R. v. Hansen, 2016 ONSC 6789

CITATION: R. v. Hansen, 2016 ONSC 6789

COURT FILE NO.: CR-16-17

DATE: 2016-10-31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Michael Hansen

Accused/Applicant

COUNSEL:

Erin J. Lainevool, for the Crown/Respondent

Jeffrey Langevin, for the Applicant

HEARD in North Bay: October 26-27, 2016

RULING ON CHARTER APPLICATION

GAUTHIER, J.

The Application

[1] The accused, Michael Hansen (“Hansen”), is charged with possession for the purpose of trafficking and with breach of a probation order.

[2] Hansen seeks an order excluding any evidence seized during the detention, arrest, and search of his person and the vehicle he was travelling in on October 22, 2015, pursuant to ss. 8, 9, and 24(2) of the Charter.

Facts

[3] Detective Constable S. Reaume (“Reaume”) is a drug investigator with the North Bay Police Service. During the afternoon of October 22, 2015, Reaume received a telephone call from an anonymous person whom I shall refer to as “anonymous informant I or AI”.

[4] AI told Reaume that Hansen would be travelling to North Bay from Ottawa that day to sell illegal controlled substances. The information included the make, model, colour, and license plate number of the vehicle that Hansen would be travelling in: a Pontiac Sunfire.

[5] Reaume conferred with other officers, including officers from the patrol division of the North Bay Police Service, and set up surveillance on the highway leading into North Bay from Ottawa.

[6] At 6:59 p.m. officers observed the Sunfire pass their location heading toward North Bay. The Sunfire took the off or exit ramp leading into North Bay, then abruptly diverted off the exit ramp onto the highway away from North Bay. A police cruiser was positioned to prevent the Sunfire from getting away and the vehicle was stopped. Officer Marshall exited the cruiser and stood in the roadway signaling to the Hansen vehicle to stop. Hansen was in the front passenger seat and the vehicle was being driven by Hansen’s uncle, David Hansen.

[7] The vehicle stopped and Hansen was immediately arrested, read his rights and advised of the offence for which he was being arrested, that is possession for the purpose of trafficking.

[8] Officers searched Hansen and the vehicle and they located the following items in the trunk of the vehicle:

1. Black back pack with an odour of marijuana;
2. Phone book with a debt list;
3. Marijuana wrapped in plastic wrap, containing 4 separate baggies of marijuana totaling 13.5 grams;
4. White powder substance, suspected cocaine, wrapped in plastic containing six baggies of cocaine totaling 84 grams;
5. Six methamphetamine pills; and
6. Piece of yellow paper with Applicant’s name, email address and passwords for email and Apple ID.

[9] Hansen was known to the North Bay Police Service as a person involved in the illegal drug trade in North Bay.

Hansen’s Position

[10] His s. 8 and 9 Charter rights were breached. The information provided by AI was not legally sufficient to provide reasonable and probable grounds to arrest and/or search him. Hansen concedes that Reaume had the subjective grounds however the facts could not lead to the objective belief required for the arrest and subsequent search. Therefore, as Hansen’s arrest was without reasonable and probable grounds, the search which ensued was in breach of Hansen’s s. 8 Charter rights as there was neither a warrant, nor was the search a “search incident to arrest”. Neither the arrest nor the search was lawful, thus the evidence seized must be excluded, pursuant to s. 24(2) of the Charter.

[11] Hansen submits that the information provided by AI was not only “fairly vague” but also inaccurate in that Hansen was not operating the vehicle as predicted, and the fact of another person being present in the vehicle was not conveyed to the officer. The “tip” is essentially a conclusory statement, and nothing more than mere rumour or gossip.

[12] Hansen further submits that the police should have obtained a warrant to search the vehicle and that their policy of not obtaining search warrants prior to arrests in such circumstances as the ones in this case, reflects an institutional disregard for the constitutional rights of members of the community. As a result, the breach is a serious one.

[13] Hansen’s interests were heavily impacted by the breaches. His privacy rights were completely disregarded and his “rights to life and liberty were also severely impacted when the police arrested him at gunpoint without the requisite grounds”.

[14] Excluding the evidence is required to adequately condemn the police’s conduct on October 22, 2015.

Crown’s Position

[15] The Crown submits that the information provided by AI was sufficiently compelling. It identified the make, model, colour and license plate of the vehicle in which Hansen was travelling, as well as the direction of travel.

[16] AI, although anonymous, was known to Reaume as he/she had provided information to Reaume anonymously on approximately 20 occasions prior to October 22, 2015. Although Reaume had not previously acted on any of the information provided by AI, he described AI as credible.

[17] Reaume had independent knowledge that Hansen had been convicted of drug offences, and that he had been involved in a police chase on an earlier occasion when he was in possession of illegal substances.

[18] The police conducted surveillance which corroborated the information provided by AI. The exact vehicle described by the informant was located and identified on the date and the approximate time that the information predicted on the most direct route between Hansen’s jurisdiction of residence and the City of North Bay.

[19] The police had reasonable and probable grounds to make the arrest. They are not required to establish a prima facie case for conviction prior to making the arrest.

[20] The search incident to arrest was authorized by s. 495(1) of the Criminal Code of Canada. The search was conducted in a reasonable manner and yielded evidence referable to the reason for the arrest.

[21] There was no Charter breach and there is no basis upon which to exclude the evidence.

Analysis

[22] Section 495(1) of the Criminal Code of Canada provides as follows:

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…..

[23] While it is conceded that Reaume subjectively had reasonable grounds on which to base the arrest, the question to be answered is whether or not those grounds are justified from an objective point of view.

[24] That question will be answered in the affirmative if a reasonable person (that is a person invested with the knowledge and experience of a knowledgeable and experienced police officer in the investigative activity) placed in the position of the officer concludes that there were reasonable and probable grounds for the arrest. R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241.

[25] When the arrest and subsequent search are grounded on information from outside the police force, the court must consider the totality of the circumstances, including whether the information was compelling, whether the source of the information was credible, and whether the information was corroborated by police investigation prior to making the decision to make the arrest. R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140.

[26] The above three factors (compelling, credible, and corroborated) are considered together; they do not form a separate test on an individual basis. Weaknesses in one area may, to some extent, be compensated by strengths in the other two. (Debot) One circumstance is not elevated above the others as an essential prerequisite to the existence of reasonable grounds. R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451; S.C.C. 65.

[27] The information provided by AI is reasonably compelling as it provides detail. It goes beyond being merely a conclusory statement. It is not simply a statement that Hansen has committed offences, or will be committing offences. The information identified Hansen, the description of the vehicle he would be travelling in (make, model, colour, and license plate number), Hansen’s point of departure and his destination, and the fact that he would be transporting illegal drugs.

[28] Nor was the information the “mundane, generic, nor relating to the innocuous or prosaic” events described in R. v. Bernabe, 2014 ONCJ 628, 322 C.R.R. (2d) 328 or other s. 8 and 9 Charter cases. Finally, the information provided goes beyond what is publicly known or readily available.

[29] Insofar as the credibility of the tip is concerned it is of note that, although not known by name to Reaume, the informant was known to Reaume by voice. He/she had communicated with Reaume in his capacity as a drug investigator on as many as 20 occasions in the past. While the information previously provided did not result in investigations, seizures, or arrests, Reaume believed the authenticity of the information provided; he testified that had no reason to suspect that any of the information provided by AI, at any time, was either incorrect or untruthful. Reaume conceded that some of the information that AI had provided in the past was readily available and/or public. Reaume also explained that he had never acted upon AI’s information before October 22, 2015 because the information was too “close”; Reaume feared that taking action on the information would risk identifying the informant. When asked whether AI had disclosed a specific location within North Bay where Hansen was headed, Reaume declined to answer as he feared answering may disclose the identity of AI. Finally, on the issue of AI’s credibility, Reaume indicated that he had been able to corroborate information given by AI in the past.

[30] The facts of this case are distinguishable from those in R. v. Zammit 1993 CanLII 3424 (ON CA), 1993 CarswellOnt 93 (C.A.) in which case the officer had never dealt with the informer before; there was nothing that made that informer credible with respect to information predicting criminal activity. The facts are far more similar to the scenario in R. v. Zettler, [2013] O.J. No. 4893, a decision of Hennessy J., upheld by the Ontario Court of Appeal, [2015] O.J. No. 4703. The informant in that case however was a proven reliable source of information and his motivation for providing information was known. Little is known about AI, but he/she nonetheless had provided corroborated information to Reaume in the past.

[31] I accept Reaume’s evidence that AI was/is a reliable informant, given the past contact between AI and Reaume and Reaume’s experience as a police officer (13 years) and as a street crime investigator (5 years).

[32] I am persuaded that the totality of the circumstances in this case meets the standard of reasonableness. The police had reasonable and probable grounds to believe that Hansen was about to commit an indictable offence on October 22, 2015, therefore his arrest on that date was lawful.

[33] I turn now to the issue of the lawfulness of the search.

[34] A search will be reasonable within the meaning of s. 8 of the Charter where it is authorized by law, the law itself is reasonable, and the search is conducted in a reasonable manner. R. v. Golden, [2001] CarswellOnt 4253.

[35] For a search to be incident to arrest it must be related to the reasons for the arrest itself. In this case, there were reasonable and probable grounds to believe that Hansen was committing or was about to commit the offence of possession for the purpose of trafficking in a narcotic. The purpose of the search was to discover illegal drugs on the accused’s person or within his control, therefore the search was incident to arrest, and therefore was a lawful search.

[36] The common law power to search incident to an arrest is not unreasonable and does not violate s. 8 of the Charter if, as in this case, the search was truly incidental to arrest and was reasonably performed. No warrant authorizing the search is required. The existence of reasonable and probable grounds is not a prerequisite to the existence of the police power to search incidentally to an arrest. R. v. Caslake (1998), 1998 CanLII 838 (SCC), 121 C.C.C. (3d) 97 (S.C.C.).

[37] AI’s information was corroborated. The exact vehicle described was located and identified on the route identified by AI within a time frame consistent with the actual travel time required from Ottawa to North Bay. Hansen was in the vehicle, albeit not the driver.

[38] It is of note as well that Hansen was known to Reaume and the police as having prior involvement in illegal drugs. Reaume had personal knowledge that Hansen had previously been arrested in North Bay for drug related offences and for weapons offences. Reaume was aware that Hansen had also been arrested for drug related offences in Renfrew County, and he had served documents on Hansen in connection with that charge.

[39] There is no evidence to establish that the search was unreasonable.

[40] I wish to comment on David Hansen’s evidence that the arrest was a “guns drawn arrest”. Each of the five officers who testified denied having pulled out a gun in the course of the stop, arrest, or search which occurred on October 22, 2015.

[41] David Hansen became quite excitable when describing the police stop. He said there were police everywhere, there were guns drawn, one of which was pointed at his head. Police were threatening to kill him if he did not comply with their instructions. Later in his evidence, he conceded that one officer “for sure” had his gun drawn, and he thought he had seen a second gun drawn. He described how, during the ride to the police station, the officer was friendly and chatty with him. Things had gone from chaos to calm he said. David Hansen also testified that he would have done the same thing the police officer standing out in the road did if he had been in his position with a vehicle heading toward him.

[42] Defence counsel admitted quite candidly that he did not quite know what to make of this evidence which he described as “strange”. He suggested that the “guns drawn” scenario contributed to the unreasonableness of the search.

[43] Although David Hansen appeared to be honestly relating the events as he had perceived them, and even if I accepted that one officer, perhaps two, had drawn their weapons, I nonetheless would not deem the arrest and the incidental search to have been unreasonable. It is possible that David Hansen is mistaken about having seen weapons, and by his own evidence he was only on the scene for a very short time. He was whisked away very quickly once he exited the Sunfire. It appears that he did not deem the police actions on the arrest as unjustified.

Conclusion

[44] The application is dismissed.

The Honourable Madam Justice Louise L. Gauthier

Released: October 31, 2016

CITATION: R. v. Hansen, 2016 ONSC 6789

COURT FILE NO.: CR-16-17

DATE: 2016-10-31

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Michael Hansen

Accused/Applicant

RULING ON CHARTER APPLICATION

Gauthier, J.

Released: October 31, 2016