CITATION: R. v. Bollers, 2017 ONSC 3243
COURT FILE NO.: CR-17-50000288-0000
DATE: 20170526
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANDRE BOLLERS
C. Igwe, for the Crown
M. Webster, for the Accused
HEARD: March 27-28, 2017
S.A.Q. Akhtar J.
FACTUAL BACKGROUND AND OVERVIEW
The Arrest of Andre Bollers
[1] On 12 December 2014, two officers, Police Constables Erik Grant and Andrew Gales, attended 700 Humberwood Boulevard in Toronto, on instructions to arrest two males wanted for the offences of aggravated assault, forcible confinement and robbery. Arriving at the building at approximately 12:41 p.m., they noticed a light coloured Dodge Charger, running and stationary at the front of the building. There were two occupants, both of whom were unknown to the officers. They would later be identified as Mark Bollers, who was seated in the driver’s seat, and his brother, the accused, Andre Bollers, who sat alongside him in the front passenger seat.
[2] Mark Bollers opened his door and, as he did so, PC Gales noticed a can of beer in the door pocket nearest the door hinges. He informed PC Grant of his observations and both officers saw Mark Bollers open his door for a second time, on this occasion spitting on the ground beside the car. PC Grant observed what he believed to be a thin, silver can of Molson’s Cold Shot in the door panel and exited his vehicle approaching the driver’s side of the car to investigate what he believed might be an infringement under the Liquor Licence Act, R.S.O. 1990, c. L.19 (LLA). At the same time, PC Gales proceeded to the passenger side door of the car to speak to the accused, Andre Bollers.
[3] As he drew near, PC Grant was able to see numerous cans of beer behind the front passenger seat of the car, including an open Molson can on the rear seat, through the left rear window. PC Grant knocked on the driver’s side car window surprising Mark Bollers who opened the car door and asked “What’s Up?” PC Grant questioned Mark Bollers about the presence of beer cans in the front and back of the car before asking to see his driving licence. PC Grant also warned him that he would be searching the vehicle pursuant to the provisions of the LLA.
[4] At approximately the same time, PC Gales spoke to the accused and noted the presence of a number of open beer cans in the back of the car. PC Gales also observed the accused to be acting nervous with his hands on his lap, shaking, and appearing to be more interested in the dialogue taking place between Mark Bollers and PC Grant than in answering any questions put to him by PC Gales.
[5] Responding to PC Grant’s request, Mark Bollers exited the car to rummage through the back seat before producing his licence. Suddenly, and without warning, he pushed PC Grant and appeared to be about to run but was held back by PC Grant. A struggle ensued and PC Gales left the accused to assist his partner. As he did so, he told the accused to remain inside the vehicle. After the two officers had successfully restrained Mark Bollers, PC Gales informed PC Grant that he had found what appeared to be two large rocks of cocaine in Mark’s trouser pocket.
[6] PC Gales told the accused, who had remained in the vehicle, that he was also under arrest for drug offences. The accused was taken to the police car by PC Grant and was searched for further evidence. PC Grant felt a bulge in the accused’s waistband and lifted his shirt to discover an unloaded Smith and Wesson revolver. The accused was accordingly further arrested for possession of a firearm and transported to the police station.
The Charter Application
[7] Andre Bollers alleges a breach of his ss. 8 and 10(b) Charter rights. He submits that when PC Gales approached and questioned him, he was detained. Even if that were not the case, argues the accused, a detention occurred after PC Gales told him to remain in the car prior to assisting PC Grant with Mark Bollers. In either case, his right to counsel was not read to him causing a breach of his s. 10(b) Charter right. Moreover, he contends that PC Gales had no reasonable and probable grounds to arrest him and, as a result, the subsequent search by PC Grant which yielded the gun was invalid. Accordingly, he asks that the firearm be excluded.
[8] The Crown denies any Charter breaches. It submits that the officers were entitled to search the vehicle pursuant to s. 32(5) of the LLA and lawfully questioned the applicant for investigative purposes. The Crown further argues that the police had reasonable and probable grounds for arresting the accused once the drugs were found on Mark Bollers.
The Liquor License Act
[9] Section 32(1) of the LLA provides that:
32(1) No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit.
Exception
(2) Subsection (1) does not apply if the liquor in the vehicle,
(a) is in a container that is unopened and the seal unbroken; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle.
Conveying liquor in boat
(3) No person shall operate or have the care or control of a boat that is underway while there is contained in the boat any liquor, except under the authority of a licence or permit.
Exception
(4) Subsection (3) does not apply if the liquor in the boat,
(a) is in a container that is unopened and the seal unbroken; or
(b) is stored in a closed compartment.
Search of vehicle or boat
(5) A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.
Did the Police Have Reasonable Grounds to Investigate?
[10] The Crown relies on s. 32(5) of the LLA as the basis for the police search. Mr. Igwe, Crown counsel, takes the position that the section was satisfied once the officers saw the beer cans in the driver’s door and the rear of the vehicle.
[11] An officer’s ability to investigate the presence of opened beer cans in vehicles was examined in R. v. Annett (1984), 1985 CanLII 3654 (SCC), 17 C.C.C. (3d) 332 (Ont. C.A.). There, officers observed an open six pack of Molson Canadian Beer on the passenger floor of a car. The court found that “[p]atently, the officers had reasonable grounds to believe that liquor was being unlawfully kept or had in the motor vehicle. Accordingly, s. 48 [now s. 32] was clearly applicable and conferred upon the officers authority to search the vehicle.”
[12] Similarly, in R. v. Blazevic, 2011 ONSC 7217, the court held that once the police noticed an opened bottle of whiskey in the vehicle by looking through its window, it was clear that they were investigating an offence under the LLA.
[13] Mr. Webster, counsel for the accused, takes issue with the police ability to actually look inside the Dodge Charger as they approached. He submits that when the police exited the vehicle, their obligation was to act in “community policing mode” rather than with the purpose of investigating offences. Mr. Webster submits that the act of looking inside the vehicle amounted to a warrantless search prohibited by s. 8 of the Charter.
[14] I disagree with this submission for a number of reasons.
[15] First, I am unaware of any authority that suggests that the police are obliged to act in a bifurcated manner when they suspect potential offences. Indeed, the jurisprudence of this country makes it clear that when made aware of an offence, the police have a common law duty to investigate crime.
[16] Secondly, the authority to investigate under s. 32(5) of the LLA and search the car was triggered when the police initially saw Mark Bollers open the door and viewed a beer can in the driver’s side compartment in the door.
[17] Thirdly, the mere act of looking through the window of a car parked in a public place does not constitute an unconstitutional search. The police were not acting unlawfully when they viewed the opened beer cans and appellate authority has endorsed significantly more intrusive observations to carry out inspections of vehicles: R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, at pp. 623–24. The beer cans in this case were in plain sight of the officers and peering into the car could not constitute a search. As was stated by Rosenberg J.A. in R. v. Lotozky (2006), 2006 CanLII 21041 (ON CA), 210 C.C.C. (3d) 509 (Ont. C.A.) at para. 19:
As regards the other two aspects of the police conduct, I tend to think that merely tapping on the window, like peering into a window with a flashlight, does not involve a search.
[18] Moreover, it defies common sense that the police in this case would be expected to ignore the beer cans in plain view when the purpose of attending the car was to investigate the offence of unlawfully keeping alcohol in a car. In R. v. Grunwald, 2010 BCCA 288, at para. 48, the court remarked that a “police officer is not required to avert his eyes when he comes across something suspicious that is unrelated to the investigation he is pursuing.” It makes even less sense that an officer would be bound to ignore evidence that actually forms the subject matter of the investigation.
[19] For these reasons, I conclude that there was no breach of the applicant’s s. 8 rights.
Was There a Breach of the Applicant’s Right to Counsel?
[20] Mr. Webster further argues that when PC Gales initially approached and questioned the accused as he sat in the passenger seat of the vehicle, Andre Bollers was detained and PC Gales was obliged to read him his rights to counsel. His failure to do so, argues Mr. Webster, amounts to a breach of the accused’s s. 10(b) rights under the Charter and any evidence found thereafter should also be excluded under s. 24(2) of the Charter.
[21] I find this argument to be untenable for the following reasons.
[22] There is no doubt that on detention a suspect must be read his s. 10(b) Charter rights: R. v. Grant, 2009 SCC 32; R. v. Suberu, 2009 SCC 33.
[23] In Grant, the court remarked that the fact that the police might have a suspicion that an accused was involved in criminality would not, per se, create a detention. At para. 41, the court explained:
As discussed earlier, general inquiries by a patrolling officer present no threat to freedom of choice. On the other hand, such inquiries can escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particular individual. Focussed suspicion, in and of itself, does not turn the encounter in a detention. What matters is how the police, based on that suspicion, interacted with the subject.
[24] Further, in Suberu, the court again emphasised that not every interaction with the police would constitute detention. At para. 24, the court remarked:
As explained in Grant, the meaning of "detention" can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society's interest in effective policing and the detainee's interest in robust Charter rights. To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter.
[25] In Suberu, the majority of the Supreme Court of Canada found that a detention had not taken place despite the police officer telling the accused that he should “[w]ait a minute. I need to talk to you before you go anywhere.” As can be seen, this was a far more coercive encounter than the one between Gales and the accused.
[26] The court in Suberu, at para. 23, cited, with approval, the following observations made by Iacobucci J. in R. v. Mann, 2004 SCC 52, at para. 19:
"Detention" has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed”, or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. In this case, the trial judge concluded that the appellant was detained by the police when they searched him. We have not been urged to revisit that conclusion and, in the circumstances, I would decline to do so.
[27] The authorities suggest that if the questioning is of an exploratory nature and limited to the scope of a general enquiry to “sort out” the situation being investigated, there is no detention requiring the giving of the s. 10(b) right: see also, R. v. Wilson, 2015 ONSC 6687, at para. 36. For example, preliminary questions such as requests for identification do not amount to a detention for s. 9 or s. 10 purposes: R. v. Humphrey, 2011 ONSC 3024, at para. 125.
[28] I find that to be what happened in the case at bar. PC Gales had approached the passenger side door of the car to sort out who was involved in any potential LLA offence. His questioning of Andre Bollers was of a general, exploratory nature based on the sighting of opened beer cans in the car. He sought to determine who and what was involved: PC Gales was, like the police in Suberu, sorting out the situation. As in Suberu, it would have been absurd to give the accused his right to counsel before actually determining what the actual situation was.
[29] Although I find that PC Gales’ questioning was the type that fell within the Grant/Suberu description set out above, I would also hold that the accused has failed to establish that he was, in fact, detained.
[30] The question of detention involves an examination of whether an individual’s liberty interest is suspended, either physically or by psychological restraint: Suberu, at para. 21. The onus is on the accused to show that he was effectively deprived of his liberty of choice. The fact that the accused did not testify on the evidentiary voir dire is not fatal to his application but his assertion that the police deprived him of his liberty must have support in the evidence: Suberu, at para. 28.
[31] Psychological detention is established where the accused had a legal obligation to comply with a restrictive request or demand, or a reasonable person would, viewing all the circumstances, come to the determination that the accused had no choice but to comply: Grant, at para. 44.
[32] I find that, when viewed through an objective lens, the facts of this case do not suggest any type of psychological detention. PC Gales did not tell the accused he was unable to leave or physically bar him from doing so. There was nothing to suggest the interaction between PC Gales and the accused went beyond the type of general enquiries envisaged in Grant and Suberu. The accused’s own reactions appeared to indicate that he felt no legal obligation or restraint as evidenced by PC Gales’ testimony that the accused seemed more interested in listening to the conversation between PC Grant and Mark Bollers than answering the questions put to him by PC Gales. For these reasons, I find that no detention occurred when PC Gales conversed with the accused when he stood at the passenger door.
[33] The situation changed, however, when PC Gales left the accused to assist PC Grant in restraining Mark Bollers. At that point, there is no dispute that PC Gales told the accused to remain in the car. PC Gales testified that he did so because it was not prudent to deal with both Mark Bollers and the accused outside the car. It is not disputed by the Crown that, at this point, the accused was detained. Even though that detention would normally trigger the right to counsel, the majority of the Supreme Court of Canada in Suberu, at para. 2, also confirmed that the immediacy of the duty to inform the accused of his s. 10(b) right “is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter:” see also, Grunwald, at para. 27; Wilson, at paras. 61–62.
[34] In this case, PC Gales’ testimony would fall within this exception. In rushing to aid his partner, PC Gales had no time to inform the accused of his right to counsel and provide him with the opportunity of exercising those rights: Blazevic, at paras. 140–42. Accordingly, I find no breach of the accused’s right to counsel.
Was the Accused’s Arrest Arbitrary?
[35] Finally, Mr. Webster argues that since the police had no reasonable and probable grounds to arrest the accused, his s. 9 Charter rights were breached.
[36] Section 450(1) of the Criminal Code specifies that the police must have reasonable and probable grounds that an individual has committed an offence before they are permitted to arrest him or her. Subjective belief on the part of the officer is insufficient: there must be an objective basis establishing the existence of those reasonable and probable grounds: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 249–50.
[37] The existence of reasonable and probable grounds is obviously contextual and any analysis scrutinising an officer’s decision to arrest an accused must be viewed in a flexible manner. In R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), at para. 18, the court pointed out the volatile nature of circumstances surrounding an arrest by stating:
…The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.
[38] The police, in arresting an individual, must be aware of a “constellation of objectively discernible facts” linking that individual to the offence being investigated: R. v. Hall (1995), 1995 CanLII 647 (ON CA), 22 O.R. (3d) 289 (C.A.), at para. 37. It is this “constellation” of facts that the court looks to in deciding whether an arrest was lawfully made.
[39] What, then, was the constellation of facts relied upon in the arrest of the accused? PC Gales testified that he based his decision on the following items of evidence:
• The Dodge Charger was running at the time it was parked in front of the condominium building;
• The accused was acting nervously when PC Gales spoke to him;
• During questioning, the accused seemed more interested in listening to the conversation taking place between PC Grant and Mark Bollers than answering any of PC Gales’ inquiries; and
• When the crack cocaine was found upon Mark Bollers, it was found in a readily accessible part of his clothing rather than being hidden in the car.
[40] The last item of evidence was significant because in the officer’s experience, when the owner of drugs was travelling in a car, the narcotics would be secreted in an area of the vehicle which made them more difficult to find in the event of a search. It was only when the owner was engaged in trafficking that the drugs would be found in a more easily accessible location.
[41] On their own, each individual observational item would not be sufficient to establish the existence of reasonable and probable grounds that an offence had been committed. When viewed together, however, the conclusion is very different.
[42] The subjective part of the Storrey test is met. I found PC Gales to be a credible witness and find that he believed, on the basis of the grounds set out above, that the accused was in possession of cocaine for the purpose of trafficking.
[43] Turning to the objective component of the test, the analysis must be conducted with reference to the totality of the circumstances relied upon by the officer: R. v. Lawes, 2007 ONCA 10, at para. 4. An objective assessment includes taking into account the officer’s experience which forms the basis for his conclusions: Lawes, at para. 4. In other words, the court must look at the events through the eyes of a reasonable person standing in the shoes of the arresting officer - that is, someone who would have the same training and experience of that officer: R. v. Tran, 2007 BCCA 491, at para. 12.
[44] Applying these principles, I find that the objective standard has also been satisfied. PC Gales had extensive experience in drug offences, testifying that he had been involved in 30 different drug arrests since 2014. A reasonable person with PC Gales’ experience and background, and making the same observations, would conclude that a drug transaction had likely occurred prior to the officers approaching the Bollers’ vehicle.
[45] Accordingly, I find that there was no breach of the accused’s s. 9 Charter rights.
CONCLUSION
[46] For the above reasons, the accused’s Charter application is dismissed.
S.A.Q. Akhtar J.
Released: 26 May 2017
CITATION: R. v. Bollers, 2017 ONSC 3243
COURT FILE NO.: CR-17-50000288-0000
DATE: 20170526
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANDRE BOLLERS
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.