CITATION: Her Majesty the Queen v. Nuttall, 2016 ONSC 7730
COURT FILE NO.: CR-16-011-0000
DATE: 20161207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Ms. Elizabeth Barefoot, for the Federal Crown
- and -
Druin Nuttall
Mr. Douglas Grace, for the Accused
Accused
HEARD: December 5, 6, & 7, 2016
REASONS FOR DECISION ON DEFENCE CHARTER APPLICATION
Conlan J.
I. Introduction
The Issues
[1] Was Mr. Druin Nuttall the subject of an arbitrary arrest and/or unreasonable search at the hands of the police? If so, what should be done about it?
[2] Those are the issues to be decided.
The Charges
[3] The accused is charged with possession of cocaine for the purpose of trafficking. The formal charge reads:
Druin Nuttall stands charged that, on or about the 15th day of October, 2015 at the City of Owen Sound in the Judicial Region of Central West, did possess a substance included in Schedule I to wit: cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.
[4] Although not strictly necessary for purposes of the within decision on the Defence Charter Application, I set out here the essential elements of that offence, each of which the Crown must prove beyond a reasonable doubt:
i. that Mr. Nuttall was in possession of a substance;
ii. that the substance was cocaine;
iii. that he knew that the substance was cocaine; and
iv. that he had possession of cocaine for the purpose of trafficking in it.
[5] Mr. Nuttall is also charged with two counts of simple possession of two different controlled substances. The formal charges read:
AND FURTHER THAT Druin Nuttall stands charged that, on or about the 16th day of October 2015 at the City of Owen Sound in the Judicial Region of Central West, did possess a substance included in Schedule 1 to wit; methamphetamine contrary to section 4(1) of the Controlled Drugs and Substances Act.
AND FURTHER THAT Druin Nuttall stands charged that, on or about the 16th day of October 2015 at the City of Owen Sound in the Judicial Region of Central West, did possess a substance included in Schedule 1 to wit; codeine contrary to section 4(1) of the Controlled Drugs and Substances Act.
[6] As to the merits of those offences, the Crown must prove each of these essential elements beyond a reasonable doubt:
i. that Mr. Nuttall was in possession of a substance;
ii. that the substance was methamphetamine (count 2) or codeine (count 3); and
iii. that he knew that the substance was methamphetamine/codeine.
An Overview of the Facts
[7] In the evening on October 15, 2015, after a few months of police investigation which included a tracking warrant on his car, Mr. Nuttall was stopped by the police when driving northbound on Highway 10, Grey County (just north of the village of Markdale). He was the only occupant of the car, which vehicle was owned by someone else.
[8] He was arrested, without a warrant, for possession of cocaine for the purpose of trafficking.
[9] That was the plan of the police before the vehicle was stopped. The authorities believed that Mr. Nuttall was picking up cocaine in the Toronto area and transporting it to Owen Sound for the purpose of trafficking in it.
[10] Some time that morning of the 15th of October, the officer-in-charge of the investigation had concluded that there were reasonable and probable grounds to arrest Mr. Nuttall for possession of cocaine for the purpose of trafficking.
[11] The police investigation had included multiple components: the tracking warrant, confidential human source information provided to two police services, a Crime Stoppers tip, police surveillance, and records searches for things like police reports, as an example.
[12] After the arrest at the roadside, Mr. Nuttall was then searched by the police, without a warrant, and found to be in possession of, among other things, $440.00 in cash (22 $20.00 bills) and three cellular telephones.
[13] His car was also searched by the police, without a warrant. Inside a backpack was found 29.4 grams of cocaine, among other things.
[14] The police then obtained a warrant to search the accused’s residence, which he shared with others. They seized some items with cocaine residue on them, other things believed to be indicative of drug trafficking (like a digital scale, for example), and 500 millilitres of liquid codeine.
[15] The police also searched, under warrant, the electronic devices that had been seized at the roadside.
The Application
[16] The Defence has brought a Charter Application. The onus is on Mr. Nuttall to prove, on a balance of probabilities, a violation. As to whether any evidence ought to be excluded under subsection 24(2), that burden of proof rests on the Applicant as well, again on balance.
[17] The Notice of Application originally sought, alternatively, a stay of proceedings, however, that was abandoned in oral submissions by Mr. Grace.
[18] It is alleged, in short, that the arrest was unlawful, the searches at the roadside were unreasonable, and the subsequent searches of the residence and the electronic devices were tainted by the earlier Charter-infringing police conduct.
[19] I set out here the relevant sections of the Charter – section 8, section 9, and subsection 24(2).
Everyone has the right to be secure against unreasonable search or seizure.
Everyone has the right not to be arbitrarily detained or imprisoned.
(2) Where, in proceedings under subsection (1), 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.
[20] One final word pertaining to the legal burdens in this case - warrantless searches are presumptively unreasonable. The onus shifts to the Crown to justify them, on balance.
The Evidence on the Application
[21] I heard testimony from the following Ontario Provincial Police officers: Jeffrey Armstrong (a surveillance officer), Mark Johnston (the team’s supervisor), Jeff Dudley (an assisting officer), Mark Thompson (the arresting officer), and Steve Whitehouse (the officer-in-charge of the investigation and the affiant of the search warrant application for the residence).
[22] I pause here to note that I have also heard evidence from another police officer, Kowalsky, but that dealt with continuity of the exhibits and had nothing to do with the Application itself.
[23] The Defence called no evidence on the Application.
II. Analysis
The Arrest
[24] Possession of cocaine for the purpose of trafficking is an indictable offence.
[25] Here, the police had the authority to arrest Mr. Nuttall for that offence without a warrant, provided that this Court is satisfied that Thompson, the arresting officer, had reasonable grounds to believe that Mr. Nuttall had committed or was about to commit that offence – subsection 495(1)(a) of the Criminal Code.
[26] There is both a subjective and an objective component to the meaning of “reasonable grounds” in the legislation. R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241.
[27] A prima facie case for conviction is not required. What is required, however, is more than a mere hunch or intuition or experience. R. v. Proulx (1993), 1993 3677 (QC CA), 81 C.C.C. (3d) 48 (Que. C.A.).
[28] I accept Thompson’s evidence that he believed that he had reasonable and probable grounds to arrest Mr. Nuttall for possession of cocaine for the purpose of trafficking. The Defence takes no issue with the subjective component of the test.
[29] On the totality of the circumstances, I find that the arrest of Mr. Nuttall without a warrant was objectively justifiable. In the result, I find that the arrest was not an arbitrary one; there was no violation of Mr. Nuttall’s section 9 Charter right.
[30] Two things combine to provide those objectively assessed reasonable and probable grounds: (i) the confidential human source information received by Thompson on October 14 and 15, 2015, just prior to the arrest, and (ii) the surveillance of the accused driving the Honda Civic northbound on Highway 10 before the arrest, coupled with prior tracking warrant data that showed Mr. Nuttall making frequent trips to and from Toronto.
[31] The Defence takes no issue with the strength of either of those things but submits, essentially, that the arrest of Mr. Nuttall at the roadside was precipitated by a faux “traffic stop”, and further, that the police had plenty of time to obtain an arrest warrant.
[32] I disagree that the stop of the car was in any way unlawful. It was simply a mechanism to effect the arrest of Mr. Nuttall.
[33] I agree with Mr. Grace that the police had more than ample time to obtain an arrest warrant, and I agree further with the implication that it may be more comforting to the average citizen, generally, to have judicial oversight of arrests, however, a warrant was clearly not statutorily required in this case.
The Searches
[34] It is conceded by the Crown, and this Court finds, that the accused had a reasonable expectation of privacy in the Honda Civic.
[35] I conclude that the Crown has met its burden to justify the warrantless search of Mr. Nuttall’s car at the roadside.
[36] That search was a lawful one that was effected incidental to the arrest.
[37] A valid search incidental to arrest does not depend on reasonable and probable grounds, however, there must be some reasonable basis for doing what the police did. The search must not only be conducted in a reasonable manner but also be aimed at achieving some valid purpose connected to the arrest. The officer’s belief is relevant but not determinative in that there is an objective component to the assessment of whether the search was for a valid purpose stemming from the arrest. R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at paragraphs 21, 22 and 27.
[38] The police here had a reasonable basis to believe that there was cocaine in the car, and their search of the motor vehicle and its contents, including the backpack, was for a legitimate purpose, namely, to secure evidence (the cocaine).
[39] Again, the Defence focusses on the fact that the police had plenty of time to obtain a warrant to search the vehicle. I agree. I also concur with Mr. Grace that there were no exigent circumstances.
[40] The law is clear, however, that the police power to lawfully conduct a search incidental to arrest does not depend on a finding that the authorities could not have applied for and obtained a warrant for the search. The two are simply not connected in that way. R. v. Munro, 2005 BCCA 610, at paragraph 12.
[41] Again, it may be more comforting for the citizenry to have police searches of private places, including motor vehicles, conducted only with judicial approval except in cases of true urgency, however, that is not the current state of the law in Canada.
[42] I find no violation of Mr. Nuttall’s section 8 Charter right. The search of the car was not unreasonable.
[43] As the lawfulness of the subsequent searches of the electronic devices and the residence depend solely on the constitutionality of what occurred at the roadside, it follows that the latter searches were also not unreasonable.
The Remedy
[44] If I am wrong on the above conclusions, and if the arrest is found to have been arbitrary and/or the search of the motor vehicle unreasonable, the prosecution concedes that the evidence seized at the roadside and from the cellular telephones and the residence ought to be excluded under subsection 24(2) of the Charter. Thus, I need not address that issue.
III. Conclusion
[45] For these reasons, notwithstanding Mr. Grace’s able submissions, the Charter Application is dismissed.
Conlan J.
Released: December 7, 2016
CITATION: Her Majesty the Queen v. Nuttall, 2016 ONSC 7730
COURT FILE NO.: CR-16-011-0000
DATE: 20161207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Druin Nuttall
Accused
REASONS FOR DECISION ON DEFENCE CHARTER APPLICATION
Conlan J.
Released: December 7, 2016