Her Majesty the Queen v. Zedekiah McAnuff, 2017 ONSC 3137
COURT FILE NO.: CR17-070-0000 DATE: 20170523
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Respondent Brenda A. Lawson, for the Respondent
- and -
Zedekiah McAnuff Applicant Christien B. Levien, for the Applicant
HEARD: May 18, 2017
REASONS FOR DECISION ON DEFENCE PRETRIAL APPLICATION: Sections 8, 9, 10(b) and 24(2) of the Charter
Conlan J.
I. Introduction
The Charges
[1] Zedekiah McAnuff (“McAnuff”) and Emily Vukasinovic (“Vukasinovic”) stand charged on a multi-count Indictment. They have elected to be tried by a Superior Court Judge, sitting alone.
[2] The charges are as follows:
- Zedekiah McAnuff and Emily Vukasinovic stand charged that, on or about the 15th day of September 2016 at the Town of The Blue Mountains 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, thereby committing an offence under section 5(3) of the said Act.
- AND FURTHER THAT Zedekiah McAnuff and Emily Vukasinovic stand charged that, on or about the 15th day of September 2016 at the Town of The Blue Mountains in the Judicial Region of Central West, did without lawful excuse store ammunition to wit: .38 calibre bullets in a careless manner contrary to section 86(1) of the Criminal Code of Canada, thereby committing an offence under section 86(3) of the said Act.
- AND FURTHER THAT Zedekiah McAnuff and Emily Vukasinovic stand charged that, on or about the 15th day of September 2016 at the Town of the Blue Mountains in the Judicial Region of Central West, did have in their possession proceeds of property to wit: Two Thousand Seven Hundred Dollars in Canadian currency, of a value not exceeding five thousand dollars, knowing that all or part of the proceeds of the property was obtained or derived directly or indirectly from the commission of an offence punishable by indictment contrary to section 354(1)(a) of the Criminal Code of Canada, thereby committing an offence under section 355(b) of the said Act.
- AND FURTHER THAT Zedekiah McAnuff stands charged that, on or about the 15th day of September 2016 at the Town of The Blue Mountains in the Judicial Region of Central West, did have in his possession ammunition to wit: .38 calibre bullets while prohibited from doing so for fifteen years by reason of an order made by Justice J. Richardson pursuant to section 109 of the Criminal Code of Canada, in the City of Toronto on June 29, 2011, contrary to section 117.01(1) of the Criminal Code of Canada, thereby committing an offence under section 117.01(3) of the said Act.
The Application
[3] McAnuff, alone, has made an application pursuant to the Charter.
[4] He alleges violations of sections 8, 9 and 10(b). Under section 24(2), he seeks the exclusion of all of the evidence seized after the first alleged infringement, namely, his arbitrary detention by the police.
The Voir Dire
[5] Both sides filed written materials on the Charter Application. Although the Applicant’s materials were incomplete and did not comply with the Rules, the Application was permitted to proceed.
[6] In addition to those filings, the Court heard testimony from three Ontario Provincial Police officers: (i) Brittany Coe (“Coe”), (ii) Kevin Cornell (“Cornell”), and (iii) Pieter Huyssen (“Huyssen”).
[7] The Applicant called no evidence.
[8] The entire hearing, including submissions, lasted less than one full day. The evidence consumed just one-half day of Court time.
[9] Coe had no dealings at the roadside with McAnuff. She dealt with Vukasinovic.
[10] Cornell was the principal officer who spoke with McAnuff at the roadside. And he arrested McAnuff for public intoxication.
[11] Huyssen was the officer in charge of retrieving McAnuff’s identification from inside McAnuff’s vehicle. It was Huyssen who seized the evidence in support of the charges.
The Relevant Sections of the Charter
[12] Set out below are sections 8, 9, 10(b) and 24(2) of the Charter.
Everyone has the right to be secure against unreasonable search or seizure.
Everyone has the right not to be arbitrarily detained or imprisoned.
Everyone has the right on arrest or detention (b) to retain and instruct counsel without delay and to be informed of that right; and
(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.
II. Analysis
The Onus and Standard of Proof
[13] The burden of proof is on McAnuff to demonstrate, on a balance of probabilities, a violation of his section 8, 9 and/or 10(b) Charter right(s).
[14] Where a Charter violation is found, the burden is on McAnuff to demonstrate, on balance, that the evidence in question ought to be excluded pursuant to section 24(2).
[15] Warrantless searches, however, are presumed to be unreasonable under section 8. The onus then falls to the party seeking to justify the warrantless search, the Crown, to rebut, on balance, the presumption of unreasonableness.
The Facts
[16] At about 12:55 a.m. on September 15, 2016, the Ontario Provincial Police (“police”) were performing RIDE checks in the Town of the Blue Mountains (located between Collingwood and Owen Sound, in Grey County).
[17] A 2006 Lincoln ZHR was stopped. That vehicle was owned by McAnuff.
[18] Vukasinovic was driving. McAnuff was the front passenger.
[19] Vukasinovic failed a roadside screening device test and was arrested for “over 80”.
[20] McAnuff was ultimately arrested as well, for public intoxication. He was searched. No identification was found on his person, but a folding pocket knife was seized.
[21] The vehicle was entered by the police. Not just identification for McAnuff was found. Drugs were discovered as well.
[22] By 1:20 a.m., about 25 minutes after the initial stop of the vehicle, police were providing McAnuff with his right to counsel and the standard cautions.
[23] In summary, the following items were seized (omitting the vials, as no charge was laid with regard to those):
(i) from the center console of the vehicle, identification in the name of McAnuff and a relatively large amount of Canadian cash (it turned out to be $2,700.00); (ii) from the sliding bar that adjusted the seat that McAnuff had occupied, a plastic baggie containing suspected cocaine; (iii) from the rear pocket of the front passenger seat, two plastic baggies containing suspected cocaine; (iv) from the rear passenger seat, a clear glass jar containing two plastic packages of suspected cocaine and eight .38 calibre bullets, also wrapped in plastic; and (v) from both the front and rear compartments of the vehicle, a few cellular telephones.
[24] At the time, McAnuff was prohibited from possessing firearms and ammunition.
[25] The cocaine totalled about 21 grams.
[26] None of the above facts is in dispute.
[27] What is in dispute, or at least the subject of argument, is what exactly transpired between the police and McAnuff which led to his arrest for being intoxicated in a public place and then the subsequent search of his vehicle.
[28] On that, Coe’s evidence is irrelevant.
The Evidence of Cornell
[29] Cornell testified that he stood by the driver’s side of the vehicle, for officer safety reasons, while Coe was dealing with the driver.
[30] He asked the male in the front passenger seat where they were coming from. The male answered “the cliffs”.
[31] As Cornell could smell alcohol, he asked the male if he had consumed any alcohol.
[32] The male got mad. He started commenting that it was his birthday, that it was not fair, that the police were ruining his day, and that he lived just down the road. He pleaded for the police to let his girlfriend, Vukasinovic, go free.
[33] Cornell was then told by Coe that the driver had been arrested for “over 80”.
[34] Cornell told the male that the vehicle would be towed.
[35] The male got upset again.
[36] Cornell told the male that he could retrieve his personal stuff from the vehicle.
[37] At the request of Cornell, the male removed the keys from the ignition, gave to Cornell the key for the vehicle, and kept the other keys.
[38] Cornell told the male to get out of the vehicle because of the tow.
[39] The male exited. He was unsteady on his feet. He smelled of alcohol.
[40] Cornell offered the male a ride home by the police or in a taxi.
[41] The male was still upset.
[42] Cornell repeatedly cautioned the male about public intoxication.
[43] Cornell asked the male if it was his vehicle, to which the male said that it was.
[44] Cornell asked the male to calm down. The male was yelling. There was another caution about public intoxication. The male was still yelling.
[45] At 1:12 a.m., Cornell arrested the male for public intoxication.
[46] The male was handcuffed and searched. A knife was found but no identification.
[47] Cornell asked if the identification was inside the vehicle. The male stated that it was. Cornell asked for permission to get it. The male gave that permission. The male directed the police to the glove box.
[48] Huyssen entered the vehicle to retrieve the identification.
[49] As a result of what was discovered by Huyssen, at 1:15 a.m., the male was arrested for a narcotics offence.
[50] Now armed with identification in the name of the male, McAnuff, a CPIC check was done which revealed, among other things, that he was flagged as violent.
[51] McAnuff was placed in the rear of a police car.
[52] At 1:20 a.m., the right to counsel and the standard cautions were administered to McAnuff.
[53] According to Cornell, prior to his arrest for being intoxicated in a public place, McAnuff was free to leave the scene.
[54] In a very short cross-examination which did not challenge any of the above testimony from Cornell, the following items were established.
[55] First, that Cornell never specifically told McAnuff that he was free to go.
[56] Second, that McAnuff was not just pleading for the police to let his girlfriend go, but him as well.
[57] Third, that Cornell never offered to McAnuff the chance to retrieve his own identification from inside the car. The officer stated that was because he was handcuffed.
[58] And finally, that the grounds for the arrest for public intoxication were the smell of alcohol on McAnuff, him being unsteady on his feet, it being not long after midnight, McAnuff yelling, and there being residences nearby the controlled intersection where the RIDE program had been set-up.
[59] Before leaving the evidence of Cornell, I will address Mr. Levien’s submission that I should not rely too much on the officer’s testimony because he does not have times in his notes between 12:44 and 1:12 a.m.
[60] Contrary to the submission of Mr. Levien, in my view, that strengthens the notion that Cornell was not investigating anything when he was standing near the subject motor vehicle and speaking, briefly, with McAnuff.
[61] Further, the lack of specific times in Cornell’s notebook does not reduce the reliability of what the officer says transpired during that time period. It is the content of Cornell’s evidence that matters, not the times that precise things occurred during those 28 minutes.
The Evidence of Huyssen
[62] For his part, Huyssen described “countless” offers made by the police to get McAnuff home, all of which were denied.
[63] Huyssen testified that McAnuff was free to go, whether by walking or by some other mode of transportation.
[64] Huyssen confirmed that McAnuff gave permission for the police to enter the vehicle to get his identification.
[65] On one point, Huyssen was inconsistent in his evidence. In cross-examination, which again was extremely short and not aimed at challenging any of his evidence in any material way, Huyssen stated that McAnuff was directed to exit the vehicle by Cornell in order to be arrested for public intoxication. In re-examination, however, Huyssen stated that McAnuff was asked to get out of the vehicle because of the tow.
[66] On whether McAnuff was inside or outside of the vehicle when he was arrested for public intoxication, I prefer the evidence of Cornell. He was the actual arresting officer. His evidence as to his interactions with McAnuff was much more detailed than that of Huyssen. And it makes more sense that the arrest took place after McAnuff had exited the vehicle because, otherwise, there would have been no observations by Cornell of McAnuff being unsteady on his feet, which evidence I accept.
The Section 9 Issue
[67] I disagree with the Applicant that he was detained before he was arrested for public intoxication.
[68] Contrary to the submissions of the Applicant, I find no police “questioning at length” or “investigation” of McAnuff prior to the arrest for public intoxication.
[69] I also disagree with the Applicant that the arrest for public intoxication was made without reasonable and probable grounds.
[70] As such, there was no section 9 violation.
[71] Frankly, McAnuff has nobody to blame but himself for his predicament. Had he simply left the scene or taken the police up on their offers to get him home, he would not have been arrested for anything. And none of the evidence would have been discovered either.
[72] I accept the evidence of both Cornell and Huyssen that McAnuff was free to leave the scene. Although I agree with Mr. Levien that it would have been ideal for the police to have stated that explicitly to McAnuff, it would have been obvious from the fact that there were continuous offers by the authorities to get him home, whether in a police vehicle or in a taxi.
[73] The Applicant is unable to point to a single circumstance that weighs in favour of a finding of detention, pre-arrest for public intoxication, except simply that McAnuff was near and, at times, speaking with the police.
[74] Every factor points against a finding of detention. As examples only, McAnuff was not being restrained in any way, he was not being impeded or obstructed physically, he was not being interrogated but rather was being asked a few innocuous questions by Cornell, he was in a public area, and he was being specifically offered a ride home.
[75] I have no evidence that McAnuff felt detained. Further, I have no reason to think, objectively, that he was.
[76] The evidence adduced at the hearing simply does not support the assertions that McAnuff was “questioned at length” or that the encounter between him and Cornell, pre-arrest for public intoxication, was any kind of an “investigation”.
[77] As for whether there were ample grounds to arrest McAnuff for being intoxicated in a public place, the Applicant relies heavily on an old decision of Justice Stortini, in 1988, in a case called R. v. Proulx, [1998] O.J. No. 890.
[78] It is unclear whether that case involved the same section of the Liquor Licence Act relied upon by Cornell (counsel were unable to help this Court on that query).
[79] In any event, Mr. Levien is correct that the case relied upon sets a relatively high test for grounds to arrest someone for public intoxication – “stupefaction by alcohol to the point where the person had lost the capacity to prevent himself from causing injury to himself or be a danger, nuisance or disturbance to others. A person must be very drunk…” (page 4).
[80] I am satisfied that the said test, if correct, was met in our case. I accept the evidence of Cornell and Huyssen that this was a highly public area – the intersection of two roads with traffic lights and residences nearby. I also accept the evidence of Cornell that McAnuff was yelling and carrying on in an agitated state, on the side of the road, all while showing signs of impairment by alcohol.
[81] In short, McAnuff had lost the capacity to prevent himself from being, at least, a nuisance or disturbance to others.
[82] Cornell articulated his grounds for the arrest. Subjectively and objectively, in my view, they were sufficient.
The Section 10(b) Issue
[83] It is important to note that there is no argument by the Applicant that his right to counsel was infringed before his arrest for being intoxicated in a public place. I need not address that.
[84] I disagree with the Applicant that his section 10(b) right was violated because he was not advised of his right to counsel immediately after his arrest for public intoxication.
[85] It seems highly suspect to me that a violation of the right to counsel would be found where an intoxicated person, McAnuff, was not immediately told of his right to counsel on a liquor offence that is normally dealt with by way of a ticket, especially when it is uncontroverted that McAnuff received his full and proper rights just eight minutes later.
[86] I accept the evidence of Cornell that this type of provincial offence is normally dealt with by way of a ticket.
[87] The arrest for public intoxication was at 1:12 a.m. The arrest and full rights provided for the cocaine offence occurred at 1:15 and 1:20 a.m., respectively.
[88] Besides, I agree with Justice Code in R. v. Haye, 2013 ONSC 1208 (S.C.J.) that there are occasions when the operational requirements of police powers are incompatible with section 10(b) of the Charter (paragraph 50).
[89] At the roadside, dealing with a provincial offence normally handled by way of a ticket, the decision by these police officers to try to identify the arrested person with a valid document was a reasonable one.
[90] Whether the officers would have ultimately given McAnuff his right to counsel on the public intoxication charge after retrieving the identification, I do not know because other things happened which made that moot. Eight minutes later, full rights were given to McAnuff following his arrest for the cocaine offence.
[91] On these facts, there was no violation of Mr. McAnuff’s right to retain and instruct counsel without delay and to be informed of that right.
[92] Assuming without deciding that the Applicant is correct that section 10(b) applies to every instance of an arrest for public intoxication under the Liquor Licence Act, the eight-minute delay here is readily explained by what was transpiring at the roadside – the effort to identify the arrestee.
The Section 8 Issue
[93] Standing is not an issue in this case. The prosecution concedes that McAnuff had a reasonable expectation of privacy in the motor vehicle and its contents.
[94] I disagree with the Applicant that he did not validly consent to the police entering the vehicle to retrieve his identification.
[95] I also disagree with the Applicant that the entry into the vehicle by the police was a ruse of some sort.
[96] I agree with the Crown that the lawfulness of the initial entry by police into McAnuff’s vehicle is aided by but is not necessarily dependent on McAnuff’s consent. It was an authorized search for McAnuff’s identification which was incidental to McAnuff’s arrest for public intoxication.
[97] On that point, the Crown relies on this Court’s decision in Her Majesty the Queen v. D’Souza, 2016 ONSC 5855.
[98] In addition to that decision, however, it just makes common sense that the search for the identification was truly incidental to the arrest for public intoxication. Both subjectively and objectively, there was a reasonable basis for doing what the police did – to confirm McAnuff’s identity. And the search was conducted in a reasonable manner, quickly and in a targeted way, and was connected with its purpose – to retrieve the arrestee’s identification from the glove box.
[99] Mr. Levien did not address this point, search incidental to arrest, in his submissions but rather focused exclusively on whether the consent was a valid one. Specifically, although both Cornell and Huyssen clearly testified that McAnuff readily gave his permission for the police to retrieve his wallet from the glove box, Mr. Levien argues that the police ought to have told McAnuff of the potential consequences of them doing so.
[100] What potential consequences? The police had no reason to suspect that there would be something illegal inside the glove box.
[101] In any event, assuming without deciding that Mr. Levien is correct in that the consent was somehow invalid, it matters not. The search was an authorized one, regardless of whether it was consensual.
[102] Faced with an upset, somewhat uncooperative and intoxicated male party at the roadside, it was not unreasonable for the police to want to take the step of confirming McAnuff’s identity through documentation rather than some other means. It should have been an easy task.
[103] Once the drugs were found, the police had every right to continue to search the vehicle for more evidence. The Applicant does not submit otherwise.
[104] There was no violation of section 8.
Section 24(2) of the Charter: The Analysis in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353
[105] There are three lines of inquiry. First, an examination of the seriousness of the Charter-infringing state conduct. There is a spectrum, from inadvertent or minor violations to wilful or reckless disregard for the constitutional rights of an accused person. The question is whether admission of the evidence would send the wrong message to society that the courts condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct.
[106] Second, an evaluation of the impact on the Charter-protected interests of the accused. The more serious the impact, the greater the risk that admission of the evidence would breed public cynicism and bring the administration of justice into disrepute.
[107] Third and finally, an assessment of society’s interest in the adjudication of the case on its merits. The more reliable the evidence is and the more important it is to the case for the prosecution, the greater the chance that the evidence will be admitted. The question is whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence.
[108] Although not strictly necessary, for the benefit of any reviewing Court, I will analyze, briefly, the section 24(2) issues.
[109] In a case of multiple breaches of Charter rights, it seems to me that the repeated nature of the state’s unconstitutional conduct is a relevant consideration on both the first and second lines of inquiry. For example, the cumulative effect of multiple violations, although individually rather trivial, might be seen as more serious.
[110] Here, however, even if I am wrong on all of the rights engaged, and even if I had found an arbitrary detention beginning when Cornell first started to speak to McAnuff, plus an arrest for public intoxication made without reasonable and probable grounds, plus an unreasonable search of the motor vehicle (in other words, violations of sections 9, 10(b) and 8), I would have admitted the evidence under section 24(2).
[111] I would have characterized the infringements, even cumulatively, as being in the middle of the spectrum of seriousness. They were certainly not “egregious” as suggested by the Applicant. Not only was there no bad faith, but the police acted in good faith in trying to help McAnuff get home and in attempting to retrieve his identification so that the ticketing offence of public intoxication could be dealt with efficiently.
[112] I would have described the impact on Mr. McAnuff’s Charter-protected interests as significant (a restraint of liberty, handcuffing, and a rather extensive search of his vehicle).
[113] I would have found these offences to be serious, the evidence real and reliable, and the evidence crucial to the prosecution’s case.
[114] I would have adjudged the first Grant, supra factor relatively neutral, the second favouring exclusion and the third favouring admission.
[115] On balance, I would have admitted the evidence as to do otherwise would cause more harm to the repute of the administration of justice.
III. Conclusion
[116] For all of the above reasons, Mr. McAnuff’s Charter Application is dismissed.
[117] I thank Mr. Levien and Ms. Lawson for their able assistance.