Court File and Parties

COURT FILE NO.: 127/15 DATE: 2016/09/30 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen P. Wenglowski, for the Crown Crown

• and -

Patrick McKinnon V. J. Singh, for the Accused Accused

HEARD: August 15, 16 and 17, 2016 The Honourable Justice J. R. Henderson

REASONS FOR JUDGMENT

INTRODUCTION

[1] Patrick McKinnon (“McKinnon”) is charged with two criminal offences, namely,

1. that he unlawfully possessed heroin, contrary to section 4(3)(a) of the Controlled Drugs and Substances Act, and
2. that he breached a condition of his recognizance that he not possess or consume any alcohol or non-medically prescribed drugs.

[2] There is no dispute that on July 12, 2014, McKinnon was a passenger in a Montana van that was being operated by Trevor Winterstein (“Winterstein”), and that two uniformed Niagara Regional Police Service officers, Glenn Chambers and Mazen Freiwat (“Chambers” and “Freiwat”), stopped that van and questioned both Winterstein and McKinnon.

[3] In an application pursuant to the Canadian Charter of Rights and Freedoms (“Charter”) that was heard in conjunction with the trial, defence counsel alleges that the traffic stop, the detention of McKinnon, and the questioning of McKinnon were breaches of s. 8 and s. 9 of the Charter, and submits that any evidence obtained as a consequence of these breaches should be excluded from the trial.

[4] Defence counsel submits that the traffic stop was a ruse employed so that the officers could check on, or put pressure on, McKinnon. Further, even if there was a lawful traffic stop, defence counsel submits that the detention of McKinnon was arbitrary, and the questioning of McKinnon was an unreasonable seizure of information.

[5] The Crown submits that the officers had reasonable grounds to stop the van as the officers believed that the driver was not wearing a seatbelt. Further, the officers searched the van and found two open cans of beer and a small amount of marijuana. The Crown submits those findings provide the grounds to detain and question McKinnon.

THE EVIDENCE

[6] The Crown’s case is based primarily on the testimony of the two police officers, Chambers and Freiwat, who made the traffic stop. Their testimony was, but for a few minor differences, essentially the same.

[7] The officers both testified that at approximately 7:43 p.m. they were eastbound in a marked police cruiser on Queenston Street when they passed the intersection of Frank Street where a Montana van was stopped at the stop sign. Both officers testified that they observed that the driver of the van, later identified as Winterstein, was not wearing a seatbelt.

[8] Because the driver was not wearing a seatbelt, the officers decided to stop the van. Accordingly, the officers followed the van, and stopped it on Tasker Street.

[9] Both officers testified that at the time the van was stopped neither one of them was familiar with the van itself or the occupants.

[10] Chambers exited the cruiser and approached the driver, who verbally identified himself as Winterstein. Chambers asked him for his driver’s licence, vehicle ownership, and proof of insurance.

[11] Chambers noted a strong odour of alcohol coming from the vehicle, and testified that Winterstein had glassy eyes and a smell of alcohol on his breath. Winterstein produced his driver’s licence, but was unable to produce any ownership or insurance papers.

[12] Chambers formed the belief that Winterstein was operating a motor vehicle while impaired by alcohol, and at 7:45 p.m. Chambers arrested Winterstein for that offence.

[13] Also, Chambers testified that while he was dealing with Winterstein he observed a can of beer under the driver’s seat and another can of beer under the passenger seat. He testified that these cans of beer were standing upright under the seats and were plainly visible. Chambers also stated that he observed a small amount of a green leafy substance believed to be marijuana in a napkin in a cavity in the front part of the centre console of the van. Chambers relayed his observations with respect to the beer cans and the marijuana to Freiwat.

[14] After Chambers placed Winterstein under arrest, he escorted Winterstein to the police cruiser, placed Winterstein in the backseat, and then sat in the cruiser to do the paperwork.

[15] In the meantime, Freiwat had approached the passenger side of the vehicle. He testified that his intention was to keep the passenger engaged while Chambers was dealing with the driver.

[16] Freiwat said that when he approached the passenger, he recognized him from another incident, but could not recall his name. He also testified that it appeared that the passenger recognized him as well. Freiwat therefore asked the passenger for his name and the passenger replied that he was Patrick McKinnon. He testified that McKinnon was co-operative, but that he noted a smell of alcohol on McKinnon’s breath.

[17] Freiwat was aware that Winterstein had not produced any vehicle ownership papers, and that Chambers had observed two beer cans and some marijuana in the vehicle. Therefore, Freiwat asked McKinnon to exit the vehicle so that Freiwat could search the van. Freiwat did a pat-down search of McKinnon, and then he searched the van. Freiwat claimed that McKinnon was not detained at that point.

[18] In his search of the van, Freiwat located a can of beer under each of the driver’s seat and passenger seat. Freiwat testified that both cans of beer were open and laying on their sides. Both were still cold and each contained some beer. Freiwat also discovered a small amount of marijuana in a napkin in a cavity at the front of the centre console.

[19] Then, at 7:58 p.m. Freiwat asked Chambers to do a computer check of the name Patrick McKinnon. Chambers used the police computer system in the cruiser to run McKinnon's name and determined that McKinnon was bound by a recognizance with a condition not to possess or consume any alcohol or non-medically prescribed drugs. Chambers informed Freiwat of the recognizance.

[20] At 8:00 p.m. Freiwat arrested McKinnon for breach of recognizance as he believed that McKinnon had been consuming alcohol.

[21] Previously, after Winterstein had been arrested, the officers had called the dispatcher for another unit to attend the scene to deal with towing the van from the area. Officer Samuel Jackson responded to that request, and he arrived on the scene at 7:51 p.m.

[22] After McKinnon was arrested, Freiwat turned him over to Jackson. Then, at 8:08 p.m. Freiwat and Chambers transported Winterstein to the police station in their cruiser.

[23] Jackson then transported McKinnon to the police station. McKinnon was paraded before the booking officer in the cell area at 8:35 p.m. During the booking of McKinnon, Special Constable Roberts observed that McKinnon was attempting to hide something with his foot. When McKinnon moved from the area, Roberts saw that a small bag had been under McKinnon’s foot. That bag was seized and found to contain five grams of heroin.

[24] Regarding the defence evidence, McKinnon testified on the Charter application and said that he and Winterstein had been working together all day cutting grass in the Glenridge area of St. Catharines. They finished work at approximately 7:00 p.m. At that point, McKinnon stayed in the Glenridge area to unload and park his trailer. Winterstein left for a short time before he returned to pick up McKinnon to give him a ride home.

[25] They had been driving in Winterstein’s van for approximately 10 minutes when they were stopped on Tasker Street by the two police officers.

[26] McKinnon testified that he had not consumed any alcohol that day; that Winterstein had not consumed any alcohol in his presence; and that Winterstein had left the Glenridge area for only 20 to 30 minutes before returning to pick him up. When Winterstein picked him up, McKinnon said that there were no signs that he had consumed any alcohol.

[27] McKinnon also testified that during the drive home, both Winterstein and McKinnon were wearing their seatbelts. He said that he usually notices whether people in his vehicle wear their seatbelts, and he specifically noticed that Winterstein wore his seatbelt that day.

[28] McKinnon acknowledged that the Montana van was stopped by police on Tasker Street at approximately 7:45 p.m. He agreed that Chambers went to the driver’s side of the van and had no interaction with McKinnon.

[29] He said that Freiwat came to the passenger’s side of the vehicle and “he obviously recognized me.” Freiwat said, "Hey Pat", and then said, "We have a trial coming up next month". Freiwat then asked McKinnon to step out of the vehicle and conducted a pat-down search. Then, Freiwat searched the vehicle.

[30] McKinnon said that he asked Freiwat if he could leave approximately five times, but that Freiwat told him that he could not leave and to sit on the curb on Tasker Street. McKinnon said that he sat on the curb for approximately 15 minutes. During that time he felt that he was detained.

[31] Approximately 20 minutes after the vehicle had been stopped, Freiwat told him that he had found some marijuana in the vehicle. McKinnon said that Freiwat then arrested him for possession of marijuana. McKinnon specifically said that he was never informed at the scene that he was being arrested for breach of recognizance.

[32] McKinnon also testified that the marijuana could not have been found in a cavity at the front of the centre console, because there was no cavity in that part of the van, only a cup holder. He said that he never saw any marijuana in the van, and he was not aware of any marijuana.

[33] Further, he did not see any beer cans in the van, and he was not aware of any beer cans in the van. He denied that he was drinking beer.

[34] When McKinnon arrived at the police station he believed that he was under arrest for possession of marijuana. He said that it was not until approximately 11:25 p.m. at the police station that Freiwat informed him that he was also being charged with breach of recognizance.

FINDINGS OF FACT

[35] The police MAXICAD system acts as a computerized activity log for the activities of police officers. Entries are made into the MAXICAD system as police officers carry out their duties. I accept the MAXICAD log as accurate.

[36] I therefore find that Chambers and Freiwat initially queried the license plate number of Winterstein’s van at a few seconds before 7:43 p.m. I find that this query was made shortly after Chambers and Freiwat observed the van on Frank Street and before the van was stopped on Tasker Street.

[37] Further, I find that at 7:47 p.m. there was a request made by the officers for another unit to deal with towing the van, and that Jackson responded to that request. Therefore, I find that Winterstein was arrested at approximately 7:45 p.m. and that Chambers had Winterstein in custody in the cruiser by 7:47 p.m.

[38] The MAXICAD system confirms, and I accept, that at 7:51 p.m. Jackson arrived on the scene, and that at 7:58 p.m. the computer in the Chambers/ Freiwat cruiser was used to query the name of Patrick McKinnon.

[39] The MAXICAD system confirms, and I accept, that Chambers and Freiwat left the scene with Winterstein at 8:08 p.m., and that Jackson left the scene with McKinnon at 8:12 p.m.

[40] Defence counsel challenged the credibility of Chambers and Freiwat, particularly regarding the reason for the traffic stop. The position of defence counsel was that the officers fabricated the story about Winterstein not wearing a seatbelt; that the officers really just wanted an excuse to stop the van so they could check on McKinnon.

[41] Defence counsel relied upon the alleged inadequacy of the officers’ notes; the discrepancies in the testimony of these two officers; and a conflict between their evidence and Jackson’s evidence.

[42] Regarding the officers notes, my only criticism is that neither Chambers nor Freiwat made notes until approximately four hours after this incident had occurred. It would have been preferable if they had used some of their down time to at least make a few notes closer to the time of the events, and then flesh out those notes later in the day.

[43] That being said, the activities set out in the MAXICAD system generally corroborate the notes made by the officers. Further, I find that it is neither unusual nor unacceptable for one officer to confer with another officer while making his notes in order to confirm times and some details.

[44] Overall, I find that the notes are at least adequate for our purposes. I also find that the notes do not support the defence theory that there was some collusion.

[45] Regarding the alleged discrepancies, first there is an obvious discrepancy as Chambers said that he observed that the driver of the van was not wearing a seat belt and he made the decision to pull over the van; whereas Freiwat said that he saw that the driver of the van was not wearing a seatbelt and he asked Chambers to pull over the van.

[46] In my opinion, this inconsistency is not significant. Both Chambers and Freiwat could have observed that the driver was not wearing a seatbelt.

[47] Further, the discrepancy likely has more to do with the passage of time than with anything else. Also, the fact that there is a discrepancy in their testimony certainly suggests that the officers are not colluding with one another.

[48] For these reasons, I accept that one or both of Chambers and Freiwat observed that the driver of the van was not wearing a seatbelt. It is irrelevant as to which one made this observation first.

[49] The next discrepancy alleged by defence counsel relates to Freiwat's testimony that he was not aware at first that there was a passenger in the van, even though he observed that the driver was not wearing a seatbelt.

[50] On this point I accept Freiwat's explanation for this oversight. I accept that Freiwat was focused on the driver, as was his training, when he first observed the van. I also accept that the police cruiser drove by the intersection at Frank Street at approximately 50 km/h, and therefore Freiwat was only able to get a brief look into the front of the van as they drove by. Accordingly, I accept Freiwat's evidence on this point.

[51] Defence counsel was also critical of Chambers’ evidence that he observed beer cans standing upright under the seats of the van and marijuana in a napkin in the console. Defence counsel submits that Chambers could not possibly have seen under the seats from his point of view, and could not have seen such a small amount of marijuana in a napkin from his position. He also relies upon McKinnon's evidence that there was a plastic side piece covering the bottom portions of the seats and that there was no cavity in the front console.

[52] I have considered this evidence carefully. If I had been provided with specifications of the Montana van, or drawings of the van, or a picture of the inside of the van, I might have been able to draw some conclusions about sightlines. But, if that had been the case, I am certain that Chambers would have been able to respond to any cross-examination about the sightlines. Also, for reasons discussed later, I cannot rely on McKinnon’s testimony as to the interior of the van because McKinnon has some credibility problems. Under these circumstances, I accept Chambers’ evidence as to what he could see.

[53] Also, I did not believe that Chambers’ evidence was intended to be definitive. At the time Chambers made his observations, Chambers was primarily involved with Winterstein. At best, Chambers’ evidence was that he caught a glimpse of what he believed were beer cans and marijuana in the van, and he relayed this information to Freiwat. It was anticipated that Freiwat would do a more thorough search. I accept that evidence.

[54] Finally, there is an issue with respect to an inconsistency between the testimony of Chambers and Freiwat, and Jackson's notes. Defence counsel submits that Jackson's notes could be interpreted to mean that when Jackson arrived on the scene at 7:51 p.m., McKinnon was already in custody on a breach of recognizance charge.

[55] In my view, Jackson is a very conscientious officer and he was forthright in presenting his evidence. Jackson acknowledged that he understood how someone could interpret his notes in this way, but that to do so would not be correct.

[56] I accept Jackson's evidence that his notes should not be interpreted as suggested by defence counsel. Specifically, I accept that Jackson arrived at 7:51 p.m. and had little to do with Chambers or Freiwat until approximately 8:00 p.m. when Freiwat turned McKinnon over to him.

[57] I also accept that Jackson amended his notes later that day so as to include the incident report number for the breach of recognizance charge. Unfortunately, Jackson did so by inserting this incident report number at the beginning of his notes, rather than by adding an addendum at the end of his notes.

[58] Regarding McKinnon's testimony, I have real concerns about his credibility, particularly with respect to consumption of alcohol and wearing seatbelts.

[59] First, I find that Winterstein was very obviously impaired by alcohol at the relevant time. His Breathalyzer readings taken at the police station that evening were 169 mg of alcohol in 100 ml of blood and 151 mg of alcohol in 100 ml of blood. These readings suggest that Winterstein consumed well more than one or two beers.

[60] McKinnon’s testimony that Winterstein did not consume any alcohol in his presence, that Winterstein was only out of his presence for 20 to 30 minutes, and that Winterstein had no odour of alcohol and no signs of impairment when Winterstein picked up McKinnon, simply does not ring true.

[61] Therefore, I find either that McKinnon was misleading the court or that McKinnon had a much diminished ability to perceive events around him. In any event, this point taints McKinnon’s credibility on all matters.

[62] Furthermore, McKinnon’s testimony that he was not aware that he faced a breach of recognizance charge until sometime after 11:00 p.m. does not ring true. I find that a breach of recognizance was the primary concern of the officers at least from 7:58 p.m. when they queried McKinnon’s name on the police computer. McKinnon was arrested approximately two minutes after it came to Freiwat’s attention that he was on a recognizance.

[63] Therefore, in my view, it is extremely doubtful that Freiwat would not have told McKinnon that he was charged with breach of recognizance at the time of his arrest. Moreover, all of the charges, including the breach of recognizance charge, would have been reviewed with McKinnon when he was booked into the cells at 8:35 p.m. Again, this testimony by McKinnon taints his credibility on all matters.

[64] Overall, with respect to the facts of this case, I accept the evidence of Chambers, Freiwat, and Jackson, subject to the comments that I just made, and subject to one further finding I will make with respect to the detention of the accused.

THE TRAFFIC STOP

[65] I have found that one or both of Chambers and Freiwat observed that Winterstein was not wearing a seatbelt. Section 216(1) of the Highway Traffic Act (“HTA”) permits a police officer “in the lawful execution of his or her duties and responsibilities...” to stop a motor vehicle. Therefore, because of the suspected HTA infraction, the officers had the right to stop the van and to request that Winterstein produce his driver’s licence, vehicle ownership, and proof of insurance.

[66] In this case, Winterstein could not produce the vehicle ownership or proof of insurance. Therefore, the officers were entitled to make a reasonable search of the van for the purpose of locating these documents. See the case of R. v. Smith, 2008 ONCA 502.

[67] By 7:45 p.m., Chambers had lawfully arrested Winterstein for the criminal offence of impaired driving. Therefore, from that point, the officers were entitled to search the van in a reasonable manner for evidence that related to that offence. See the case of R. v. Caslake, [1998] 1 S.C.R. 51.

[68] In addition, Chambers had observed beer cans and marijuana in plain view in the van and had relayed this information to Freiwat. Considering that the umbrella offence with respect to the search of the van was an impaired driving charge, it was reasonable for Chambers and Freiwat to search the van for evidence of alcohol, alcohol consumption, or narcotics.

[69] For these reasons, I find that Chambers and Freiwat were entitled to search the van thoroughly for the vehicle ownership and insurance papers, for alcohol and narcotics, and for evidence that would support the impaired driving charge. Overall, I find that the stopping of Winterstein’s van and the search of the van was lawful.

THE DETENTION OF MCKINNON

[70] Freiwat testified that McKinnon was not detained at the scene prior to McKinnon’s arrest. I disagree.

[71] If a police officer lawfully stops a vehicle and detains the driver, any passenger in the vehicle, by necessity, is detained, at least briefly. That is, it is impossible to stop a vehicle and a driver without stopping the passengers. Therefore, I find that McKinnon was initially detained by reason of the lawful stop of Winterstein’s van and the officers’ investigation of the driver, Winterstein.

[72] Furthermore, I find that once Freiwat engaged McKinnon, McKinnon was psychologically detained. A person who complies with a police direction or command reasonably believing that he or she has no choice is detained for the purpose of s. 9 of the Charter. See the decisions in R. v. Therens, [1985] 1 S.C.R. 613 and R. v. Mann, 2004 SCC 52.

[73] In this case, Freiwat had a conversation with McKinnon, asked McKinnon to step out of the vehicle, did a pat-down search, and commenced searching the vehicle. I do not accept McKinnon’s evidence that he was told that he could not leave, but I accept that Freiwat directed McKinnon to sit on the curb while Freiwat searched the van. In my view, McKinnon would have felt that he could not leave. Therefore, for the purposes of s.9 of the Charter, I find that McKinnon was detained at the scene.

[74] Thus, the issue here is not whether McKinnon was detained, but whether the detention was arbitrary.

[75] In the case of R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214 (OCA), a police officer stopped a vehicle because of an alleged HTA violation. He asked the driver for the necessary documentation and the driver produced same. The officer also asked all passengers, including the accused, Harris, to identify themselves so he could run their names through the police computer.

[76] At paras. 17 to 27 of the Harris decision, in considering the s. 9 issue, Justice Doherty found that the passenger, Harris, had been detained as he would have felt that he was not free to leave. However, Justice Doherty found that Harris’s detention was not arbitrary as the identification and investigation of the passengers was contemporaneous to the lawful investigation of the driver.

[77] At para. 27 of Harris, Justice Doherty wrote the following:

Harris's detention, that is the limitation on his personal physical freedom imposed by Lipkus's actions, was not arbitrary in the sense that it was random or without individualized cause. The detention flowed from the officer's observations of the vehicle, his decision to pursue the Highway Traffic Act investigation, and the reasonable steps he took to assume control of the occupants of the vehicle.

[78] Therefore, the Harris case stands for the proposition that, regardless of whether a police officer is entitled to demand that a passenger identify himself, an officer may detain a passenger for a short period of time that is contemporaneous to the lawful detention of the driver.

[79] Thus, in the present case, the initial period of McKinnon’s detention was lawful. However, defence counsel submits that, even so, McKinnon’s detention became unlawful once Winterstein was arrested at 7:45 p.m. as McKinnon’s detention was no longer enmeshed with Winterstein’s detention. In my view, that submission fails because by 7:45 p.m., McKinnon himself was being investigated.

[80] Specifically, by 7:45 p.m., Freiwat was aware that there were two cans of beer in the van. Then, within a short period of time, Freiwat observed that the beer cans were both partly full and were still cold. This suggested that one beer can had been partly consumed by each of Winterstein and McKinnon. Therefore, by that time, McKinnon was properly suspected of the offence of consuming alcohol in a public place.

[81] Moreover, by 7:45 p.m., a substance believed to be marijuana had been observed in the van, and the officers were unsure of whether the marijuana was owned by Winterstein or McKinnon or both. Therefore, McKinnon was also reasonably suspected of the offence of possession of marijuana.

[82] Given that McKinnon was being investigated for these possible offences, Freiwat was entitled to further detain McKinnon while he searched the van and while he ran McKinnon’s name through the police computer system. The ongoing detention of McKinnon was not arbitrary.

[83] Accordingly, I find that there has been no breach of s. 9 of the Charter.

THE QUESTIONING OF MCKINNON

[84] Defence counsel alleges that asking for McKinnon’s name and running McKinnon’s name through the police computer constitutes a seizure and is a breach of s. 8 of the Charter.

[85] I accept that a seizure occurs when a police officer asks an accused for his name. That is, a seizure is a non-consensual taking by a state agent of anything in which a person has a reasonable expectation of privacy. I accept that information can be seized. See the Harris case at para. 33.

[86] It should be noted that the mischief associated with unreasonably seizing the name of an accused is discussed in the Harris case at paras. 38 and 39. A police officer, through the police computer, has immediate access to a vast amount of information about any person as soon as the officer can identify that person. Thus, the seizure of a person’s name or identification is properly construed as the seizure of information about the accused’s criminal history, bail status, and terms of release.

[87] That being said, the present case differs from the Harris case as Freiwat did not make a specific demand for McKinnon’s name or identification. Rather, I find that McKinnon’s name came up in a more casual manner after Freiwat and McKinnon recognized each other. In my view, Freiwat’s request for the accused’s name in this case was not unreasonable as it was part of a human experience. An officer who recognizes a person cannot be expected to try to hide that recognition. An officer is entitled to interact with any person in a respectful human manner. Therefore, I find that the seizure of McKinnon’s name under these circumstances was not a breach of s. 8 as it was not an unreasonable seizure.

[88] Thereafter, I find that it was not unreasonable for Freiwat and/or Chambers to run McKinnon’s name through the police computer. By the time the name was run through the police computer at 7:58 p.m., McKinnon was suspected of committing the offence of possession of marijuana and/or the offence of consuming alcohol in a public place. The police officers were entitled to pursue their investigation of both of those matters by running McKinnon’s name through the police computer.

[89] For these reasons, I find that there has been no breach of s. 8 of the Charter.

CONCLUSION REGARDING CHARTER APPLICATION

[90] For the reasons set out above, I find that there has been no breach of s. 8 or s. 9 of the Charter. The Charter application is dismissed.

CONCLUSION REGARDING THE CHARGES

[91] I turn now to the two offences with which McKinnon is charged.

[92] McKinnon did not testify about the bag of heroin. He did testify that he had not consumed any alcohol; however, I do not believe his evidence and it does not raise a reasonable doubt. The issue is, whether on all of the evidence, the Crown has proved its case.

[93] With respect to count number one, I accept the evidence of Officer Roberts that McKinnon was attempting to hide a small bag while he was in the booking area of the cells. I find that the bag was in McKinnon’s possession, and I find that the bag contained five grams of heroin.

[94] Accordingly, I find McKinnon guilty of the offence of possession of heroin.

[95] Regarding count number two, breach of recognizance, it is acknowledged that McKinnon was subject to a recognizance with a condition not to possess or consume any alcohol or non-medically prescribed drugs.

[96] I infer that McKinnon had been consuming beer while he was in Winterstein’s van based on the evidence that there was a partly full, cool can of beer under McKinnon’s seat in the van, and on Freiwat’s testimony that he could smell the odour of alcohol on McKinnon’s breath.

[97] Accordingly, I find McKinnon guilty of breach of recognizance.

J. R. Henderson J. Released: September 30, 2016