COURT FILE NO.: CR-16-1812 DATE: 2017 06 09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Christina Sibian, for the Crown
- and -
SURENTHAR SIVARASAH and TAMIM BAREGZAY Aaron Wine, for Mr. Sivarasah Jeffrey Reisman, for Mr. Baregzay Accused
HEARD: May 23, 24, 25, 29, and June 1, 2017
REASONS FOR JUDGMENT
COROZA J.
Overview
[1] Mr. Sivarasah and Mr. Baregzay are charged with a number of offences arising out the seizure of a gun during a traffic stop. What began as a routine traffic stop ultimately progressed to an arrest of both men under the Controlled Drug and Substances Act, S.C. 1996, c. 19 (CDSA) and then a search of the car incident to the arrest. During the search, police discovered a loaded firearm underneath the passenger seat.
[2] Both accused bring motions to exclude the evidence of the gun under s.24(2) of the Charter, alleging that it was obtained in violation of their rights under s. 8. The Crown argues that there was no violation of the rights of the accused and, even if there were, the evidence should not be excluded.
[3] The accused have elected trial by judge alone. The evidentiary record for these voir dires consists of the testimony of three police officers and the two accused.
[4] On June 1, 2017, I released brief oral reasons. I held that the Charter applications under s. 24(2) succeeded and I excluded the evidence of the gun. The Crown called no further evidence. The defence called no evidence and I entered acquittals for both men. I promised that written reasons would follow.
[5] These are the reasons for ruling on the Charter applications. [1]
Overview of the Facts
[6] On January 16, 2016 at about 7:37 p.m., Cst. Raji of the Peel Regional Police pulled over a Honda that was driving slowly in the general area of McVean Drive and Riverstone Drive in the City of Brampton. Cst. Raji intended to investigate the driver for the offence of impaired driving. Mr. Sivarasah was driving. Mr. Baregzay was seated in the front passenger seat.
[7] During the investigation, Cst. Raji requested identification from both men. Both men complied and Cst. Raji returned to his police cruiser and ran a check on the identification. He discovered that Mr Sivarasah had a criminal record and involvement with weapons. He also discovered that Mr. Baregzay had previously been charged with a CDSA offence.
[8] Two other police officers, Cst. Furlotte and Cst. Dykxhoorn, arrived at the scene while Cst. Raji was checking on the accused’s identification in his police cruiser. When Cst. Raji returned to the Honda, the other two officers accompanied him. Cst. Furlotte stood near the passenger door and Cst. Dyxhoorn stood some distance behind Cst. Furlotte.
[9] What occurred next is in dispute. Cst. Raji testified that when he returned to the Honda, he was using a flashlight and saw a clear plastic baggie in the centre console. The baggie appeared to have some white tablets. He asked the occupants what was in the baggie. He then directed Mr. Sivarasah to give him the baggie. Mr. Sivarasah complied. He examined the baggie and saw that it contained four white tablets that were not labelled. At that point, he advised both men they were under arrest for a CDSA offence. Both men were removed from the Honda. Cst. Raji then did a further search of the car. He found a loaded gun underneath the front passenger seat, which is the subject of the charges now before the Court.
[10] I now turn to a more detailed summary of the evidence.
Summary of the Evidence
Cst. Raji
[11] On January 16, 2016 at 7:33 p.m., Cst. Raji was driving southbound in a marked car on McVean Drive near Lexington Road, Brampton. He noticed a silver Honda Accord travelling southbound ahead of him in the curb lane.
[12] He testified that the car was travelling slower than the 60 km per hour posted speed limit. As he approached it, he noticed that there were no cars ahead of it and he could not understand why the car was going slow. He decided to catch up to the car and pace it by using his odometer, and he confirmed that the car was going about 48 km per hour.
[13] As he was pacing this car, he noticed the Honda eventually picked up speed and changed lanes in front of his cruiser. Cst. Raji testified that he had to apply his brakes because it almost hit his cruiser. The car then entered the left turn lane. Cst. Raji formed the suspicion that the driver was impaired. Therefore, he activated his emergency lights and, at 7:37 p.m., he stopped the car at McVean Drive and Riverstone Drive.
[14] He testified that he stopped the car because it was being driven in an erratic manner, and he thought the driver might be impaired by alcohol or drugs.
[15] During his examination–in-chief, he testified that he may have observed the car for about three minutes before he decided to pull it over. He acknowledged that he ran the license plate of the car before he got out of his cruiser. He testified that he checked the license plate because this would give him the information of the registered owner of the car and whether the car had been involved in criminal activity or was stolen.
[16] When he got to the driver side of the car, Cst. Raji testified that the window was open.
[17] He asked the driver, Mr. Sivarasah, if he had consumed any alcoholic beverages. Mr. Sivarasah told him that he was sick and he was carrying a can of fruit juice in his right hand to keep himself hydrated. Mr. Sivarasah denied drinking alcohol.
[18] Cst. Raji testified that the passenger, Mr. Baregzay, appeared nervous and told him that they had not been drinking. Mr. Baregzay told the officer that they had done nothing wrong. Cst. Raji explained to Mr. Baregzay that he was interested in the driver, not him.
[19] He testified that after learning Mr. Baregzay was Muslim, he spoke to him in Farsi. Cst. Raji claimed that Mr. Baregzay continued to be nervous and he tried to calm him down by speaking to him in Farsi.
[20] Cst. Raji testified that he asked both men for identification. Mr. Sivarasah gave the officer his driver licence and Mr. Baregzay gave him his health card. Cst. Raji walked back to his cruiser and the men remained in their car.
[21] Cst. Raji testified that he had not concluded his impaired investigation at this point because he did not get close enough to the driver side window to make any real observations of Mr. Sivarasah.
[22] While he was seated in his cruiser conducting checks with the identification, Cst. Furlotte and Cst. Dykxhoorn arrived on the scene. Cst. Raji had not requested an additional unit.
[23] Cst. Raji told the officers the reason for the traffic stop and he explained that the passenger was nervous. He told them he was going to check to see if the driver was impaired.
[24] Cst. Raji testified that he did not use a flashlight when he initially pulled over Mr. Sivarasah. However, he testified that when he returned to the Honda the second time, he had his flashlight out.
[25] He testified that when he attempted to speak to Mr. Sivarasah for the second time, he saw a small plastic baggie with white pills and a water bottle with clear liquid in the console cup holder, between the driver and passenger seats.
[26] He testified that he asked both men what the baggie was. They told him that they had no knowledge of the pills and no occupant took ownership of the pills.
[27] He asked the driver to hand it him. He examined the baggie and looked at the tablets. Since there was no description or label on the baggie, no description or markings on the tablets and there was no explanation for what they were doing in the car, Cst. Raji arrested both men for an offence under the CDSA. The arrest took place at about 7:57 p.m.
[28] After the arrest, he asked Mr. Sivarasah to exit the car. He testified that he and Cst. Furlotte searched him.
[29] He testified that Cst. Dykxhoorn arrested Mr. Baregzay and took him into custody.
[30] After both men exited the car, Cst. Raji searched the Honda. He testified that he located a handgun underneath the front passenger seat close to the edge of the seat. After he located the gun, he put it down and advised the two men they were arrested for a firearm charge.
[31] Cst. Raji testified that when he found the gun, Mr. Sivarasah and Mr. Baregzay were with Cst. Furlotte and Cst. Dyxhoorn near a sidewalk.
[32] Cst. Raji testified in cross-examination that he recalled reviewing a criminal record for Mr. Sivarasah prior to speaking to him. However, he denied that any of this information played a role to stop the car.
[33] When asked during cross-examination whether he was at the nearby Tim Horton’s at McVean and Castlemore, Cst. Raji acknowledged that he was. However, he denied following the accused from this parking lot.
[34] He agreed that the entire distance from the Tim Horton’s to the location of the stop (Riverstone Drive) is about a three minute drive.
[35] He also agreed that there was nothing in his notebook about the car pulling in front of his cruiser in an erratic or dangerous manner.
[36] With respect to why Cst. Raji asked Mr. Baregzay for his identification, Cst. Raji testified during cross-examination that he asked for it because he was intervening with his investigation into Mr. Sivarasah.
[37] He agreed that he did not observe the baggie with the white tablets the first time he approached the Honda and interacted with the occupants.
[38] During cross-examination, Cst. Raji recalled scrolling through Mr. Sivarasah’s criminal background and seeing that there were offences involving firearms. He testified that he would have updated the other two officers about this. He agreed that he had a safety concern. However, he denied that when he went back to the driver side door, he told Mr. Sivarasah that in light of his history of firearms and a weapons prohibition, he was going to search his car and that this was the reason for asking the men to get out of the car.
[39] In cross-examination, he acknowledged that when he saw the baggie, he asked both men what it was. He testified that he did not get a response or they said they did not know.
[40] He explained that his grounds for arrest were not solely based on the fact that there were four white tablets in the baggie. Rather, the grounds included the appearance of the baggie, the appearance of the tablets and the fact that no occupant was able to say that this was prescribed medication. Cst. Raji did not think they were vitamins.
[41] Cst. Raji denied that he had detained Mr. Baregzay when he asked for his identification. He asked him for his identification because he was interfering with his investigation of Mr. Sivarasah. He explained to Mr. Reisman during cross-examination that at that point of the stop, Mr. Baregzay could have simply walked away and gone home.
[42] Cst. Raji could not recall if Mr. Baregzay was on his phone. He acknowledged that other family members did eventually come to the scene, but he did not know how they came to learn that Mr. Baregzay had been arrested.
Cst. Dykxhoorn
[43] On January 16, 2016 he was training with Cst. Furlotte. He was the passenger in a cruiser that passed by Cst. Raji’s traffic stop between 7:30 and 7:45 p.m.
[44] Cst. Raji told the officers that the driver was possibly impaired. Cst. Dykxhoorn understood that Cst. Raji was going to be investigating the car.
[45] Cst. Dykxhoorn testified that he got out of the cruiser and all three officers approached the Honda. He stood to the rear to maintain officer safety.
[46] He overheard the males being placed under arrest for a CDSA offence. At the time of arrest, Cst. Raji was positioned at the front driver side window and Cst. Furlotte was at the front window passenger.
[47] He testified that Cst. Furlotte took Mr. Baregzay out of the car and his training officer asked him to take Mr. Baregzay to the sidewalk, about four to five feet away from the car.
[48] Cst. Dykxhoorn did not see the gun. He also did not see the baggie with the pills until he got to the police station.
[49] He agreed in cross-examination that Cst. Furlotte did not tell him to handcuff Mr. Baregzay. Cst. Dykxhoorn explained that Mr. Baregzay was being cooperative so there was no pat-down search and he was not placed in handcuffs. He testified that there were no officer safety concerns at this time.
[50] He disagreed in cross-examination that the arrest for the drugs happened after the arrest for firearms.
Cst. Furlotte
[51] On January 16, 2016 he was the training officer for Cst. Dykxhoorn. He testified that they were patrolling the area of McVean and Riverstone Drive and attended the location of Cst. Raji’s traffic stop to make sure he was fine. The officer testified that he did this at 7:40 p.m.
[52] When they got to the area, they spoke to Cst. Raji. Cst. Raji told him that he had stopped the Honda for impaired driving and that the driver was on charge for firearms and the passenger was on charges for CDSA.
[53] He followed Cst. Raji to the Honda and he approached the passenger side. Cst. Dykxhoorn stood behind him to the rear.
[54] Cst. Furlotte testified that Cst. Raji spoke to the driver and he could not overhear their conversation. Cst. Furlotte spoke to Mr. Baregzay. He testified that Mr. Baregzay appeared to him be very nervous. He testified that Mr. Baregzay was constantly looking around; he did not want to be there.
[55] While standing near the passenger door, he overheard Cst. Raji place both occupants of the car under arrest for possession of controlled substances.
[56] Cst. Furlotte told Mr. Baregzay to get out of the car. Once he got out of the car, he turned Mr. Baregzay over to Cst. Dykxhoorn. Cst. Furlotte then moved over to the driver side door and took custody of Mr. Sivarasah from Cst. Raji.
[57] The two men were taken away from the car, some distance away near a grassy area.
[58] Cst. Raji then searched the car. At one point, he notified the officers that he had found a gun.
[59] After hearing that a gun had been found, Cst. Furlotte immediately placed Mr. Sivarasah in handcuffs, searched him and placed him in Cst. Raji’s cruiser.
[60] He then went to check on Cst. Dykxhoorn. After that, he went to the car to see Cst. Raji and saw a handgun on the passenger seat.
[61] He did not initially see a baggie in Cst. Raji’s hand. However, Cst. Furlotte testified that he eventually saw it upon attending the car after the men were secured.
[62] Cst. Furlotte acknowledged during cross-examination that when he arrived at the scene, Cst. Raji advised him and Cst. Dykxhoorn that he had conducted checks on the driver and passenger and that the occupants had criminal records. In particular, Cst. Furlotte recalled that there was something about firearms related offences for Mr. Sivarasah.
[63] He agreed that he had no recollection of Cst. Raji saying anything or finding anything while he was standing at the passenger door. He explained that he was focused on Mr. Baregzay.
[64] Cst. Furlotte testified that Cst. Raji said both occupants were “arrestable” under the CDSA, but he had not been shown any drugs at this point.
[65] After hearing this from Cst. Raji, Cst. Furlotte arrested Mr. Baregzay from the passenger side. He admitted he did not put him in handcuffs or pat him down.
[66] He agreed that he then went to the driver side and took Mr. Sivarasah from Cst. Raji. According to Cst. Furlotte, Mr. Sivarasah was not handcuffed or patted down.
[67] Cst. Furlotte testified in cross-examination that it was not unusual for a pat down not to take place after an arrest. He went on to say it was common practice not to pat them down “at that point”.
[68] Cst. Furlotte denied that Mr. Baregzay was detained prior to Cst. Raji’s announcement that they should be arrested for a CDSA offence. He explained that Mr. Baregzay did not ask the officer if he could leave while he was seated in the car.
[69] Cst. Furlotte agreed that when he was watching Mr. Baregzay’s hands while seated in the passenger seat, he would have had a view of the centre console. However, he explained that he may have missed the baggie with the white pills because he was focused on Mr. Baregzay’s hands.
Surenthar Sivarasah
[70] Mr. Sivarasah testified that they were traveling to Mr. Baregzay’s home after having bought cigarettes at the Hasty Market.
[71] The Hasty Market is in the same plaza as a Tim Horton’s. Mr. Sivarasah saw a police cruiser parked in the lot. He explained that he does get nervous around police officers because has been arrested over 15 times. He explained that as he was travelling southbound on McVean Drive, he saw the officer on the next lane approach and pull up beside him.
[72] He denied driving erratically and testified that he drove the posted speed limit. He testified that at one point he stopped at a red light and he noticed the police cruiser beside his car.
[73] After they proceeded through the intersection, he attempted to move over in order to make a left hand turn at a street that he was approaching. However, as he tried slowing down the police car also slowed down. He then picked up speed, overtook the police car and got into the left hand turn lane.
[74] As soon as he was pulled over, he got his license and registration ready.
[75] Cst. Raji approached and asked them where they were going and had he been drinking.
[76] He told the officer that he had a cold and was losing his voice.
[77] He testified that at one point, Mr. Baregzay and the officer were speaking a different language.
[78] Mr. Sivarasah testified that Cst. Raji took his and Mr. Baregzay’s identification. When the officer came back, officers arrived on both sides of the car. Cst. Raji asked him if he had a weapons ban. Mr. Sivahrasah told him he did not have any weapons.
[79] When Cst. Raji told him he was going to search the car, he told Mr. Sivahrasah that this is a traffic stop. Mr. Sivahrasah told the officer he should not be searching his car.
[80] He claimed he and Mr. Baregzay left the car and he was handed over to Cst. Furlotte. They stood by the grassy area.
[81] Mr. Sivahrasah denied that there was a baggie and pills in the centre console.
[82] During cross-examination, he testified that he did not know where the pills came from.
[83] Mr. Sivahrasah testified that he was seated in the cruiser when he heard that they had found pills. He had already been arrested for the gun charge.
[84] He testified that Cst. Raji had informed him that he was on a weapons prohibition and that he was going to search the car. However, during cross-examination, when he was pressed as to the exact words that Cst. Raji used, he testified that Cst. Raji asked him if there were any weapons in the car because he had a “condition”.
[85] He denied there were pills in the car. He never saw pills. He testified that there were no drugs in the car and he did not need Xanax.
Tamim Baregzay
[86] Mr. Baregzay testified that he was a passenger in the Honda and that evening he had called Mr. Sivarasah to give him a ride to the store. At the time, he had a suspended driver licence.
[87] He was picked up and driven to the Hasty Market.
[88] While they were at the store, he saw a police officer in his cruiser parked adjacent to them.
[89] He testified that this officer was Cst. Raji.
[90] He testified that as they proceeded back to his home southbound on McVean, Mr. Sivarasah was not driving erratically.
[91] He confirmed that when Cst. Raji first spoke to them he asked them if they had been drinking.
[92] He testified that he started speaking Farsi and told him he was friends with Mr. Sivarasah. At the time he was stopped he was also on the phone with his mother. He had called his mother because he had to go to a party for his nephew. He was running late and he was on speaker phone.
[93] He testified that he was nervous, agitated and he had to get to the party. He told Cst. Raji that he had to get home and that he lived around the corner. He testified that Cst. Raji told him he needed identification. He told him he had a health card and Cst. Raji told him that was acceptable.
[94] He explained that Cst. Raji told him he could not leave until he did a check on his identification.
[95] Cst. Raji went back to his cruiser. After about 5-10 minutes, he saw flashlights approaching the car. Cst. Furlotte asked him to roll down the passenger window.
[96] Cst. Raji was at the driver window. Cst. Furlotte told him they needed to search the car.
[97] He asked the officer why he had to wait around. He testified that Cst. Furlotte told him to give them a few minutes to search the car and then he would be let go.
[98] They were both taken out of the car.
[99] While he was standing with Cst. Dykxhoorn, he heard that a gun was found and the officer arrested him. He was arrested and everything in his pockets were taken out.
[100] He had a marihuana grinder on him and that was seized.
[101] He testified that he did not see pills in the car, he had no pills on him and he did not bring pills into the car. The first he heard about pills was at his bail hearing.
[102] In cross–examination, he acknowledged that he asked his mother to come pick him up and she was going to come and get him from the scene. He explained that he was running late for the party and had called his mother.
[103] He explained that he initially did not feel detained because there was no reason to be worried, but he was a bit nervous.
[104] However, he explained that when he asked to leave, Cst. Raji told him he could not until he checked his identification. He had this conversation with him when he was speaking Farsi. He explained that Cst. Raji told him not leave the car and he assumed that once his identification was checked, he would be let go.
[105] In re-examination, he testified that Cst. Raji specifically told him he could not leave when he was talking to him in Farsi. He explained that the officer said not to worry, he did not smell liquor and that he had to do a quick check on his identification.
Analysis
[106] The relevant legislation and leading jurisprudence on these motions is not in dispute. It is comprehensively and thoroughly set out in Ms. Sibian’s written materials.
The Decision to Stop the Car
[107] On this record, I take no issue with Cst. Raji’s decision to stop the car being driven by Mr. Sivarasah.
[108] As the Crown points out, the police have a general duty to preserve peace, prevent crime and protect life and property. This is codified under s. 42 of the Police Services Act, R.S.O. 1990, c. P.15 and s. 48 and s. 216 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”). The HTA authorizes vehicle stops for highway regulation and safety purposes and allows police to conduct stops to pursue drinking and driving investigations. These provisions are designed to detect, apprehend and, most importantly, deter drunk drivers. As a consequence, random roadside detentions are permitted.
[109] Counsel for the accused argue that the initial traffic stop was a pre-text stop right from the beginning. I do not accept that submission.
[110] First, Cst. Raji was steadfast in his testimony regarding the reasons for the stop. I acknowledge that he did not make a note of the Honda cutting in front of him. However, this is essentially confirmed by Mr. Sivarasah who testified that he did have to pull in front of and across the cruiser to get to the left hand turn lane. The following factors, cumulatively, support the officer’s decision to stop the car:
(a) it was travelling slowly; (b) it appeared to cut in front of the cruiser; and (c) there was no traffic in front of it that justified the car’s slow speed.
[111] Second, the testimony of Mr. Sivarasah on his manner of driving makes no sense. I acknowledge that, from Mr. Sivahrasah’s point of view, there is an argument that he was probably driving slowly because he did not want to overtake a police cruiser. Since the officer was pacing him, slowing down did not help and he had to cut him off in order to make a left hand turn.
[112] When I examine the purpose for making the left hand turn, I reject this argument. Mr. Sivarasah testified that he had to be told by Mr. Baregzay that a left turn was coming up and that is why he had to change lanes to get into the left turn lane. However, Mr. Sivarasah had just picked up Mr. Baregzay to go to the nearest convenience store to pick up cigarettes. He had previously been to Mr. Baregzay’s house and knew where he lived. It seems more logical that Mr. Sivarasah would have known exactly where he had to make a left hand turn instead of having to turn left suddenly because he was being directed by Mr. Baregzay where to turn. In my view, this testimony was designed to provide a contrived answer during cross-examination. This appeared to me to be a contrived explanation as to why he cut in front of the cruiser. I accept the evidence of the officer that Mr. Sivarasah was driving slowly and that he cut in front of him, and that this raised safety concerns for Cst. Raji.
[113] It follows that the stop was lawful. It also follows that the initial exchange with Mr. Sivarasah, wherein he was asked questions consistent with an investigation for impaired driving, was lawful. He was authorized to ask for the production of Mr. Sivarasah’s documentation as the driver.
The Request for Mr. Baregzay’s Identification
[114] I take a different view of the request for Mr. Baregzay’s identification. I have reviewed Cst. Raji’s evidence carefully and there appears to me to be no justification for this request. Although Cst. Raji testified that his investigation of Mr. Sivarasah was interrupted by Mr. Baregzay, I did not understand him to be making a request for his identification for the purpose of investigating him for an obstruction charge. On the officer’s own evidence, he told Mr. Baregzay that he was dealing with the driver, not him, and that he asked for identification simply to stop Mr. Baregzay from interfering with his investigation. It is not clear to me how running a check on Mr. Baregzay’s identification would advance the investigation of the driver for impaired driving.
[115] The Crown argues that asking for Mr. Baregzay’s identification did not violate s. 8 because he was not detained up to the point of his arrest. I agree with Ms. Sibian, that the jurisprudence holds that whether or not a passenger is detained during an HTA vehicle stop demands a fact-specific inquiry.
[116] Ms. Sibian asks me to accept the Cst. Raji’s evidence that Mr. Baregzay was interrupting him incessantly during his investigation of the driver. The Crown argues that Cst. Raji assured Mr. Baregzay several times that he was investigating the driver. As such, the Crown argues, Mr. Baregzay was neither physically nor psychologically detained.
[117] I am unable to accept this submission. There is no dispute that Cst. Raji had a conversation with Mr. Baregzay during the early moments following the stop. At some point during that conversation, he requested and seized Mr. Baregzay’s health card. There is no dispute that he took the identification to the cruiser and ran some type of search on the name, because he learned that Mr. Baregzay had a CDSA charge.
[118] Mr. Baregzay claims he asked if he could leave because he lived around the corner but that he was told by Cst. Raji that he had to check his identification first and then he could leave. I accept this evidence.
[119] Therefore, I accept that Mr. Baregzay was detained when he was told he could not leave until his identification was checked. He continued to be detained when the officer asked him for identification and he relinquished it to him. While there is some support for the argument that a passenger is not automatically detained as a result being asked for identification (see R. v. Frank, 2012 ONSC 6274 ,[2012] O.J. No. 5242 per Code J. at para. 47), the facts of this case amount to more than merely asking a passenger for identification. In this case, there was a direction that he could not leave and a demand for identification followed by a seizure of the identification.
[120] Critically, I also accept that Mr. Baregzay was told that he could not go until his identification was checked. While I accept that there is some conflict in the evidence because, according to Mr. Baregzay, he called his mother to come and get him from the scene, this does not mean that Mr. Baregzay did not ask to leave. Calling his mother to come to the scene is not necessarily inconsistent with a request to leave the scene of the stop.
[121] Mr. Baregzay was detained at the moment he was asked for his identification and told he could not leave until his identification was checked. I am satisfied that when Cst. Raji took his identification back to the cruiser, Mr. Baregzay was detained.
[122] On the authority of R. v. Harris, 2007 ONCA 574 , 225 C.C.C. (3d) 193, asking Mr. Baregzay for his identification while he was detained attracts s. 8 protection. There was no basis for his continued detention and no basis to conduct a search on his identification using the police query tool (PQT) in the police cruiser.
[123] Therefore, I find that Mr. Beragzay’s s. 8 and s. 9 Charter rights were breached.
The CDSA Arrest
[124] When Cst. Raji returned to the cruiser with Cst. Furlotte and Cst. Dykxhoorn, what started off as a routine traffic stop transformed into a purported drug investigation. I agree with the Crown’s submission that a roadside stop is not a static event and information as it emerges may entitle police to proceed further. The crucial question in this case, having found that the stop was for a valid traffic purpose, is whether the officer was entitled to search the vehicle.
[125] For s. 8 purposes, the presumption is that a search should be authorized by a warrant before the search is conducted. However, this rule is subject to several exceptions, including circumstances in which the Crown can demonstrate that a search, while warrantless, is nonetheless reasonable. There is no question here that the search was warrantless. The authority relied on by Cst. Raji is the police power to search incident to an arrest.
[126] Briefly, at common law, the police are empowered to search incident to a lawful arrest. The search must be conducted for a valid purpose and must be carried out in a reasonable and proportionate fashion. The officer need not have reasonable grounds to believe the weapons or evidence will be found. However, there must be an articulable nexus between the nature of the search and the offence for which the detainee was arrested.
[127] A lawful search incident to arrest presumes that the individual searched has been lawfully arrested. The Crown argues that Cst. Raji had the requisite grounds based on the constellation of all the factors at play to execute the arrest.
[128] I disagree.
[129] Assuming that I accept Cst. Raji’s evidence on his observations when he returned to the car, in my view, he did not have reasonable grounds to arrest both occupants for a CDSA offence.
[130] Upon his return to the vehicle after checking the documentation, I do not quarrel with the Crown submission that Cst. Raji was entitled to do a cursory cabin check of the vehicle with his flashlight.
[131] As I understand his evidence, upon noticing a clear baggie with white pills he asked both occupants what was in the baggie. There was either no response or both men claimed not to know. Importantly, the officer then directed Mr. Sivarasah to hand him the baggie for further inspection. Once he examined the baggie, he arrested both occupants for a CDSA offence.
[132] The Crown argues that because there was no valid prescription, no claim as to ownership, the tablets were in a plastic bag (as opposed to a prescription bottle) and they could be seen in the centre console, the officer had sufficient grounds to arrest both individuals for possession of a controlled substance.
[133] In my view, there are a number of fundamental problems with this submission.
[134] First, I am not sure what justification there was for making a demand of the driver to turn over a baggie so that the officer could examine it. It seems to me that the demand to turn over the baggie was an unlawful search. Cst. Raji may have had a suspicion when he saw the pills at the console that something was not right. However, this did not authorize him to direct that the baggie be turned over for closer inspection. At this point, he had not arrested the accused. He had no authority to seize the baggie for evidence seeking purposes.
[135] Second, it is unlikely, on this record, that the baggie and tablets caused the officer any safety concerns. The nature of the object was not such that it caused him to believe on reasonable grounds that it posed a threat to his safety or others and that the seizure of the baggie was required (See generally: R. v. MacDonald, 2014 SCC 3 , [2014] 1 S.C.R. 37 at para. 41 for the power to search pursuant to an investigation detention).
[136] Third, I note that this evidence was obtained when both men were detained, had not been given right to counsel, and had the right to silence. Both men were apparently detained for an impaired driving investigation, not a drug investigation.
[137] Further, Cst. Raji cannot rely on the plain view doctrine or s. 489 of the Criminal Code. The nature of the item was not plainly obvious, as he testified that he asked for the baggie to be handed to him and then examined it. Again, Cst. Raji agreed that, on its own, white tablets in a baggie did not afford evidence of a criminal offence. It is only after seizing the baggie and taking a closer look at the tablets that he decided to arrest the accused.
[138] Therefore, even if I were to accept Cst. Raji’s evidence the arrest was unlawful.
[139] In any event, I prefer the evidence of the accused on this point and I do not accept the officer’s evidence that this baggie with white tablets was in plain view. I say this for the following reasons.
[140] First, it defies common sense that the men would leave a purported controlled drug in a baggie out in plain view in the console that was easily accessible to them when they were pulled over. Even if I were to assume that Cst. Raji did not see the baggie during his initial encounter because he was not using a flashlight, there was ample time to ensure that this baggie was not in plain view after the officer went back to the cruiser to check their identification. There is no evidence that any of the men were intoxicated. It would seem to me as a matter of common sense that the men had ample time to hide the baggie and the tablets while Cst. Raji went back to his police cruiser with their identification. The fact that they did not attempt to hide it is very peculiar.
[141] Second, Cst. Furlotte did not hear Cst. Raji say anything to the occupants when he was at the passenger window and dealing with Mr. Bargezay. I note that the windows were rolled down. This is inconsistent with Cst. Raji’s evidence that both men were asked about the baggie and the tablets. It makes no sense to me that Cst. Furlotte would not have heard Cst. Raji’s questions directed at all occupants if this request in fact took place. I take into account where Cst. Furlotte was standing and how far he was standing from the passenger side window. There is no evidence that he was carrying on much of a conversation with Mr. Baregzay. Indeed, in cross-examination, he told Mr. Reisman he was singularly focused on Mr. Baregzay’s hands.
[142] Third, Cst. Furlotte testified that he did not see any drugs in the middle console and only saw the drugs after Cst. Raji had found the gun. If Cst. Raji had initially observed the drugs in plain view, I find it hard to accept that Cst. Furlotte would not have also seen the drugs initially through the passenger window or at the very least when he went around to the driver side door to take custody of Mr. Sivarasah. Instead, the evidence from Cst. Furlotte is that he did not see the drugs until Cst. Raji had also seized the firearm incident to the arrest for the drugs.
[143] I also note that Cst. Dykxhoorn did not see any drugs at the scene and was only shown the drugs at the police station.
[144] Finally, the description of the arrest of both men by the officers is troubling and lacks credibility. On the police version, Cst. Furlotte testified that he heard Cst. Raji say that both men were arrestable for CDSA. Having heard that, Cst. Furlotte testified that he ordered Mr. Baregzay out of the car. However, for reasons that are not apparent to me, the officer did not pat him down or handcuff him. He merely turned him over to Cst. Dykxhoorn. Cst. Dykxhoorn testified that he did not pat down Mr. Baregzay or handcuff him. That officer testified that there was no need to handcuff him because he was “friendly” and “cooperative” and there were no officer safety concerns.
[145] Cst. Furlotte testified that when he went around to the driver side door, he did not pat down Mr. Sivarasah or handcuff him. He took custody of Mr. Sivarasah and then accompanied him to a grassy area.
[146] All of this is very peculiar given the evidence from Cst. Raji and Cst. Furlotte that in the moments leading up to the arrest, Mr. Baregzay was nervous and they were concerned about him. As I understand it, up to the point of arrest, Mr. Baregzay was nervous, agitated and fidgety. Cst. Furlotte testified he was focused on his hands because he was nervous and that his nervousness was “heightened”. The officers were also aware that the occupants had some involvement with the criminal justice system.
[147] If this was the state of affairs and a lawful arrest for CDSA had taken place, I ask rhetorically why did the officers not pat Mr. Baregzay down or handcuff him once he was placed under arrest?
[148] When this proposition was put to Cst. Furlotte by Mr. Wine, his answer was that it was not unusual for a pat down to take place or the handcuffing of an arrestee not to occur. I find this answer to be incredible. Indeed, Cst. Furlotte described no pat-down and the lack of handcuffs as a common practice “at that point”. I have no idea what Cst. Furlotte meant when he testified “at that point”. Furthermore, as a trial judge who has previously listened to a number of police officers give testimony about the procedures for arresting a suspect, the assertion that it is common practice not to pat down an arrestee upon arrest once that person is secured is a startling proposition. It is my experience that a pat down of an arrestee usually follows a lawful arrest. I find it unusual that Mr. Baregzay was not patted down after the arrest for the CDSA offence, if it occurred at all.
[149] With respect to Mr. Sivarasah, Cst. Raji testified that he did a search of Ms. Sivarasah with Cst. Furlotte upon arresting him. However, Cst. Furlotte did not recall doing a pat down search and placing him in handcuffs. Rather, Cst. Furlotte testified that he did not place him in handcuffs until he heard Cst. Raji call out “gun” when he discovered the gun. It also seems peculiar to me that Cst. Furlotte did not observe a baggie with tablets when he took custody of Mr. Sivarasah from Cst. Raji.
[150] I do not accept this evidence. It seems to me that given the knowledge that they had about Mr. Sivarasah’s prior involvement with the criminal justice system, he would have been patted down and placed in handcuffs immediately after he had been arrested for the CDSA offence.
[151] The fact that no pat down and no handcuffs were used on the two men when they exited their vehicle is consistent with their evidence that they were told to simply exit the car because it was going to be searched. I prefer their evidence on this point.
[152] It is likely that the reason they were not patted down and not placed in handcuffs and told to stand with two officers in a grassy area while Cst. Raji searched the car was because they were never arrested until a gun was found. If a gun, drugs or weapon had not been found, the men would have been permitted to be on their way.
[153] While I do not accept the assertion made by both men that there were no tablets in the car, I accept their evidence as to the nature of the search of the car without reservation.
[154] It is my view, upon his return to the Honda, Cst. Raji was intent on searching the car. At that point the officer had knowledge that the driver had weapons charges and Mr. Bergazay had a drug charge. He was acting on a hunch and I accept that he told the driver that the car had to be searched. Mr. Sivarasah and Mr. Baregzay were told to exit the car, and Cst. Raji proceeded to search it while the other two officers took custody of the two men.
[155] Cst. Raji violated Mr. Sivarasah’s s. 8 Charter rights.
Summary of Findings
[156] First, I am satisfied that the initial detention of the car was not arbitrary.
[157] Second, the police went beyond what was permissible in continuing to detain Mr. Baregzay while investigating Mr. Sivarasah for an impaired driving offence. Mr. Baregzay was arbitrarily detained at the scene during the entire encounter with the police. The request for his identification constituted a “search and seizure” for s. 8 purposes and was made without any lawful authority.
[158] Third, in this case, I do not find that there was an arrest prior to the search. Alternatively, even if I were to accept the evidence of the police, Cst. Raji did not have reasonable grounds to arrest both men under the CDSA. It is for the Crown to prove on a balance of probabilities that the warrantless search was lawful. In order to validate a search incident to arrest, the arrest upon which it precipitates must be lawful. There was no initial arrest for a CDSA offence. However, even on Cst. Raji’s evidence, the arrest, if it did occur, was unlawful.
[159] Fourth, while I do not accept some of the evidence of the accused, I prefer their version of what occurred at the scene during the traffic stop. I do not believe their evidence when they suggest that there were no tablets in the car. However, I accept that Mr. Baregzay was told to remain at the scene without any lawful authority. I also accept that they were both told to exit the car so that it could be searched. Indeed, I am inclined to accept the position of Mr. Wine and Mr. Reisman that Cst. Raji was working on a hunch, as a result of information he learned during his check on the identification. That hunch, no doubt, proved to be correct. However, he had no reasonable and probable grounds to arrest both occupants or to search the car. Therefore, the seizure of the gun was unlawful.
Remedy: 24(2) Grant Factors
[160] Having found breaches of their constitutional rights, I now turn to the issue of remedy. Both men argue that a balancing of the relevant factors in a section 24(2) analysis as mandated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 inevitably leads to exclusion of the seized gun at trial. The Crown opposes this submission and points out that to exclude this gun effectively terminates the prosecution.
[161] Under the approach articulated in Grant, the Court must consider (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the Charter-protected interests of the accused; and (iii) society’s interest in the adjudication of the case on its merits. The onus is on each accused to demonstrate that admission of this gun would put the administration of justice into disrepute.
[162] What follows is a separate 24(2) analysis for each accused.
Mr. Sivarasah
Seriousness of the Charter-infringing State Conduct
[163] The first component of the Grant analysis requires a review of what the police did and their attitude when they did it. The Court must then place the conduct along a continuum of misconduct.
[164] This investigation commenced in a routine manner. Cst. Raji was justified in stopping the car. As the investigation progressed, however, it turned into a serious violation of Mr. Sivarasah’s Charter rights.
[165] I do not accept that Cst. Raji saw the baggie in the centre console of the car. Moreover, even if I gave him the benefit of the doubt and agreed that he did see the baggie and white tablets, he had no authority to inquire whether they had knowledge of the drugs or demand that they be given to him. It is my view, that the antecedents of each accused did in fact cloud or prejudice his investigation because he had a hunch. I am inclined to accept the submission that the car was going to be searched further to that hunch. This conduct, when evaluated on the spectrum of seriousness, falls on the very serious end of the spectrum. It is deliberate and demonstrates bad faith during the course of this investigation.
Impact of the Breach on the Charter-Protected Interests on Mr. Sivarasah
[166] The search was conducted on the car that Mr. Sivarasah was driving. I am prepared to accept that the reasonable expectation of privacy in a car is not as high as a home. That being said, he was unlawfully detained by the police while his car was being searched. There was no basis to search the car pursuant to an impaired driving investigation. Mr. Sivarasah should have been permitted to leave once the impairment investigation was complete. As such, the impact on Mr. Sivarasah’s Charter-protected interests is significant.
Society’s Interest in the Adjudication of the Case on its Merits
[167] The third criterion identified in Grant overwhelmingly calls for admission of the gun. The gun is real evidence and as such constitutes highly reliable evidence unaffected by any breach. This evidence forms the entirety of the Crown’s case. As in Grant, its exclusion would “gut the prosecution.” Given the seriousness of the offence, the public interest in the adjudication of this case on its merits is high. Exclusion of this evidence would undoubtedly bring the administration of justice into disrepute.
[168] In weighing these considerations, I am very much aware of the scourge of gun crimes and the effect that such crimes have in our society. Excluding this gun would cause some members of the public to question the criminal justice system. However, the jurisprudence from the Supreme Court of Canada has held that the seriousness of the crime has the potential to cut both ways. Indeed, the Supreme Court of Canada has held that a reasonable member of the public “has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high”. (Grant , supra , at para. 84 ; see also Doherty J.A.’s comments in R. v. McGuffie, 2016 ONCA 365 , 348 O.A.C. 365, at para. 63 : “…If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility…”; see also R. v. Paterson, 2017 SCC 15).
[169] Admitting the evidence of the gun would bring the administration of justice into disrepute. The seriousness of the breaches, especially the absence of any authority to search the car and the arbitrary detention, favours exclusion of the gun and outweighs society’s interest in deciding the case on its merits.
[170] There was no basis to search the car and no basis to keep Mr. Sivarasah on the scene once the impaired investigation was complete. What started out as a permissible investigation became a fishing expedition for weapons. The Court must disassociate itself from this conduct.
Mr. Baregzay
Obtained in a Manner
[171] As a preliminary matter, I must decide whether Mr. Baregzay has standing to advance a s. 24(2) argument. Mr. Reisman quite properly concedes that Mr. Baregzay did not have standing to advance a s. 8 claim against the search of the car. It is that search that led to the seizure of the gun. However, this does not end the issue. The relevant question is whether the firearm was “obtained in a manner” that infringed or denied Mr. Baregzay’s rights guaranteed under the Charter.
[172] I am satisfied that Mr. Baregzay’s rights were violated at the scene. He was subjected to an arbitrary detention and his s. 8 rights were violated when a search was conducted using his name on the PQT in Cst. Raji’s cruiser. He should have been permitted to leave the scene. The Crown in this joint prosecution wishes to tender the firearm against him during trial. Therefore, in my view, while Mr. Baregzay does not have standing to argue that his client’s s. 8 rights were violated when the police searched the car, he does have standing to advance a s. 24(2) claim to exclude the gun based on my understanding of the jurisprudence.
[173] In R. v. Pino, 2016 ONCA 389 , 130 O.R. (3d) 561, at para. 72 , Laskin J.A. recently held that the following considerations should guide a court’s approach to the “obtained in a manner” requirement in s. 24(2):
- The approach should be generous, consistent with the purpose of s. 24(2)
- The court should consider the entire “chain of events” between the accused and the police
- The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct
- The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
- But the connection cannot be either too tenuous or too remote.
[174] In my view, there is a temporal and contextual basis to permit Mr. Baregzay to advance a s. 24(2) remedy. Mr. Baregzay was a passenger in a car that was stopped. He was told not to leave the scene and his identification was checked. Before he was released and his identification returned to him, the police discovered a gun on the basis of a search. The two Charter breaches are part of the same transaction that led to the seizure of the gun. The discovery of the gun is bookended between the unlawful detention and an unlawful arrest that occurred while he was standing in the grassy area with Cst. Dykxhoorn.
[175] In my view, the connection between the seizure of the gun and the Charter breaches is both temporal and contextual, and is neither too tenuous nor too remote. The connection is temporal because the breaches are relatively close in time and part of the chain of events that led to the discovery of the gun and ultimately to Mr. Baregzay’s unlawful arrest.
[176] The breaches are also “contextual” to the discovery of the gun. The breaches preceded the discovery of the gun and his arrest arose out of it. In short, the breaches of Mr. Baregzay’s rights formed “part of the context” in which the seizure of the gun occurred.
[177] I also observe that s. 24(2) of the Charter provides that “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” (emphasis added). Having regard to all of the circumstances and resisting the urge to analyze the police conduct frame by frame, I conclude that Mr. Baregzay may advance a s. 24(2) remedy.
[178] I will not repeat my findings that I made in the s. 24(2) analysis for Mr. Sivarasah. Much of the evidence overlaps and where the evidence does overlap, I make the same findings in relation to Mr. Baregzay.
Seriousness of the Charter-infringing State Conduct
[179] Again, this investigation commenced in a routine manner. Cst. Raji was justified in stopping Mr. Sivarasah in light of the concerning driving he witnessed. As the investigation progressed, Cst. Raji was entitled to assess all the information he was collecting during his initial dealings with Mr. Sivarasah to determine if he was impaired by alcohol or by drug. Cst. Raji had a legitimate reason to detain Mr. Sivarasah at each stage in this dynamic, unfolding investigation.
[180] However, he had no lawful authority to detain Mr. Baregzay at the scene. Nor, did he have any lawful authority to ask for his identification. In my view, this was a serious violation. The officer was not a junior officer such as Cst. Dykxhoorn who was training that evening. The law in this area has existed now for at least ten years (i.e. R. v. Harris , supra , was decided in 2007). The officer’s conduct, when evaluated on the spectrum of seriousness, again falls on the high end. It was deliberate misconduct during the course of this investigation.
[181] Mr. Reisman also argues that this case involves a situation in which the police overstepped the law in several instances evidencing a pattern of disregard of Charter rights of both men. He argues that I should look at the violation of Mr. Sivarasah’s rights in assessing the seriousness of the conduct of the police against Mr. Baregzay. I agree with this submission.
[182] These breaches did not occur in a vacuum, and they occurred in the context of a relatively straightforward impaired driving investigation which led to the violation of rights of both men. In my view, I am permitted to have regard to all of the breaches committed during this transaction, both in placing the seriousness of the individual breaches in context, and, more particularly, in determining whether this pattern of disregard of the Charter by the police could bring the administration of justice into disrepute. (see: R. v. Lauriente, 2010 BCCA 72 , 251 C.C.C. (3d) 492 and the review of this line of authority by Dawson J. in R. v. Merritt , (11 April, 2017), Brampton CRIMJ(P) 1459/16, (unreported reasons currently under publication ban) (Ont. Sup. Ct.).
Impact of the Breach on the Charter-Protected Interests of Mr. Baregzay
[183] The search conducted here was a result of an unlawful arrest. The baggie with a controlled substance was not in plain view. Mr. Baregzay was forced to wait at the scene under the custody of police officers while the search of the car took place. He had previously asked if he could leave and told that he could not leave until his identification was checked. Cst. Raji took control of his movements and identification early on during the encounter. In my view, there was no basis for keeping him at the scene, and as such, the impact on his Charter-protected interests was extensive.
Society’s Interest in the Adjudication of the Case on its Merits
[184] As I have pointed out above, the third criterion identified in Grant overwhelmingly militates in favour of admissibility of the firearm in this case.
[185] A traffic stop that results in the detention of more than one occupant in a car is an almost daily occurrence. However, in this case, the police overstepped their lawful authority to keep Mr. Baregzay at the scene by a very wide margin. There was absolutely no basis for his detention, the seizure of his identification and the check on his identification. Again, I appreciate that society will look at the fact that I have excluded a gun and terminated this prosecution with some concern. However, as I have noted, I must also recognize society’s concerns that police misconduct should not appear to be condoned by the courts, and that a passenger’s rights must be taken seriously. The consequences to those whose rights have been infringed are particularly serious. There was no basis to keep Mr. Baregzay on the scene. Yet, as a result of being subjected to an unlawful detention and search, Mr. Baregzay now faces a most significant firearm charge. I agree with Mr. Reisman that a disregard of his constitutional standards would, if the evidence were admitted, bring the justice system into disrepute.
Conclusion
[186] The gun seized by Cst. Raji on January 16, 2016 is excluded against both accused.
[187] I thank counsel for their assistance.
Coroza J.
Released: June 9, 2017
Footnote:
[1] Mr. Baregzay also raised an issue about the voluntariness of his statement at the booking area of 21 Division. On June 1, 2017 I held that Mr. Reisman was in effect arguing issues of weight, not admissibility. I have reviewed my reasons for ruling on June 1, 2017. I will not release any further written reasons on this issue. The Crown also raised an issue about the admissibility of a photograph of a gun captured on Mr. Baregzay’s cellphone. Mr. Baregzay opposed the admissibility of this photograph. In light of the result of this trial, that issue has been rendered moot.