehicle. The male driver was its only occupant.

[5] Const. Hillier requested and was given a driver’s licence, vehicle permit and insurance information, all in the name of Damian Beckles. The officer returned to his cruiser and submitted that information into his computer which linked him to the Ministry of Transportation (“MTO”) database. At first, the name Damian Beckles appeared on the computer screen with a photo of a male similar in appearance to the driver of the vehicle he had just stopped. However, within seconds his computer screen changed to the likeness of another male person, also similar, if not identical in appearance, but under the name of this accused, Darren Renaud d.o.b. January 21, 1975. That person also was shown to be a suspended driver but on an earlier occasion than the Damian Beckles suspension.

[6] The officer then requested further identification from the driver, who produced a President’s Choice debit card and a President’s Choice Mastercard, both in the name of Damian Beckles.

[7] The officer returned to his cruiser based computer and tried on several repeated occasions to access the name “Damian Beckles”. Each time the same incident repeated itself with the image of the driver under the name of Damian Beckles appearing on the officer’s computer screen only to be replaced within seconds by the likeness of a similar looking male under the name of the accused, both with different dates of birth and different addresses. These two photos were so similar to each other that it appeared to Const. Hillier that they might be one and the same person. He also noted certain similar idiosyncrasies in the signatures of Damian Beckles and Darren Renaud. These appeared to be the same, despite the fact that the officer was faced with signatures of two different names.

[8] This type of incident on his computer had never happened to the officer before, although he had five years experience of patrolling Highway 401. The officer attempted to receive clarification from his communications centre on this computer issue confronting him. He did not receive any helpful assistance.

[9] Faced with two similar photos which could be of the same person, the handwriting similarities and both names being noted as suspended drivers with the Beckles suspension being the later of the two, Const. Hillier came to the belief that the driver was a person with two identities. He arrested him as this accused for obstructing a police officer. That occurred about 41 minutes after he had first stopped the vehicle.

[10] As part of the arrest and during a “pat-down”, Const. Hillier located a business card holder inside the jacket pocket of the driver. That card holder contained a Canadian Government – issued permanent residency card, an Ontario Government issued photo identification card and a Capital One Mastercard, all in the name of the accused, Darren Renaud. The signatures and photographs on these items appeared to match what Const. Hillier had located on his MTO database.

[11] The officer read the accused his rights, including his right to counsel and cautioned him. The accused stated that he wanted to speak to a lawyer. The accused was then placed in the rear of the cruiser.

[12] Const. Hillier then proceeded with a search of the vehicle incidental to the arrest. The officer started at the right front quadrant of the vehicle. When he opened the front passenger door, he saw a brown travel bag on the passenger floor. It was unzipped. Inside and in plain view were several other bags. In one of these he located Canadian currency totalling about $19,900.00. In another of the bags were 5 vacuum-sealed bricks of cocaine weighing 259 grams, 255 grams, 31 grams, 31 grams and 32 grams respectively. Const. Hillier then rearrested the accused for possession of cocaine for the purpose of trafficking and reread him his rights in the manner that he had done earlier. The accused offered no response, other than a smile.

[13] Counsel agreed that the bags seized from the front passenger side of the vehicle contained cocaine in the amounts detailed and that these amounts were large enough including the manner of packaging plus the cash seized that this could led to an appropriate conclusion that these drugs were for the purpose of trafficking. Counsel also agreed that a total of $19,900.00 was seized from the front passenger side of the vehicle.

[14] The accused did not testify.

Analysis

[15] The accused does not contest the right of the officer to have made the initial stop of the vehicle as based on the officer’s MTO information that the vehicle was registered to one Damian Beckles, a then suspended driver.

[16] The accused, however, raises a number of legal issues based on the officer’s actions following his initial stop of the vehicle. The accused asserts that:

a) The officer lacked reasonable and probable grounds;

b) As he lacked reasonable and probable grounds, he should have let the driver proceed on his way;

c) In the absence of reasonable and probable grounds to have made the arrest, it was not reasonable for the officer to search the vehicle;

d) Once the officer had located drugs and money in the vehicle and further charges followed, the officer then had the obligation to restate the accused’s right to counsel, based on “a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the [initial] warning”: see R. v. Evans, [1991] S.C.R 869 at para. 48. Although the officer in his evidence stated that he advised the accused of his right to counsel on that second occasion, counsel for the accused states that in the absence of any notes by the officer of that expressed second right to counsel, I should not accept the officer’s evidence on that point.

[17] When the driver first identified himself as Damian Beckles, the officer had information that the driver of that vehicle was under suspension. Although the driver had told the officer that he was not under suspension, he had identified himself as Damian Beckles and provided licence, ownership and insurance in that name. On the basis of that information alone, I find that the officer had a duty not to let the driver continue on his way. He had sufficient evidence to give him reasonable and probable grounds to then have arrested the driver under s. 217(2) of the Highway Traffic Act for driving while that person’s licence was suspended: R. v. Tuduce, 2014 ONCA 547 at para. 44.

[18] The officer, however, initially did not arrest the driver, as he sought confirmation based on the driver’s licence, ownership and insurance certificate handed to him by the driver. That resulted in the unusual circumstances of the officer’s “in-cruiser” computer changing from Damian Beckles to Darren Renaud, each with different dates of birth, but with the indication that both were noted as suspended drivers, with the Beckles suspension post-dating the Renaud suspension. In addition, the photo of each showed similar facial appearances below which appeared similar handwriting idiosyncrasies in the signatures of each of the two names.

[19] Based on that information, the officer felt that he had reasonable and probable grounds to believe that he was dealing with the accused and not with one “Damian Beckles”. The officer then proceeded to arrest the accused for obstructing a peace officer.

[20] Did the officer have reasonable and probable grounds for that arrest?

[21] Particularly in the case of a warrantless arrest, the police must demonstrate that this arrest was based on reasonable and probable grounds. The SCC in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 referred with approval in para. 15 to these comments by Scott, L. J. in Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), at p. 329:

. . . The protection of the public is safe guarded by the requirement . . . that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. The requirement is very limited. The police are not called on before acting to have anything like a prima facie case for conviction.

The SCC in Storrey went on to state at paras. 16 and 17:

16. There is an additional safe guard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist, that is to say, a reasonable person, standing in the shoes of the police officer would have believed that reasonable and probable grounds existed to make the arrest . . .

17 . . . the Criminal Code requires that an arresting officer must subjectively have reasonable and probable 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 and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.

[22] The only person to testify was the officer. As such, there is no evidence before me to contradict him. I find the officer’s evidence to be credible. He acknowledged certain shortcomings and did not overstate his position. I accept the officer’s evidence without reservation. The standard for the officer to have had reasonable and probable grounds is not high. It must be a reasonably held belief and based on objective evidence. Based on the evidence the officer had, as I summarized above, I find that he had reasonable and probable grounds to arrest the accused for obstruction by falsely identifying himself to the officer engaged in the execution of his duty.

SEARCH INCIDENTAL TO ARREST

[23] Although he had initially arrested the accused for obstruction for falsely having identified himself, the officer had been confronted with the unusual occurrence of having received contradictory information on his “in-cruiser” computer regarding the identity of the driver. It was therefore not unreasonable, in my view, for the officer to undertake further steps to attempt to confirm the identity of the person he had just arrested. The Ontario CA noted in R. v. Shankar, 2007 ONCA 280 at para. 11:

The common law power to search incident to arrest endures under the Charter. The power flows from a legal arrest, and there need not be separate reasonable and probable grounds that the search will yield evidence or weapons. . . . the main purposes of search incident to arrest have been articulated by the Supreme Court of Canada as follows:

• to ensure the safety of the police and the public;
• To prevent the destruction of evidence; and
• To discover evidence of the offence or offences for which the accused was arrested.

See R. v. Caslake (1998), 1998 CanLII 838 (SCC), 121 CCC (3d) 97 at paras. 15- 25 (S.C.C.). I note this statement by the court at para. 15:

The power to search incident to arrest is not confined to the accused’s person; it extends to motor vehicles.

[24] Any expectation of privacy the accused may have had for this car was low: see R. v. Buckley, 2015 ONCA 364. He had produced an ownership in a name and birth date other than his own and for a vehicle he was not permitted to drive based on his suspension.

[25] I find that the search by the officer of the vehicle including the “pat-down” search of the accused was not only reasonable, but was a proper and expected exercise of the officer’s duty incidental to the arrest.

[26] I also note that having arrested the accused, the officer could not leave the accused’s vehicle on the side of the busy Highway 401. He had made arrangements to have the car towed. For that additional reason, the officer had the duty to take steps for the preservation and safe keeping of that vehicle while in the care and control of the police. That would involve entering the vehicle for purposes of itemizing visible property and is “entirely in keeping with the responsibility to safe guard the vehicle and its contents while they are in the care and custody of the law”: see R. v. Nicolosi (1998), 1998 CanLII 2006 (ON CA), 127 CCC (3d) 176 (ONCA at para. 30).

RIGHT TO COUNSEL

[27] When first arrested for obstruction, the officer read the accused his rights including his rights to counsel. In response, the accused indicated that he wished to speak to a lawyer. The officer had made reference in his notes to having so advised the accused at the time of his first arrest. After the officer had discovered the drugs and money in the car, the officer stated that he read the accused his rights again, including his rights to counsel. The accused on that occasion did not respond, but simply smiled. There was no reference in the officer’s notes about the fact that he had read the accused his rights to counsel a second time, following the accused being charged with more serious offences than was the case when he was first read his rights. As the SCC stated in R. v. Evans, [1991] S.C.R. 869 in paras. 47 and 48, on the duty to read the rights to the accused, upon being charged with further offences:

47 . . . This is because the accused’s decision as to whether to obtain a lawyer may well be affected by the seriousness of the charge he or she faces.

48 . . . the police must restate the accused’s right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning.

[28] I accept and hold that the officer had a duty to prepare “accurate, detailed and comprehensive notes as soon as practicable after an investigation”: see Wood v. Schaeffer, [2013] 3 S.C.R. at para. 67.

[29] As I already noted, the officer had made reference in his notes of the first caution and the right to counsel he read the accused. However, there is nothing in his notes about the accused being cautioned and advised of his right to counsel again when he was charged with the further and more serious offences relating to the drugs and money found in the car. Yet, I note that the accused had already indicated to the officer that he wished to speak to a lawyer upon being advised of his right to counsel on the first occasion. Although I have no hesitation in accepting the officer’s evidence that he gave the accused his rights to counsel a second time, I further note that these facts are to be distinguished from the facts before the SCC in R. v Evans, supra. The accused in that case was a youth of subnormal mental capacity. Although he was read his rights when initially arrested on a marijuana charge, that effort was limited to a garbled version. No attempt was made to communicate or explain the meaning of his rights to counsel. The accused declined to avail himself of his rights. During the interrogation that followed, that accused became a prime suspect in two murders. The police did not advise that accused of the change in the status of his detention, nor did they reiterate his right to counsel. The court stated at para. 47:

47 “. . . there is a duty on the police to advise the accused of his or her right to counsel a second time when new circumstances arise indicating that the accused is a suspect for a different more serious crime than was the case at the time of the first warning. This is because the accused’s decision as to whether to obtain a lawyer may well be affected by the seriousness of the charge he or she faces. The new circumstances give rise to a new and different situation, one requiring reconsideration of an initial waiver of the right to counsel”

Here, there had been no waiver by the accused when first advised of his right to counsel. Quite to the contrary, he had indicated that he wished to speak to a lawyer. That request was in the course of being honoured, but held in abeyance, as they were still on the side of Highway 401 when he was again arrested on the more serious charges.

[30] As already stated, I find that the officer advised this accused a second time of his rights, including his rights to counsel.

[31] I conclude that there was no violation of the rights of the accused under ss. 8, 9 and 10(b) of the Charter.

EXCLUSION OF EVIDENCE – S. 24(2) OF THE CHARTER

[32] S. 24(2) of the Charter provides:

(2). Where. . . a court concludes that 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.

[33] As stated by the SCC in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71:

. . . When faced with an application for exclusion under s 24(2) the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:

(1) The seriousness of the Charter – infringing state conduct (admission may send the message the justice system condones serious state misconduct),

(2) the impact of the breach on the Charter – protected interests of the accused (admission may send the message that individual rights count for little), and

(3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, that admission of the evidence would bring the administration of justice into disrepute.

[34] Even though I have not found that the facts in this case give rise to any Charter – infringing state conduct or the breach of any Charter – protected interests of the accused, I will proceed with the analysis in the event that I should be incorrect in my findings that there were no Charter breaches based on the facts before me.

Seriousness of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) – Infringing State Conduct

[35] Here the officer was faced with a novel situation. The driver had identified himself as Damian Beckles who turned out to be a suspended driver. The officer initially was not certain as to the truth of his alleged identity, based on the feedback his computer provided. It changed from Damian Beckles to the name of the accused who also was noted to be a suspended driver. Based on the information of the suspensions, the officer was obligated to detain the driver based on that information alone. As I already stated, the officer could have arrested the accused for that reason alone and then have proceeded with a search of the vehicle incidental to the arrest.

[36] If there was any Charter – infringing state conduct by the officer, it was minor and perhaps only procedural in nature.

Impact on the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) – Protected Interests of the Accused

[37] The accused was a suspended driver. The officer could not have let the accused proceed on his way, nor could he have left the car unattended on the side of a busy road such as Highway 401.

[38] The accused had a diminished privacy interest in the car, particularly as he was a suspended driver. An inventory search of the vehicle was likely to follow, just for that reason, as the vehicle was to be impounded under s. 55.2 of the Highway Traffic Act. That is how matters would have unfolded had the accused not been arrested for the charges he now faces, but the charge of driving while under suspension under the Highway Traffic Act.

[39] Further, the accused did not own the car, as it was registered in the name of Damian Beckles and, of course, he should not have been driving, as his driving privileges were suspended under the HTA.

[40] For those reasons, I find that the impact of the Charter – protected interests of the accused were minimal.

Society’s Interest in Adjudication on the Merits

[41] As the SCC noted in R. v. Grant at para. 79:

Society generally expects that criminal allegations will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth – seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion.

[42] The evidence before me indicates that the officer in conducting the search of the vehicle found the drugs and money in a bag on the floor in the front passenger side of the vehicle. This is non-conscripted and reliable evidence which gave rise to these charges before me.

[43] Even if I am incorrect in my assessment that these facts do not give rise to the finding that there were any Charter breaches, I decline to exclude the evidence, as I find that the admission of the evidence on these facts would not bring the administration of justice into disrepute.

[44] By agreement of counsel, the evidence on this application shall apply to the trial as a whole.

[45] The accused will be found guilty of counts 1, 2, and 3. As there is no evidence before me with respect to count 6, that count will be dismissed. With respect to counts 4 and 5, I wish to hear further oral submission from counsel to whether there is or is not sufficient evidence for me to make a finding of guilt with respect to each of these two counts.

Justice W. Tausendfreund

Released: August 22, 2016

CITATION: R. v. Renaud, 2016 ONSC 4663

COURT FILE NO.: CR-14-409

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DARREN A. RENAUD

reasons for judgment

TAUSENDFREUND, J

Released: August 22, 2016