CITATION: R. v. Lewis, 2016 ONSC 7936
COURT FILE NO.: CR 694/14
DATE: 20161216
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
D. Weinstock, for the Crown
- and -
JAMAL LEWIS
D. Holt, for the Defence
HEARD: November 15, 16 and 17, 2016
RULING ON PRETRIAL MOTION TO EXCLUDE EVIDENCE UNDER SECTIONS 8, 9 AND 24(2) OF THE CHARTER
André J.
[1] Mr. Lewis brings an application to exclude evidence, which he alleges was obtained following a violation of his ss. 8 and 9 Charter rights. Specifically, he asserts that Cst. Sean Osborne, who investigated a vehicle in which he was a passenger, for an alleged traffic infraction, had no legal grounds to detain him for investigative reasons, let alone to search him. He submits that the officer’s disregard for his rights justify exclusion of any evidence obtained as a result of the officer’s actions.
SUMMARY OF THE EVIDENCE
Evidence Called by The Crown
[2] Cst. Sean Osborne, a member of the Peel Regional Police Force (“PRPF”) since September 2003, was working in the PRPF’s Strategic Tactical Enforcement Program (“STEP”) on May 24 and 31, 2013. He had earlier received information from a confidential informant (“CI”) that a black male was dealing crack cocaine and marijuana in a grey Mitsubishi. The CI provided the vehicle’s licence number. Thereupon, Cst. Osborne did a check of the records of the Ontario Ministry of Transportation and found out that the owner of the vehicle was Mr. Lewis’ mother. The officer produced photographs from the PRPF’s records of Mr. Lewis and showed them to the CI who confirmed the identity of the drug dealer. The officer also found out that Mr. Lewis was on probation for drug trafficking and that a charge of possession of a firearm had been withdrawn against him.
[3] On May 24, 2013, Cst. Osborne and Cst. Brady McEachern conducted surveillance in the area of Mr. Lewis’s residence at approximately 7:30 p.m.
[4] At approximately 11:00 p.m., a Ford Explorer attended Mr. Lewis’ residence. Two occupants exited the vehicle and entered the residence. They left the residence about three minutes later. The officer did not see what had transpired inside the residence. He nevertheless formed the belief, based on the information he had received about Mr. Lewis, that a drug transaction had taken place. Cst. Osborne radioed for the Ford Explorer and its occupants to be stopped and investigated. He later received information that the vehicle had been stopped and that two grams of marijuana had been found on one of its occupants. The arresting officers advised Cst. Osborne that the two occupants of the Explorer had seen Mr. Lewis at his mother’s home.
[5] Both of the vehicle’s occupants later testified that two police officers stopped their vehicle and ordered them to exit. They were not given a reason why their vehicle had been stopped. A police officer handcuffed the male driver, Mr. Gillis, and seated him in the police car. An officer searched him and discovered about one gram of marijuana in a pants pocket. The passenger, Ms. Brittany Edison, testified that she had gone to Mr. Lewis’ home to visit her sister, who was Mr. Lewis’ mother. Both Ms. Edison and her boyfriend, Mr. Gillis, testified that they had not seen Mr. Lewis during their 15 to 20 minute stay at the home.
[6] Cst. Osborne and Cst. McEachern continued investigating Mr. Lewis on May 31, 2013. At approximately 9:00 p.m., Cst. Osborne saw Mr. Lewis exit his home and enter the grey Mitsubishi, which was being driven by a young black female. The vehicle proceeded through an intersection without stopping at a stop sign. Thereupon, the officers decided to stop the vehicle for the traffic infraction.
[7] The grey Mitsubishi stopped a few minutes later. As both officers approached it on foot, they saw “white smoke” “billowing”, in the words of Cst. McEachern, from the vehicle. They later smelt burnt marijuana within it.
[8] Cst. Osborne approached the front passenger side. Mr. Lewis appeared nervous and did not make eye contact with the officer. Cst. Osborne ordered Mr. Lewis to exit the vehicle. He did so because he had formed a suspicion that its occupants were in possession of a narcotic. The driver’s eyes appeared to be red, which Cst. Osborne believed was consistent with the use of marijuana.
[9] Cst. Osborne then proceeded to do a “pat down” search of Mr. Lewis for safety reasons. The officer had these concerns because the previous year the Toronto Police Service had recovered a firearm in Mr. Lewis’ possession.
[10] Cst. Osborne felt a bulge in Mr. Lewis’ pants. He believed it to be crack cocaine. He then arrested Mr. Lewis for possession of a controlled substance. He walked Mr. Lewis to his cruiser while holding onto the bulge which was still in Mr. Lewis’ pants. He tried to force the bulge up Mr. Lewis’ pants. He then put his hand under Mr. Lewis’ pants and underwear and retrieved the bag, which later tested positive for crack cocaine. Once he saw the amount of the drug he advised Mr. Lewis that he would be charged with possession of a controlled substance for the purpose of trafficking.
[11] The female driver was given a traffic ticket and sent on her way.
Evidence Called by The Defence
[12] Both Ms. Edison and Mr. Gillis testified that on May 24, 2013, they stayed at Mr. Lewis’ residence for approximately 15 to 20 minutes and that they did not have any contact with Mr. Lewis during their visit. Mr. Gillis also testified that the officers searched him and his car while he was detained in the police van. He was later subjected to a breathalyzer test, which he passed. The police officers never asked him about Mr. Lewis or whether he had purchased drugs from Mr. Lewis.
CROWN’S POSITION
[13] The Crown submits that Cst. Osborne had adequate legal grounds to stop Mr. Lewis’ vehicle, detain him and then conduct a search of Mr. Lewis incidental to his detention. He submits that upon approaching Mr. Lewis’ vehicle on May 31, 2013, the officers formed a reasonable suspicion that its occupants were in possession of a controlled substance and that, on subjective and objective grounds, had the legal authority to detain the vehicle’s occupants. Furthermore that, given the information Cst. Osborne had previously received about a firearm recovered in Mr. Lewis’ possession, the officer was entirely justified in conducting a pat down search of Mr. Lewis.
APPLICANT’S POSITION
[14] Mr. Lewis’ counsel submits that the officers were not credible witnesses and that their evidence should be rejected. He contends that the stopping of the vehicle was for the express purpose of searching for drugs and the officer’s testimony about a traffic infraction is not credible. The officers had nothing but a hunch when they stopped the vehicle and detained Mr. Lewis.
[15] The evidence about having seen smoke emanating from the vehicle is unworthy of belief. Cst. Osborne had no legal authority for searching Mr. Lewis for weapons given that he had no basis for believing that Mr. Lewis had any weapons in his possession on May 31, 2013. Not only did Cst. Osborne violate Mr. Lewis’ constitutionally protected rights, he also violated the rights of Ms. Edison and Mr. Gillis on May 24, 2013. The officers’ cavalier disregard of the Charter should not be countenanced by the Court and, concomitantly, the crack cocaine which Cst. Osborne extricated from Mr. Lewis should be held to be inadmissible.
ANALYSIS
Investigative Detentions
[16] There is no dispute about the applicable principles regarding investigative detentions and the search of a detainee incidental to an investigative detention.
[17] First, to determine whether an officer’s interference with a detainee’s liberty or property comes within his or her common law powers, a court must determine the answers to the following questions:
(1) Does the police conduct in question fall within the general scope of any duty imposed on the officer by statute or common law?
(2) If so, did the execution of the police conduct in question involve a justifiable use of the powers associated with the engaged statutory or common law duty?
See R. v. Peterkin, 2015 ONCA 8, 319 C.C.C. (3d) 191, at para. 38; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 24-26; R. v. Waterfield, [1964] 1 Q.B. 164 (English C.A.), at pp. 170-171.
[18] Second, police officers possess, in appropriate circumstances, a limited power to detain a person for investigative purposes: see Peterkin, at para. 39; Mann, at paras. 23-24.
[19] Third, the test for determining whether an investigative detention is justifiable is one of reasonable suspicion. An investigative detention must be viewed as reasonably necessary on an objective view of all the circumstances informing the officer’s suspicion, that there is a clear nexus between the prospective detainee and a recent or ongoing criminal offence: see Peterkin, at para. 40; Mann, at para. 34.
[20] Fourth, the reasonableness of a detention will be determined by a number of factors including:
(1) The extent to which the interference with individual liberty is necessary to perform the officer’s duty;
(2) The liberty that is the subject of the interference; and
(3) The nature and extent of the interference.
[21] Fifth, to be justifiable, the detention must be executed in a reasonable manner, brief and must not oblige the detainee to answer questions by the detaining officer: see Peterkin, at para. 41; Mann, at para. 45.
Searches Incidental To Investigative Detentions
[22] Safety searches incidental to investigative detentions are justified where the officer believes on reasonable grounds that his or her own safety, or the others, is at risk: see Mann, at para. 40. Such searches cannot be conflated with the power to conduct a search incident to lawful arrest: see Mann, at para. 45. A search incidental to an investigative detention must be grounded in objectively discernible facts to prevent fishing expeditions. Such searches must not become a proxy for racially discriminating conduct: see Mann, at para. 34.
[23] A search incidental to an investigative detention is justifiable if the officer believes on reasonable grounds that his or her safety, or that of others, is at risk: R. v. Clayton, 2007 SCC 32, 220 C.C.C. (3d) 449, at paras. 29, 104.
Credibility
[24] The Crown’s case is based on the testimony of Cst. Osborne and Cst. McEachern. I will assess the officers’ credibility in the following critical areas of their evidence as it relates to their actions on May 31, 2013:
(1) The traffic infraction.
(2) The billowing smoke.
(3) The search of Mr. Lewis.
The Traffic Infraction
[25] The officers testified that they decided to stop the grey Mitsubishi, not to search it for drugs, but because it had proceeded through a red stop sign without stopping.
[26] I have concerns about this evidence for the following reasons.
[27] There is an irreconcilable conflict in the officers’ testimony on their observations of the vehicle. Cst. Osborne testified that they were following the vehicle when they observed it go through the intersection without stopping. Cst. McEachern, on the other hand, testified that the vehicle was behind their police vehicle when it proceeded through the intersection and that he saw the infraction while looking at his rear view mirror.
[28] Second, I find it incredulous that the officers, who were conducting surveillance of the grey Mitsubishi to obtain evidence of illegal drug activity, would essentially jettison their investigation simply because they had observed a minor traffic infraction. It makes no senses that Cst. Osborne, who had already invested a great deal of time and effort on May 24 and 31, 2013, in investigating Mr. Lewis, would jeopardize his investigation to ensure that the driver of the car in which Mr. Lewis was the passenger receive a traffic ticket for failing to stop at an intersection.
[29] Third, I accept the evidence of Liosha Stevens, the driver of the car, and Mr. Lewis, that they stopped at the intersection. I do so given that both testified that they were very familiar with the area because it is regularly patrolled by the PRPF. As a result, Ms. Stevens would have made it her business to stop at the stop sign. Neither she nor Mr. Lewis was shaken in cross-examination that the vehicle had stopped at the stop sign.
[30] Furthermore, Cst. Osborne testified that they eventually stopped the vehicle approximately 2 kilometres from the stop sign. Asked why it took so long to stop the vehicle, he replied that they probably had to travel that distance to catch up to it.
[31] If Cst. McEachern’s version of events is correct, the vehicle would have passed the officer’s vehicle before being stopped. To that extent, they could have stopped it much earlier than they did. Cst. Osborne’s version is more problematic because, as Mr. Lewis and Ms. Stevens testified, there were three side streets after the stop sign at which they were stopped. In other words, the police would have had ample opportunity to have stopped their vehicle had they failed to stop at the stop sign.
[32] For the above reasons, I therefore find as a fact that the vehicle in which Mr. Lewis was travelling, stopped at the stop sign before the officers investigated the vehicle.
Billowing Smoke
[33] Both officers testified that they observed smoke coming from Mr. Lewis’ vehicle as they walked towards it. They determined that the smoke resulted from freshly burnt marijuana. Cst. Osborne testified that seeing and smelling burnt marijuana, combined with Mr. Lewis’ criminal record and the information received from the CI, gave him the grounds for detaining Mr. Lewis.
[34] Significantly, however, neither officer found any trace of marijuana either in the vehicle or on Mr. Lewis and Ms. Stevens. Cst. Osborne testified that he looked at Mr. Lewis’ seat and the floor beneath it yet saw no trace of marijuana. He searched the car and found none. He did not see any lighter, match, marijuana residue or any telltale signs that the car’s occupants had been smoking the drug or anything else. He did not see, upon approaching the car, anything being thrown from it. A female officer searched Ms. Stevens but did not find any drugs on her. The source of this billowing smoke appears to be a complete mystery.
[35] Spontaneous combustion aside, I have grave doubts that Mr. Lewis and/or Ms. Stevens had marijuana in their vehicle when the officers investigated them on May 31, 2013. One can speculate that perhaps the searches conducted of the vehicle and its occupants were not sufficiently thorough to discover the presence of marijuana. Perhaps the officers simply missed it. After all, to err is human.
[36] However, Cst. Osborne testified that he searched the vehicle for drugs but found none. He was a 10-year veteran when he investigated Mr. Lewis. He had previously been involved in numerous drug investigations. Drugs do not simply disappear into thin air.
[37] In my view, Cst. Osborne did not have a reasonable suspicion upon which to detain Mr. Lewis. He had no evidence, when he detained Mr. Lewis, which established a nexus between Mr. Lewis and a recent or ongoing criminal offence. To that extent, his detention of Mr. Lewis was unlawful.
Search Incidental to the Investigative Detention
[38] Cst. Osborne denied that he searched Mr. Lewis for drugs rather than for any safety concerns he had at the time. And yet his search of Mr. Lewis was much more intrusive than a pat down search incidental to an investigative detention. The applicant entered boxer briefs similar to that he had worn on May 31, 2014 as an exhibit. The briefs have a small “pocket” at the front which, Mr. Lewis testified, was where he had secreted the crack cocaine discovered by Cst. Osborne.
[39] The officer testified that, up to the point of searching Mr. Lewis, he had not advised Mr. Lewis of the reason for the detention. He had felt the bulge in Mr. Lewis’ pants while he was moving his hand up in the area of Mr. Lewis’ buttocks and had found the drugs at the waistline of Mr. Lewis’ boxers.
[40] Whichever version is correct, the search conducted by Cst. Osborne is more consistent with a search incident to an arrest than one incidental to an investigative detention. In my view, the intrusiveness of the search supports a conclusion that the officer had embarked upon an excursion in search of drugs rather than a less intrusive search for weapons.
[41] The officer’s testimony during the preliminary hearing in this matter supports this conclusion. The officer testified in this application that he did not search Mr. Lewis’ pockets. At the preliminary hearing, however, he testified that he did.
[42] Indeed, Cst. Osborne’s prior inconsistent statements seriously undermine his credibility about what happened on May 24 and 31, 2013.
[43] For example, he testified at the preliminary hearing that he had “observed a transaction” on May 18, 2013. He testified in this application that he meant May 24, 2013. That may have been the case. However, he did not observe a drug transaction involving Mr. Lewis on either date.
[44] Second, Cst. Osborne testified at the preliminary hearing that the two persons who were arrested on May 24, 2013 after leaving Mr. Lewis’ house had admitted that they had purchased marijuana from Mr. Lewis. He testified in this application that he was told that the two persons had “dealt with Jamal [Mr. Lewis]”. He admitted under cross-examination that neither Ms. Edison nor Mr. Gillis told the arresting officers that they had purchased drugs from Mr. Lewis.
[45] For the above reasons, I find as a fact that Cst. Osborne searched Mr. Lewis on May 31, 2013, for drugs rather than for safety reasons. He had no reason to believe or suspect that Mr. Lewis was carrying a weapon. The intrusiveness of the search is more consistent with a search incidental to an arrest than one which was incidental to an investigative detention. Accordingly, I find that Cst. Osborne violated Mr. Lewis’ right against unreasonable search and seizure pursuant to s. 8 of the Charter.
Section 24(2) of the Charter
[46] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada set out the following factors which must be assessed in determining whether illegally obtained evidence is admissible in a trial:
(1) The seriousness of the Charter-infringing State conduct.
(2) The impact on the Charter-protected interests of the accused; and
(3) Society’s interest in an adjudication on the merits.
Seriousness of the Charter-Infringing State Conduct
[47] The breach of Mr. Lewis’ Charter rights are quite serious. There was no justification for the stopping of his vehicle nor the search of his person. The search was very intrusive in that it involved Cst. Osborne placing his hand inside Mr. Lewis’ trousers and boxer shorts to recover the drug which Mr. Lewis had on his person. This occurred on a busy thoroughfare in this city.
[48] Furthermore, this breach cannot be viewed in isolation of what transpired on May 24, 2013. Cst. Osborne gave instructions to other police officers to stop a vehicle which he had seen visit Mr. Lewis’ residence. He concluded that the behaviour of the vehicle’s occupants had the hallmarks of a drug transaction, despite the fact that he did not see any interaction between the two and the occupants of the dwelling. While there is a low evidentiary threshold for the formulation of a reasonable suspicion, the officer, at the highest, merely had a hunch that a drug transaction had taken place.
[49] This was a residence, not a drug den or “crack house” where persons met for the purpose of using or selling drugs. As a result of the decision to stop the vehicle, Mr. Gillis’ rights against arbitrary detention and unreasonable search and seizure were violated.
Impact on the Charter-Protected Interests of the Accused
[50] But for the violation of Mr. Lewis’ ss. 8 and 9 Charter rights, the drugs in his possession would not have been discovered. The search of his pants and boxer shorts was very intrusive, the more so since it took place on the side of a busy street in a residential area. Mr. Lewis had an expectation of privacy in the vehicle he was travelling in, despite the fact that his girlfriend was the driver. Following his arrest, he was also handcuffed, placed in a police vehicle and taken to a police division where he was held overnight, pending a bail hearing.
[51] For the above reasons, I conclude that the breach of Mr. Lewis’ constitutionally protected rights had a significant impact on him.
Society’s Interest in an Adjudication on the Merits
[52] Will the truth seeking function of the criminal trial process be better served by admission of the evidence or by its exclusion?
[53] In my view, exclusion of the evidence enhances rather than diminishes the truth seeking function of the criminal process in this case. Admission of the evidence will adversely impact the reputation of the administration of justice in that it will send a message that a clear disregard of a citizen’s constitutionally protected rights will not warrant so much as a passing glance by the courts. It would send the message that the ends justify the means and that the legitimate societal interest in the investigation of the purchase and sale of illicit drugs essentially justifies the evisceration of a citizen’s constitutionally protected rights. That, I am afraid, is the formula for the establishment of a police state.
[54] I must also consider the significance of the evidence to the prosecution and the seriousness of the offence. Without doubt, the evidence is important to the Crown’s case. Furthermore, the offence of possession of a controlled substance for the purpose of trafficking is very serious, given the addictiveness of crack cocaine. In some cases, this important consideration will trump the other factors and will mitigate against the exclusion of illegally obtained evidence.
[55] That conclusion however, is not appropriate in this case, given the seriousness of the Charter breaches and their impact on Mr. Lewis’ Charter-protected interests.
DECISION
[56] For the above reasons, the application is granted and the evidence is excluded.
André J.
Released: December 16, 2016
CITATION: R. v. Lewis, 2016 ONSC 7936
COURT FILE NO.: CR 694/14
DATE: 20161216
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JAMAL LEWIS
RULING ON PRETRIAL MOTION TO EXCLUDE EVIDENCE UNDER SECTIONS 8, 9 AND 24(2) OF THE CHARTER
André J.
Released: December 16, 2016