CITATION: R. v. Nguyen, 2016 ONSC 8048
COURT FILE NO.: CR-16-10000741-0000
DATE: 20161222
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
KEVIN HAI NGUYEN
Appellant
Brigid McCallum, for the Respondent
Peter Bawden, for the Appellant
HEARD: December 5, 6, 7, 8 and 9, 2016
r.f. goldstein j.
REASONS FOR JUDGEMENT on s. 8 application
[1] On April 4, 2015, in the early morning hours, Constables Bell and McIsaac answered a noise complaint at 135 Tyndall Avenue in Toronto. The building was well known to the police for having problems with drugs and unwanted individuals loitering in the building.
[2] After dealing with the noise complaint and doing a “wellness check” on a tenant, the officers were going down a stairwell. It was just after 4 a.m. They came across Kevin Nguyen, the accused, and a young woman named Nyma Dolma. They arrested Mr. Nguyen and investigated Ms. Dolma. Ms. Dolma had a pink plastic bag in her possession. It had a Beretta handgun with a laser site and a silencer in it. Mr. Nguyen and Ms. Dolma were charged with offences related to the possession of the gun. The charges against Ms. Dolma were later withdrawn.
[3] The Crown alleges that the gun belonged to Mr. Nguyen but that he did not have a reasonable expectation of privacy in the bag. Mr. Nguyen says that he did and that the police searched the bag without grounds. He says that the police breached his Charter rights. He applies to have the gun excluded from evidence.
[4] On December 12, 2016 I granted Mr. Nguyen’s Charter application. The Crown called no further evidence and the charges were dismissed. I indicated at the time that my reasons would follow.
[5] These are my reasons. I find that Mr. Nguyen’s s. 8 rights were breached. The police searched the bag without reasonable grounds or reasonable suspicion. More significantly, I find that the officers were not forthright with the Court about what occurred in the stairwell. The officers, in essence, acted on a hunch – which, in itself is not necessarily a bad thing. Unfortunately, they then engaged in a misguided attempt to justify the search and were not candid with the court about it – and that is a bad thing. The unfortunate result is that the seized gun is excluded from evidence.
BACKGROUND:
[6] On the night of April 3-4, 2015, Mr. Nguyen was visiting Ms. Dolma at 135 Tyndal Avenue. She lived in apartment 503. It was a bachelor apartment that she shared with her sister. She was 18 years old and worked full-time at McDonald’s. Mr. Nguyen came over that night to hang out and watch a movie. He came over at about 3:10 or 3:20 am. He had a white plastic bag with some school papers in it. Ms. Dolma had a jacket that she had bought for him and she wanted to give it to him. He tried it on and liked it.
[7] There were two beds in the apartment. Mr. Nguyen had left his own jacket on one of the beds. Ms. Dolma saw a gun. She was angry that he had brought a gun to her apartment. She did not remember what he did with the gun. Ms. Dolma’s sister came home after about 40 or 50 minutes and Mr. Nguyen decided that he wanted to leave. Ms. Dolma then put the jacket she had bought for him in a pink plastic bag. They left the apartment together. She testified that he was carrying the pink plastic bag as well as the white plastic bag that he had brought earlier.
[8] Constable Bell and Constable McIsaac were part of the 14 Division Primary Response Unit that night. Constable Bell was very familiar with 135 Tyndale from his time in 14 Division. Constable McIsaac knew the building, although not as well as Constable Bell. The building was an object of interest to the police due to violence, vagrancy, and drug activity. Both officers testified that there is a lot of drug activity in the stairwells and common areas.
[9] The officers testified that they came across Mr. Nguyen and Ms. Dolma in the stairwell. They both testified that they observed Mr. Nguyen hand the pink plastic bag to Ms. Dolma. In contrast, Ms. Dolma testified that the pink bag was on a stair and that she picked it up to make room when she heard the footsteps of people descending the stairs. Both Ms. Dolma and Constable McIsaac testified that Ms. Dolma gave the officer the bag. Constable McIsaac found a handgun in the bag.
ANALYSIS:
[10] Mr. Bawden, on behalf of Mr. Nguyen, argues that the police did not observe anything that would give rise to a reasonable suspicion of criminal activity. Accordingly, the police had no authority to detain Mr. Nguyen and Ms. Dolma. Since they had no authority to detain, they had no authority to look in the pink bag. The police are not credible when they say that they observed what appeared to be a drug deal between Ms. Dolma and Mr. Nguyen.
[11] The Crown counters that Mr. Nguyen abandoned any privacy interest in the pink bag when he passed it to Ms. Dolma. That was an act of abandonment. If there was a privacy interest in the bag, then the police had a reasonable suspicion of a crime (drug trafficking) and therefore authority to detain. That would have given them authority to look in the pink bag for the purposes of officer safety.
[12] The issues, then, are as follows:
(a) Did Mr. Nguyen have a reasonable expectation of privacy in the pink plastic bag?
(b) Did the police have grounds to arrest or detain Mr. Nguyen? and
(c) Should the evidence be excluded?
[13] I turn to the first issue.
(a) Did Mr. Nguyen have a reasonable expectation of privacy in the pink plastic bag?
[14] Crown counsel, Ms. McCallum, argued that the police observed Mr. Nguyen giving the pink bag containing the gun and the jacket to Ms. Dolma. She argues that in doing so, Mr. Nguyen gave up any rights to privacy in the bag. Accordingly, he has no standing to contest the search of the pink plastic bag.
[15] I respectfully disagree. A person may establish standing based on his or her own evidence or the surrounding circumstances: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128. In many cases an expectation of privacy is obvious – for example, where one’s home is searched. In other cases it is less obvious. In those cases the accused person may be required to call evidence to establish an expectation of privacy. The accused person himself or herself may not need to actually testify. That is because a reasonable expectation of privacy is determined on the totality of the circumstances: R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341 at para. 22.
[16] The Edwards factors suggest that Mr. Nguyen retained a reasonable expectation of privacy in the bag. The bag contained a jacket that belonged to Mr. Nguyen. The jacket was a present from Ms. Dolma to Mr. Nguyen. Ms. Dolma’s evidence was that he liked the jacket and was taking it with him. As Finlayson J.A. observed in R. v. Pugliese (1992), 1992 CanLII 2781 (ON CA), 8 O.R. (3d) 259 (C.A.), while property rights in and of themselves do not confer standing, they may do so in a given case. In other words, property rights, while not determinative, are also not irrelevant. The bag contained his property and he intended (on Ms. Dolma’s evidence) to keep it.
[17] I note that in his videotaped statement, Mr. Nguyen consistently denied that he had possession of the gun. He claimed possession of the white bag with the papers. He was never asked about the jacket in the pink bag. He said he did not know how the gun got into the pink bag. Leaving aside the question of his obviously problematic credibility, Mr. Nguyen neither claimed the pink bag nor disavowed it. That issue was not put to him.
[18] Crown counsel places a great deal of emphasis on the notion that Mr. Nguyen handed off the pink bag to Ms. Dolma as the police approached. This, she argues, constitutes abandonment of any privacy interest in the pink bag. She relies on R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, where a homeowner was found to have abandoned any privacy interest in garbage that he put out for collection.
[19] As I will analyze in detail in the next section of these reasons, I find as a fact that the police officers did not observe Mr. Nguyen hand the bag to Ms. Dolma. That is because I cannot accept the version of events told by Constable Bell and Constable McIsaac with regard to the pink bag. There was, therefore, no act of abandonment.
[20] Even if Mr. Nguyen did hand the bag over to Ms. Dolma, momentarily handing over a bag containing a piece of personal property to a friend does not in and of itself constitute abandonment. It may well be a simple request to hold a bag while the owner did something else. Abandonment is a question of fact. In my respectful view, Mr. Nguyen did not act in relation to the pink bag in such a manner as to lead a reasonable and independent observer to conclude that his assertion of a privacy interest was unreasonable in the circumstances: Patrick at para. 25.
[21] I accept that Mr. Nguyen did not have physical possession of the pink bag. It was on a stair. His explanation was that he put it there so he could give Ms. Dolma a hug. Ms. Dolma testified that she moved it. I find as a fact that is what actually happened. There was, therefore, no act of abandonment. This is not a case like R. v. Nesbeth, 2008 ONCA 579. In that case, the police were patrolling the stairwell of a building known for drug use, crime, and violence. They came across the accused. He was carrying a knapsack. One of the officers said “hey buddy what are you doing?” to which Nesbeth responded: “oh shit” and ran off. The police chased him. He threw the knapsack away. The Court of Appeal, overturning the trial judge, found that he abandoned the jacket. That action suggested that he had no further expectation of maintaining a privacy interest. On Ms. Dolma’s evidence, which I accept, she merely moved the bag to make room for whoever was walking down the stairs. That is obviously very different from running away from the police and tossing the bag away during a chase.
[22] This is also not a case like Belnavis. Belnavis was driving a car. The car was borrowed from a friend. Lawrence was a passenger. The car was full of garbage bags with stolen property. Lawrence’s connection to the car was tenuous. She denied any interest in the bags. She had no right to control access to the car or even be in the car except as a passenger. In my respectful view that is very different from Mr. Nguyen’s relationship to the bag.
[23] I therefore find that Mr. Nguyen retained a reasonable expectation of privacy in the bag. He has standing to make an argument under s. 8 of the Charter.
(b) Did the police have grounds to arrest or detain Mr. Nguyen?
[24] The police had the authority to be in the stairwell and to speak to people that they found there. Whether the police had grounds to detain Mr. Nguyen depends on whether they observed something that would give rise to at least a suspicion of criminal activity. Since the search was warrantless, the burden is on the Crown to show that the search was lawful: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at para. 36.
[25] I find that the police made no observations of criminal activity that would justify an investigative detention. They also had no grounds to make an arrest under the Trespass to Property Act. The Crown did not show that the search was authorized by law. Accordingly, the detention of Mr. Nguyen was unlawful. His rights under s. 8 of the Charter were infringed, as I set out.
Evidence Of The Police Officers
[26] At 4:08 in the morning, Constable Bell and Constable McIsaac, received a radio call to go to the building for a noise complaint. They arrived at 4:13 am. They went to the 8th floor to investigate the complaint. That took only a few minutes. Constable Bell told Constable McIsaac that he wanted to do a “walk-through” through the building.
[27] Constable Bell testified that he wanted to do “wellness checks” after checking the 8th floor. There are vulnerable people in the building, such as drug addicts, who would let drug dealers take over their apartments in exchange for drugs. Sometimes the tenants wanted police assistance to remove the drug dealers. He intended to just ensure that certain tenants were not being taken advantage of. Constable McIsaac was asked whether there was a policing term for this. She said that it was simply called a “door-knock” although she agreed that the term “wellness check” was also a policing term. Constable Bell indicated that drug seizures, weapons seizures, and criminal investigations generally sometimes arose from these wellness checks. Constable McIsaac said that she had not seen that but was aware that it had occurred with other 14 Division officers.
[28] Constable Bell wanted to check an apartment on the 5th floor. That apartment was near the south stairwell of the building. He and Constable McIsaac walked down from the 8th floor. When they got to the 5th floor they entered the hallway. They both noticed a female walking towards the north stairwell. This female was undoubtedly Ms. Dolma.
[29] The officers quickly checked an apartment on the 5th floor. They then crossed to the north stairwell. Constable Bell’s plan was to descend to the 2nd floor. The door leading into the stairwell is a heavy door. If the door closed on its own people in the stairwell would hear it close. According to Constable Bell, they made no effort to be silent as they went down the stairwell. In contrast, Constable McIsaac said that they did.
[30] Constable Bell testified that as they approached the second floor landing he could see the female with the long black hair as well as a male he knew to be Mr. Nguyen. It was about one minute after seeing her in the hallway of the 5th floor. Constable Bell had dealt with Mr. Nguyen before. He knew Mr. Nguyen to be a gang member and a known drug dealer. He also knew that Mr. Nguyen had a recent conviction for possession of an unauthorized firearm.
[31] Constable Bell testified that as they approached the stairwell he could hear mumbling and talking. He saw Mr. Nguyen pass a pink bag to the female. Both of them looked up and appeared to be shocked to see police officers in the stairwell. He testified that given the building, the time of night, and his knowledge of Mr. Nguyen he believed he had seen a drug deal. He ordered Mr. Nguyen to come to him. He put him up against the wall to do a safety search. He started to inform Mr. Nguyen that he was going to detain him for possession for the purpose of trafficking when he heard Constable McIsaac say “there is a gun in here”. She pulled a firearm out of the pink plastic bag. He then arrested Mr. Nguyen for possession of a firearm. He had been on the landing with Mr. Nguyen for only 15 or 20 seconds when Constable McIsaac mentioned the firearm. He searched Mr. Nguyen and found a large quantity of folded up Canadian currency, a condom, a key fob, and two cell phones. Constable Bell made no mention or note of the white shopping bag that Ms. Dolma described. He recalled no other bag. He gave a very specific command to Mr. Nguyen to come to him. He recalled that he passed the bag over to Ms. Dolma using both his hands and that she received it with both hands. He did not recall many other specific details.
[32] In cross-examination, Constable Bell testified that he had previously been a member of the Community Response Unit. That unit engaged in what was referred to as pro-active policing – opening approaching those suspected of criminal activity. The Community Response Unit engaged in “wellness checks”, some of which had resulted in arrests and investigations. He had done his last “wellness check” about 3-4 months previously at 135 Tyndal. After conducting his check on the 5th floor, it was his intention to do a wellness check on someone on the 2nd floor. He did not mention the plan to do a 2nd floor wellness check in his notes. Neither did Constable McIsaac.
[33] Constable McIsaac testified that as they were descending the stairwell from the 5th floor she could hear a male and a female having a conversation on the landing between the 3rd and 4th floor. She observed the male give a pink plastic bag to the female. She said the male and the female saw them coming down the stairs. They both looked shocked. She testified that Constable Bell called Mr. Nguyen, the male, up to him. Constable McIsaac then asked the female, Ms. Dolma, if she resided in the building. She said she did. When Constable McIsaac got close she handed her the pink bag and said: “this is his”. She seemed shocked and her voice seemed panicked. Constable McIsaac could feel that the plastic bag was heavy, about 3-5 pounds. She looked in and could see the butt of a firearm wrapped in a jacked. Her first thought was for officer safety – she wanted to make sure there were no syringes, weapons, or drugs in the bag.
[34] In cross-examination Constable McIsaac testified that her first question to Ms. Dolma was “do you live in the building”. She agreed that it was a preliminary question to a Trespass to Property Act investigation. She also agreed that she had no grounds to believe that Ms. Dolma had committed a criminal offence. She agreed that she and Constable Bell tried to approach Ms. Dolma and Mr. Nguyen quietly. They were deliberately looking over the bannister in order to see what was going on in the stairwell. Constable Bell was behind her when she saw the bag passed from Mr. Nguyen to Ms. Dolma.
Evidence of Ms. Dolma
[35] Ms. Dolma testified that after leaving the apartment she and Mr. Nguyen went into the stairwell. She left to go get his glasses (which he had forgotten in her apartment) and then came back. They were on the fourth floor landing facing upstairs. They were waiting for Mr. Nguyen’s cab to arrive. The two bags were on a stair leading upstairs. She heard footsteps. She believed people were coming down the stairs. She moved the two bags in order to make way for the people coming down. A female officer approached her and asked her what was in the bag. Ms. Dolma answered “his jacket”. She gave the female police officer the bag. The male officer told Mr. Nguyen to go upstairs. She did not know what happened to him. The police found a gun in the pink bag. It was the same gun she had seen in the apartment. Ms. Dolma testified that she did not notice anything strange about the bag.
[36] In cross-examination, Ms. Dolma testified that she did not hear a door close upstairs even though the doors are heavy and can be easily heard when they are closed. She did hear footsteps but did not realize that the people coming down were police. She testified that the first question the female police officer – Constable McIsaac – asked was “what’s in the bag”. She handed over the bag. Ms. Dolma told the officer that Mr. Nguyen’s jacket was in the bag. The officer made a gesture at the bag. Ms. Dolma felt she had no choice but to give the officer the bag although the officer did not immediately as for it. The second question the female police officer asked was: “do you live in the building”. She told the officer that she did.
Analysis
[37] The critical factual question is this: did Mr. Nguyen pass the pink bag to Ms. Dolma? If, as Constable Bell and Constable McIsaac stated, Mr. Nguyen had passed the pink bag to Ms. Dolma and it looked to his experienced eye like a drug deal (especially given the time, place, and parties) then that would have given him grounds to detain Mr. Nguyen, and possibly reasonable grounds to arrest and search. I accept that the bag could have been searched incident to arrest, to preserve evidence: Mann, at para. 37. I also accept that during a legitimate detention the officers may have had the authority to do a safety search: R. v. Peterkin, 2015 ONCA 8.
[38] The problem is that I prefer the evidence of Ms. Dolma. I do not accept that Constable Bell and Constable McIsaac saw the pink bag pass from Mr. Nguyen to Ms. Dolma.
[39] I found Ms. Dolma to be a credible witness. Although she was a Crown witness she contradicted the evidence of the police officers on the issue of the pink plastic bag. I agree with Mr. Bawden’s point that it is highly unlikely that she would have understood the constitutional implications of her testimony. She would have been highly unlikely to understand that picking up the bag from the stairs to make room is very different, constitutionally, from taking the bag from Mr. Nguyen. As experienced police officers, Constable Bell and Constable McIsaac knew that.
[40] Furthermore, Ms. Dolma’s evidence makes sense. She testified that she had gone back to her apartment to retrieve Mr. Nguyen’s glasses and then back to the landing where Mr. Nguyen was waiting. It seems likely that the police officers first saw Ms. Dolma in the hallway as she went back towards the stairwell after retrieving the glasses. The police then did their “wellness check” while she went to into the stairwell. She testified that she and Mr. Nguyen were standing on the landing talking when the police came down the stairs. This seems natural. Ms. Dolma’s sister interrupted them in the apartment and they were apparently looking for some privacy – Ms. Dolma testified that Mr. Nguyen was annoyed and they were discussing the sister’s early arrival in the stairwell. It also makes sense, as Ms. Dolma testified, that the bags were resting on a stair while they were saying goodbye. Mr. Nguyen corroborates this version in his videotaped statement. He says that he dropped the white bag of papers on the floor to give Ms. Dolma a hug when the police arrived.
[41] In contrast, the version of events given by the two officers has some problems. Constable Bell could not recall a white bag although there was a clearly a white bag present. Both Constable McIsaac and Ms. Dolma testified that she had the white bag in one hand. Constable McIsaac said Ms. Dolma had the pink bag in one hand after Mr. Nguyen handed it to her, and the white plastic bag in her other hand. She said that the white bag appeared innocuous and Ms. Dolma kept it in her possession. It appears that she did no direct examination of the white bag as she did with the pink bag. Ms. Dolma’s testimony was unclear about what she did with the white bag. I find it odd that Constable McIsaac would have looked into the pink bag more thoroughly than the white bag. After all, the same officer safety concerns that motivated searching the pink bag would have caused the police officers to search the white bag, and yet she said the white bag “looked innocuous”. Drugs in small amounts (and much drug paraphernalia), unlike a gun, do not take up much space. Given that Mr. Nguyen was (on the evidence of Constable Bell) initially investigated for drug trafficking, I find it surprising that the white bag was not thoroughly searched for drugs. That is another reason leading me to doubt the reliability of Constable McIsaac’s version of events.
[42] Constable Bell’s evidence that he and Constable McIsaac made no effort to be quiet is contradicted on that point both by Constable McIsaac and Ms. Dolma (at least by implication). It makes more sense that they were quiet, especially if Mr. Nguyen and Ms. Dolma were “surprised” or “shocked” to see the officers – although, in fairness, Ms. Dolma could have been aware of the footsteps without knowing that the footsteps belonged to police officers.
[43] Furthermore, I also have some difficulty with the notion that Constable McIsaac’s first question was “do you live in the building” as opposed to “what’s in the bag”. It is uncontested that Ms. Dolma handed over the pink bag (whether voluntarily or at Constable McIsaac’s command). Again, I find Ms. Dolma’s evidence on this point to be more reliable, simply because it makes more sense. If the prime concern was the passing of the bag – indicating a potential drug deal – then it makes sense that that would have been Constable McIsaac’s focus, especially since the initial detention was allegedly for suspicion of a criminal offence rather than suspicion under the Trespass to Property Act.
[44] Ms. Dilma’s version of events is also buttressed by Mr. Nguyen’s videotaped statement. In his statement, Mr. Nguyen indicated more than once that he thought he had been arrested for a Trespass to Property Act violation, not a firearms offence. Constable Bell’s testimony was that he arrested Mr. Nguyen for drug trafficking and was in the midst of telling him that when Constable McIsaac interrupted by mentioning the gun. He denied arresting Mr. Nguyen under the Trespass to Property Act.
[45] I find that Constable Bell did not arrest Mr. Nguyen for drug trafficking. That was his justification after-the-fact. I make this finding notwithstanding Mr. Nguyen’s obvious credibility problems. He has a serious criminal record and it appears that he is a gang member. He had a gun in his possession (I do not accept that it was Ms. Dilma’s gun) as well as a substantial amount of cash. I don’t accept his answer because his evidence is worthy of belief. It is not. I accept his evidence on this point because it makes sense. It makes sense for two reasons:
[46] First, just like Ms. Dolma, Mr. Nguyen was highly unlikely to have understood the constitutional implications of an arrest for drugs versus an arrest under the Trespass to Property Act. He knew there were no drugs involved. In making his denials to the police officers in his videotaped statement he easily could have said “I thought I was arrested for drugs” instead of firearms if, indeed, Constable Bell had arrested him for a drug offence. Instead he mentioned more than once that he was arrested as a trespasser.
• Second, Constable Bell indicated that he was in the building to do “wellness checks”. These checks had not infrequently turned into criminal investigations. Constable Bell justified them, in part, under the Trespass to Property Act. I have no doubt that at 4:20 am, when Constable Bell encountered Mr. Nguyen in a stairwell of a problematic building, knowing his criminal background, he was going to detain him whether he had grounds or not. I find that he purported to arrest Mr. Nguyen under the Trespass to Property Act, not, as he testified because he saw something that looked like a drug transaction.
The Officer’s Notes
[47] Constable Bell was cross-examined on his notes. He indicated that he and Constable McIsaac consulted regarding times that night but otherwise didn’t consult on other things. They both wrote up their notes in the 14 Division Criminal Investigation Bureau, a large open office with desks. He denied that he and Constable McIsaac collaborated on their notes. Even where the similarities were put to him he denied that there was collaboration. Constable McIsaac also testified that she and Constable Bell wrote up their notes separately. She said that where there was a close similarity between the notes it was simply coincidence.
[48] Unfortunately, there is a strong correlation between Constable Bell’s notes and Constable McIsaac’s notes. They denied consulting each other beyond times and locations. The notes bear a similarity that goes beyond times and locations. Their notes use the same words for the critical event: the alleged observation of the passing of the pink plastic bag.
[49] Constable Bell made the following note:
Both of them look up at us, appear shocked when they see us, wide eyes, raised eyebrows, mouth slightly open.
[50] Constable McIsaac made the following note:
F has a look of shock on her face – eyes wide, mouth slightly open, raised eyebrows
M has shocked look on his face – eyes wide open, raised eyebrows, eyes slightly open
[51] Police officers are usually taught to make their own notes. The notes are those of the note-taker, not another officer, although there can be exceptions. For example, the central note-taker in a surveillance situation take notes based on radio calls, as officers are otherwise too busy driving to take notes. It is, however, sometimes inevitable that police officers discuss events among each other after the fact. It is obviously better police procedure if officers make their own notes and draw on their own recollections. They sometimes, however, need the assistance of other officers to re-create events. There is nothing wrong with doing this when necessary.
[52] Thus, the problem is not when police officers collaborate on their notes if it is necessary. The problem is when they do this and they are not forthright about it. That is what tends to undermine the credibility of an officer, not the collaboration on the note-taking. Regrettably, that is what occurred here. The denial of collaboration on the notes causes me to have doubts about the credibility of the central observation.
Trespass to Property Act
[53] As noted, I find that when Constable Bell initially encountered Mr. Nguyen he purported to arrest him under the Trespass to Property Act. That is what Mr. Nguyen said in his videotaped statement. It is also consistent with Constable McIsaac’s evidence in cross-examination (eventually adopted from her preliminary inquiry testimony) that she was initially conducting a trespassing investigation.
[54] Constable Bell testified that he would only arrest someone under the Trespass to Property Act where someone had failed to leave when directed by the owner, had done something illegal according to the owner, or had been on the premises when not permitted. He agreed that none of those circumstances applied to Mr. Nguyen.
[55] The relevant sections of the Trespass to Property Act are these:
2.(1) Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,
is guilty of an offence and on conviction is liable to a fine of not more than $10,000.
9.(1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.
[56] Constable Bell was obviously well aware that he had no grounds to arrest (and search) Mr. Nguyen on under Trespass To Property Act. He obviously could have questioned Ms. Dolma and Mr. Nguyen and would have swiftly discovered that she was a resident and he was a guest. There would have been no basis to arrest and conduct a search. The gun would not, inevitably, have been discovered.
Conclusion
[57] I find as a fact that neither officer observed Mr. Nguyen pass the pink bag to Ms. Dolma. Regrettably, this was an after-the-fact explanation to justify the search. The officers were not fully candid about what happened in the stairwell and they were not fully candid about their notes. I further find that Constable McIsaac commanded Ms. Dolma to hand over the pink bag. That constituted a search. Since there were no grounds to search it, and Mr. Nguyen retained a reasonable expectation of privacy in the bag, the search violated Mr. Nguyen’s rights.
[58] Constable Bell did not arrest or detain Mr. Nguyen for trafficking narcotics. He did not have grounds to arrest or detain Mr. Nguyen for trafficking narcotics. I find that Constable Bell arrested, or at least detained, Mr. Nguyen for a Trespass To Property Act violation. He did not have grounds for that either.
[59] The police power to detain and investigate was described by Iacobucci J. at para. 34 of Mann:
The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer's reasonable suspicion that the particular individual is implicated in the criminal activity under investigation.
[60] Based on the facts as I have found them the police could not have had a suspicion that Mr. Nguyen was connected to recent or on-going criminal activity. They were in the building to investigate an unrelated noise complaint. There was nothing about anything either Mr. Nguyen or Ms. Dolma said or did that gave rise to a suspicion of criminal activity. Thus, he police did not have a basis for their investigative detention of Mr. Nguyen. Accordingly, the pat-down search was not lawful and the search of the pink bag was not lawful.
(c) Should the evidence be excluded?
[61] A court determining whether to exclude evidence under s. 24(2) of the Charter must consider three factors:
• The seriousness of the Charter-infringing state conduct;
• The impact of the breach on the Charter-protected rights of the accused; and,
• Society’s interest in the adjudication of the case on its merits.
See: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras. 67-71.
[62] Although the cases tend to emphasize the three factors, the Court itself articulated the focus of s. 24(2) of the Charter as:
… whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
[63] Thus, the Supreme Court emphasized that a trial judge must determine whether admission of the evidence would bring the administration of justice into disrepute considering all of the circumstances.
[64] In this case, it is my respectful view that a reasonable person, informed of the relevant circumstances would so conclude. That would be the case where the police officers created an after-the-fact justification for an unlawful search and then were not forthright with the Court about it.
The Charter-Infringing State Conduct
[65] The violation of Mr. Nguyen’s s. 8 rights was not trivial, but was certainly not at the most serious end of the spectrum. A pat-down search for the purposes of officer safety, and possibly a safety search of the pink bag would have been justified if the police had a reasonable suspicion of criminal activity. There was none here.
[66] That said, context is critical. The police officers had authority to patrol the stairwell that night. They had the right, indeed the duty, to conduct pro-active policing. They certainly had the authority to investigate what Ms. Dolma and Mr. Nguyen were doing in a stairwell at 4:20 am in a building known for violence and drugs. This is especially so given that Mr. Nguyen was known to one of the officers as a drug dealer and gang member with a firearms-related conviction.
[67] Under those potentially dangerous circumstances, a court should be very hesitant to second-guess the police, and I wish to make it clear that I do not. The constitutional infringement of searching the bag without grounds was serious but understandable given the time, the place, and the parties (or at least one of the parties).
[68] The serious conduct in this case was not that the police essentially acted on a hunch in searching the bag. The administration of justice can tolerate police officers acting in good faith on hunches in stressful and potentially dangerous situations, even if they make errors or act without grounds. Good faith errors may well be accommodated under s. 24(2) of the Charter. As Mr. Bawden conceded, this one probably would have been. The serious Charter-infringing state conduct was the failure of the officers to come clean about it.
[69] The seriousness of the Charter-infringing state conduct will be less serious where the breach was not the result of wilful or deliberate misconduct: Peterkin, at para. 79. In R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, the accused was arrested for impaired driving. He was placed in the back of a police cruiser and searched. The search and the detention were not justified under the circumstances. The majority of the Supreme Court, however, would not have excluded the evidence. The officer in that case acted in good faith and in circumstances where the law on detention was still evolving. Moldaver J. stated at para. 50:
… in cases where the police act in good faith and without deliberate disregard for or ignorance of Charter rights -- as was the case here -- the seriousness of a breach may be attenuated.
[70] The main concern of this part of the inquiry is to maintain public confidence in the rule of law: Grant at para. 73. It is difficult to maintain public confidence in the rule of law where the police are not credible about the key observation that gives them grounds to search.
The Impact Of The Breach
[71] The impact of the breach on Mr. Nguyen, again, was not trivial but not at the most serious end of the spectrum. The search of the pink bag did not impact on his privacy interests in the same way that an intrusive strip-search would have. Furthermore, this was not a compelled statement induced by a breach of the right to counsel.
Society’s Interest In Adjudication On The Merits
[72] Society’s interest in the adjudication of gun crime is high. Illegal guns, and especially illegal handguns, are a pernicious blight. Our community has witnessed the devastation to victims and their families wrought by these pernicious weapons. It is also important that the gun was real evidence, and therefore reliable: Grant at para. 81.
Conclusion On The Exclusion Of The Evidence
[73] I am aware that s. 24(2) is not about punishing the police. As I have noted, Mr. Bawden conceded that if the officers had admitted to what they were doing – searching the pink bag on a hunch or for outright safety purposes in a stairwell in the middle of the night –then he likely would not have been able to persuade a court to exclude the evidence. In these circumstances, I agree. This ruling does not seek to punish the police for the unconstitutional search. I also agree with Mr. Bawden’s point that although the officers were not candid with the Court, they were understandably loath to let a known drug dealer and gang member walk away from a gun violation. While not laudable, it is certainly understandable. That said, fabricating grounds for a search cannot be tolerated.
DISPOSITION
[74] The application is granted. The evidence is excluded.
R.F. GOLDSTEIN J.
Released: December 22, 2016
CITATION: R. v. Nguyen, 2016 ONSC 8048
COURT FILE NO.: CR-16-10000741-0000
DATE: 20161222
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
-and-
KEVIN HAI NGUYEN
Appellant
REASONS FOR JUDGEMENT ON S.8 APPLICATION
R.F. GOLDSTEIN J.
Released: December 22, 2016.