CITATION: R. v. Masjedee, 2017 ONSC 4920

COURT FILE NO.: CR-15-74

DATE: 2017/10/10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

WAHIDULLAH MASJEDEE

Defendant

L. Van Gorder, for the Crown

G. Clark, for the Defendant

HEARD: August 16, 2017

Ellies j.:

[1] The accused, Wahidullah Masjedee, is charged with three offences under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. All of the charges relate to a quantity of cocaine that was found in a vehicle he was operating, after he was arrested for trafficking in a controlled substance. The arrest was made following what the Crown contends was a routine traffic stop made by an officer of the Mattawa OPP on April 25, 2015.

[2] The accused applies to exclude the drugs under s. 24(2) of the Charter on the basis that his rights under ss. 8 and 9 of the Charter were infringed by the stop, by his arrest, and by what took place in between.

[3] These reasons explain why I agree that the accused’s rights under those sections were infringed and why the drugs must be excluded as a result.

FACTS

[4] The only witness called during the hearing of the application was the arresting officer, Constable Bond. He testified that he had been with the OPP for about 13 years and was in a marked police cruiser performing general law enforcement duties on the day in question. At about 11:47 a.m. that day, he was travelling eastbound and was just west of Rutherglen when he saw a white Dodge Avenger travelling in the other direction. The officer turned his cruiser around to follow the vehicle. He testified that he had formed an intention at that time to perform a routine traffic stop of the vehicle under the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”) in the interests of public safety.

[5] The evidence shows that, after he turned his cruiser around, the officer contacted the OPP communications center. He provided the dispatcher with the license plate number of the vehicle he was following and requested information on the vehicle. The dispatcher advised him that the vehicle was a rental, that it had been rented in Toronto, and that the vehicle was a “10-60”, meaning that there was nothing of concern about it.

[6] The officer testified that, after he turned his cruiser around and before he stopped the rental vehicle, he observed the vehicle to swerve slightly within its lane to a distance of approximately one foot from the center line. This evidence will figure prominently in my decision for reasons which I will soon explain.

[7] After both vehicles were brought to a stop, the officer approached the accused and asked him for his driver’s license, ownership for the vehicle, and proof of insurance. The accused provided him with a valid Ontario photo driver’s license and documentation for the vehicle. Although he did not recall exactly when, the officer testified that, at some point, he also asked the accused to produce the rental contract for the vehicle, which he did.

[8] While the officer inspected the documentation at the roadside, he engaged the accused in conversation. The accused advised that he was travelling to Calgary to see his sister. While speaking with the accused, the officer noticed that his eyes were quite red, but he testified that he exhibited no signs of impairment. The officer concluded from this that the accused was most likely just tired. The accused also seemed agitated and somewhat stressed. In addition, the officer noted a coffee cup and an ice cappuccino cup in the centre console, a canister of body spray on the floor of the vehicle, and a water bottle on the passenger seat. The officer testified that he felt he could detect a faint odour of marijuana and of something that smelled like detergent within the vehicle, but that these smells were obscured by the smell of the body spray.

[9] The officer testified that the accused’s information that he was travelling to Calgary was at odds with the information contained in the rental agreement. The rental agreement showed that the car had been rented in Toronto at 5:50 p.m. the day before and that it had to be returned there a few days after the traffic stop. It seemed improbable to the officer that the accused would have time to travel all the way to Calgary and be able to have a meaningful visit with his sister in such a short time frame. It also bothered the officer that, although the car had been rented in Toronto late in the afternoon the day before, it was travelling on the highway from Ottawa at the time it was stopped.

[10] After he took possession of the accused’s documents, the officer returned to his cruiser. He requested that the dispatcher provide him with information regarding the accused. The dispatcher advised him that a CPIC check indicated that the accused had a criminal history, including convictions entered in Calgary for drug offences.

[11] The officer testified that, at that point, he had a suspicion that the accused was involved in drug trafficking. Although none of the circumstances by themselves meant much, collectively he felt that the fact that the accused was operating a rental car (rather than his own vehicle, which might be seized), consuming caffeinated beverages (to stay awake while driving long distances), using body spray (to mask odours), was nervous and had (apparently) lied about his travel plans, gave rise to a suspicion that the accused was a drug courier. Importantly, however, he testified that he did not feel he had reasonable and probable grounds to arrest the accused at that time.

[12] Accordingly, when the officer returned the documents to the accused he told him that the traffic stop was over and that he was free to go. However, he also told him that he had a few questions for him and that answering them was “voluntary”. The officer testified that he did this because he felt the need to “disconnect” from the traffic stop that had been initiated under the HTA.

[13] The officer then proceeded to ask the accused again about his travel. He questioned him “about Ottawa”. The accused answered that he had gone to Ottawa to see family. The officer asked the accused again where he was headed and the accused again responded that he was travelling to Calgary. Neither of these answers seemed likely to the officer because of the time and distances involved.

[14] At this point, the officer arrested the accused for drug trafficking. He proceeded to search the car as an incident to the accused’s arrest and located approximately 1.25 pounds of cocaine in what the officer vaguely recalled as being a small suitcase.

[15] The present charges were the ultimate result of the arrest and the search.

ISSUES

[16] The accused argues that his Charter rights were infringed in a number of ways during the events that led up to his arrest and the discovery of the drugs. I suggested to counsel at the outset of the hearing that the application raised the following issues:

(1) Was the initial traffic stop lawful?

(2) If the stop was lawful, did it become unlawful when it was used to conduct a criminal investigation?

(3) Was there an unreasonable seizure of the rental agreement?

(4) Was there an unreasonable search or seizure when the accused was asked about his travel plans while the officer was inspecting his documents?

(5) Was there a valid waiver by the accused when he answered the questions put to him after he was told he could leave?

(6) Did the officer have reasonable and probable grounds to arrest the accused when he did?

(7) If there were Charter breaches, should the drugs be excluded as evidence under s. 24(2) of the Charter?

[17] Although both counsel were kind enough to agree with my suggested list of issues, in fact, however, counsel for the accused also alleged in his application that his client’s right to counsel under s. 10 of the Charter was infringed when the officer asked the accused about his travel plans after telling him that the traffic stop was over. Having had an opportunity to fully consider the matter, I believe that I ought to have included this issue in the list set out above. However, given my conclusion that there were numerous other breaches and that the evidence must be excluded as a result, the issue of a breach of s. 10 is probably moot.

[18] The other result of having had time to consider this matter is that I believe one other issue should have been raised that was not addressed by anyone, namely:

(8) Who has the onus?

[19] I will address this issue briefly at the outset.

ANALYSIS

Who has the onus?

[20] The accused has the onus to prove a Charter breach on a balance of probabilities: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, at p. 277. How that onus is discharged depends upon the specific Charter breach alleged. Two principle breaches are alleged in this case, namely, a breach of the accused’s right to be free from unreasonable search and seizure under s. 8 of the Charter and a breach of his right to be free from arbitrary detention under s. 9 of the Charter. Under s. 8 of the Charter, a warrantless search is presumed to be unreasonable and, once an accused proves that the search was undertaken without a warrant, the Crown must rebut the presumption: Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 161.

[21] A number of courts have held that a similar presumption should apply under s. 9 of the Charter where the Crown seeks to rely on a statute that permits arbitrary detention, for example, under the HTA: see R v. McKennon, 2004 CarswellOnt 5237, [2004] O.J. No. 5021 (Ont. S.C.), at para. 33. In this particular case, there is no need to rely on such a presumption because there is no question that the search was a warrantless one and the Crown seeks to rebut the presumption of unreasonableness by relying upon the powers of the arresting officer to search incident to arrest. Under these circumstances, the Crown must establish the lawfulness of the arrest, failing which the search violates s. 8: see R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167, at para. 3.

Was the initial stop lawful?

[22] The arresting officer purported to be relying upon the HTA as his authority for the traffic stop. Section 216(1) of the HTA provides:

216(1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop and the driver of a vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

[23] In R. v. Hufsky, 1988 72 (SCC), [1988] 1 S.C.R. 621, the Supreme Court of Canada held that, although the predecessor section to present s. 216(1) of the HTA (s. 189a(1)) authorized arbitrary detentions contrary to s. 9 of the Charter, the section was justified as a reasonable limit under s. 1 of the Charter. Hufsky dealt with stationary check stops. In R. v. Ladouceur 1990 108 (SCC), [1990] 1 S.C.R. 1257, the Supreme Court held that roving random HTA stops were also a justifiable limit to motorists’ rights under s. 9.

[24] In addition to the purely random traffic stop permitted under s. 216(1) of the HTA, a police officer can stop a vehicle for articulable cause: R. v. Wilson, 1990 109 (SCC), [1990] 1 S.C.R. 1291, [1990] S.C.J. No. 54, at para. 13.

[25] In this case, the arresting officer testified that he pulled the accused over as part of a routine traffic stop. During cross-examination, it became clear that what he meant by “routine” was that it was random, without articulable cause, carried out for the purpose of public safety by ensuring that the driver was licensed and sober, and that the vehicle was insured and fit for operation. I am not persuaded that this was the case.

[26] The officer testified during the hearing that, after he had formed an intention to stop the accused’s vehicle and turned around to pursue it, he saw the vehicle weave slightly towards the centre line of the road. The officer’s sworn testimony on this point is contradicted by his sworn testimony given during the preliminary inquiry, where the following exchange took place during cross-examination:

Q. … And were you stationary at the time you made the first visual observation of this vehicle or were you moving?

A. I was moving as well. I was eastbound.

Q. You were eastbound, it was westbound.

A. That’s right.

Q. Okay. And so from your notes I see that the car – you indicated the car – in your notes that the car weaved towards the centre lane, right?

A. That’s right.

Q. And that caused you to embark upon a Highway Traffic Act investigation. Is that fair to say?

A. Yeah. I pulled him over in a routine traffic stop to determine sobriety and possibly his level of fatigue.

Q. And – and the reason for that?

A. Well, as soon as I see someone veer toward the centre line it becomes a possibility that the person might be either getting tired or distracted driving or their sobriety might be an issue.

Q. Okay. Are you able to indicate how close to the centre line?

A. Yeah, I – I – like within a foot or so.

[27] Thus, before me, the officer swore that he stopped the accused without articulable cause. During the preliminary inquiry, he swore the opposite. In light of this significant contradiction, I am unable to accept the officer’s evidence on the issue of why he stopped the accused. As a result, the Crown has not satisfied me that the traffic stop was made pursuant to s. 216(1) of the HTA. Without being satisfied that the arbitrary stop was validly made under s. 216(1), it follows that the accused’s right under s. 9 of the Charter to be free of arbitrary detention was breached.

[28] Even if the onus was on the accused to establish that the stop was not undertaken pursuant to s. 216(1), I would find that the onus had been met. In my view, the accused has established on a balance of probabilities that this traffic stop was a pretext to explore the possibility that he was engaged in criminal activity.

[29] During cross-examination, the officer testified that, although he had “interdiction” training, he was not an interdiction officer per se. He testified that, nonetheless, he does keep his eyes open while on patrol for things “happening beneath the surface”. In this way, he admitted during cross-examination, he has engaged in more than 300 successful drug seizures resulting from routine traffic stops. I believe that, based on the success the officer had achieved resulting from these previous stops, he used the one in this case to investigate potential criminal activity, not to ensure highway safety.

If the initial stop was lawful, did it become unlawful?

[30] A lawful traffic stop undertaken for valid highway traffic safety reasons may become unlawful and, therefore, arbitrary: R. v. Harris, 2007 ONCA 574; R. v. Mhlongo, 2017 ONCA 562. The accused argues that, even if the initial stop was for highway safety reasons, it became unlawful when the officer began to conduct a criminal investigation without articulable cause or reasonable and probable grounds by putting questions to the accused about his travel plans after the HTA stop had ended.

[31] Having reached the conclusion that the initial stop was not a valid one under the HTA, I need not decide whether the detention became unlawful later. The propriety of the officer’s questions will be dealt with when I address the fourth issue set out above relating to whether those questions constituted an unreasonable search and seizure when they were asked during the HTA stop.

Was there an unreasonable seizure of the rental agreement?

[32] The arresting officer testified that he requested that the accused provide him with the rental agreement in order to determine if the accused had authority to operate the vehicle. He also testified that such requests have become standard practice among members of the OPP.

[33] The accused submits that the officer had no lawful authority to request the agreement and that, therefore, the demand constituted an unreasonable search and seizure under s. 8 of the Charter: R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615, at p. 625.

[34] As I stated earlier, the Crown has the onus of rebutting the presumption of unreasonableness that arises from a warrantless search. It may do so by demonstrating that the search is authorized by law, that the law authorizing the search is reasonable, and that the manner in which the search was conducted was reasonable: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265; at p. 278; R. v. Buhay, 2003 SCC 30, at para. 32, [2003] 1 S.C.R. 631. The Crown has failed to do that.

[35] In its written submissions, the Crown contends that “common sense dictates that a driver of a rental vehicle is required to provide the rental agreement to police when asked” (para. 12). Common sense is not enough. The police need lawful authority. I have not been referred by the Crown to any statutory authority demonstrating that the request for the rental agreement was authorized by law. I have not been referred to any jurisprudence bearing directly on the issue of whether the officer was entitled to request the rental agreement as part of the requests he is otherwise lawfully entitled to make. Some of the cases to which I have been referred are ones in which a police officer did request production of a car rental agreement: R. v. Harrison, 2009 SCC 34, [2009] S.C.R. 494, at para. 7; R. v. Gonzales, 2017 ONCA 543, at para. 39. However, no issue was raised in those cases concerning the right of the officer to do so.

[36] If, by referring to common sense, the Crown means that the police have the power to compel production of a car rental agreement by necessary implication, I do not agree.

[37] Although I have not been provided by either counsel with the specific statutory references, counsel agree that the officer had statutory authority to demand production of the accused’s driver’s license, the vehicle ownership, and proof of insurance. The Crown argues that the power of the police to demand the rental agreement is implicit in the powers that have been granted to the police to determine ownership of the vehicle. I cannot see how this can be true. There is no statutory provision of which I am aware that requires the driver to carry the rental agreement with him, the way that he is required to carry and produce his license, the ownership and insurance slip. It is impossible to accept that the police have implicit authority to request production of the rental agreement in the absence of some statutory provision requiring the operator of a rental vehicle to carry it with him.

[38] The Crown has failed to demonstrate that the officer was authorized by law to demand production of the rental agreement. Therefore, the request resulted in an unreasonable search and seizure. However, I would like to make it clear that I am not finding that a police officer has no authority to request a car rental agreement in any case. My ruling is based on the failure of the Crown to discharge its burden in this one only.

Was there a search or seizure when the officer asked about the accused’s travel plans while inspecting his documents?

[39] Information may be the subject of a search and seizure, just as documents may be: Mellenthin, at pp. 623-624; R. v. Harris, 2007 ONCA 574, at para. 34. The accused submits that, in addition to the search and seizure that took place when the officer asked for the rental agreement, a further unreasonable search and seizure occurred when the officer asked the accused about his travel plans. I agree.

[40] The officer’s evidence on this point was less than clear. He testified that he engaged in a conversation with the accused at the roadside while he was inspecting his documents. He did not say that he had asked the accused to tell him about his travel plans. However, I accept that the accused provided the information about his travel plans in response to a question or questions from the officer about them. By the time the accused was stopped and the conversation between him and the officer was taking place, the officer’s suspicions were already aroused. He knew before the accused brought his vehicle to a stop that the vehicle had been rented in Toronto and that it was coming from the direction of Ottawa. At or about the time he was talking to the accused, the officer was provided with the rental agreement, which would have shown that the car was rented in Toronto the day before at 5:50 p.m. I find it likely that the officer asked the accused about his travel plans in light of his suspicions and the information the officer had at that point.

[41] Courts since Hufsky was decided have been careful to ensure that the power granted to officers who arbitrarily detain motorists for valid highway safety concerns is not subverted for use as a means to pursue an officer’s “hunch” or, worse, to mask discriminatory conduct. In Ladouceur, Cory J. wrote for the majority, at p. 44 (para. 60):

Finally, it must be shown that the routine check does not so severely trench upon the s. 9 right so as to outweigh the legislative objective. The concern at this stage is the perceived potential for abuse of this power by law enforcement officials. In my opinion, these fears are unfounded. There are mechanisms already in place which prevent abuse. Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds. Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s. 24(2) of the Charter. [Emphasis added.]

[42] In Mellenthin, the Supreme Court of Canada made it clear that questions which extend beyond those relating to the reasons for which the court found random stops justifiable in Ladouceur are improper. On behalf of the court, Cory J. wrote, at p. 487:

Check-stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search.

[43] The court in Mellenthin held that questions by an officer extending beyond those related to road safety were “elements of a search… made without the requisite foundation of reasonable and probable grounds” and, therefore, constituted an unreasonable search under s. 8 of the Charter (p. 488).

[44] In Harris, the Court of Appeal held that the information provided in answering questions may constitute a seizure. Doherty J.A. wrote on behalf of himself and McMurtry C.J.O., at para 34:

Where the subject of the questioning is under police detention and reasonably believes that he or she is compelled to provide the information sought in the questions, I do not think it distorts the concept of a seizure to describe the receipt of the information by the police as a non-consensual taking of that information from the detained person.

[45] The questions put by the officer in this case about the accused’s travel itinerary clearly extended beyond those relating to road safety. As a result, they were part of an unreasonable search, resulting in an unreasonable seizure of information.

Was there a valid waiver by the accused when he answered questions put to him after he was told he could leave?

[46] It will be recalled that the officer in this case testified that, when he was finished with the HTA stop and had returned the accused’s papers to him, he told the accused that the traffic stop was over and that he was free to leave. However, because the officer felt that there were indications that the accused was involved in trafficking drugs, he also told the accused that he had a few questions for him. The officer testified that he told the accused that answering the questions was “voluntary”. He then asked the accused two questions about his travel itinerary. One question had been asked already, namely, where the accused was going. Just as he had answered the first time, the accused told the officer that he was going to Calgary. The other question was where the accused had come from. The accused answered that he had come from Ottawa, where he had been visiting with family.

[47] The accused submits that he was subjected to a further unreasonable search and seizure when he was asked the questions and provided the answers he did. The Crown contends that there is no evidence to suggest that the accused felt compelled to answer. However, this submission fails to account for the onus borne by the Crown. Where the Crown alleges that a warrantless search took place with the accused’s consent, the Crown has burden of proving that the consent was valid: R. v. Borden, 1994 63 (SCC), [1994] 3 S.C.R. 145; R. v. Wills (1992), 70 O.R. (3d) 337 (Ont. C.A.). It has failed to meet that burden.

[48] The court in Mellenthin articulated the plight of a motorist stopped by the police. At p. 622, Cory J. wrote:

In [R. v. Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2, Hufsky and Ladouceur] it was deemed appropriate for the officers conducting a check-stop program to pose questions as to the mechanical condition of the vehicle and to require the production of a driver’s licence, certificate of ownership and proof of insurance. This does not make a check stop any less a manifestation of police authority. For even the most experienced and sophisticated driver it will create an atmosphere of some oppression. This follows not simply from a consideration of the reasons in Dedman, Hufsky and Ladouceur, but is a matter of common sense. There can be no question that the appellant was detained and, as a result, could reasonably be expected to feel compelled to respond to questions from the police.

It is true that a person who is detained can still consent to answer questions. However, that consent must be one that is informed and given at a time when the individual is fully aware of his or her rights.

[49] The officer testified that he told the accused he was free to leave before telling him he had some additional questions. However, I cannot believe that the accused would feel any freer to leave than he was to refuse to answer the questions. The officer’s advice that the accused was free to go was followed immediately by his advice that he did, however, have some questions to ask. It is well-established that a person is detained when they do not believe that they are free to go: R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[50] Regardless of whether the accused was detained at the time, I am not satisfied that he validly consented to waive his right to refuse to answer those questions. All the officer told him was that answering the questions would be “voluntary”. He did not explain what he meant by that word. He did not explain that the accused was free to refuse to answer the questions. How could the accused understand that he was now free to refuse to answer questions he apparently had not been free to refuse to answer earlier?

[51] Nor did the officer explain what jeopardy the accused was in by answering the questions. This is particularly troubling in this case where one of the questions had already been asked and answered. How could the accused know that answering the same question could get him arrested for trafficking, when it had not resulted in his arrest for anything when asked just a few minutes before?

[52] I am not satisfied that the accused gave an informed consent to waive his right not to answer the officer’s questions. There was, therefore, an unreasonable search and seizure when the accused was asked for a second time about his travel plans.

Did the officer have reasonable and probable grounds to arrest the accused?

[53] The accused was promptly arrested for trafficking after answering the officer’s questions. He submits that the arrest was made without reasonable and probable grounds and, therefore, was arbitrary. I agree.

[54] The officer arrested the accused under the authority of s. 495(1) of the Criminal Code, R.S.C. 1985, c. C-46. That section requires that an arresting officer have reasonable and probable grounds. Those grounds must not only be subjectively reasonable and probable, but objectively reasonable and probable, as well: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241.

[55] In this case, the evidence relied upon by the Crown to support the arrest includes evidence that I have determined was obtained in contravention of the accused’s rights under ss. 8 and 9 of the Charter. In cases where courts are asked to determine whether reasonable and probable grounds existed to issue a search warrant, unconstitutionally obtained evidence is excised: R. v. Evans, 1996 248 (SCC), [1996] 1 S.C.R. 8; R. v. Kokesch, 1990 55 (SCC), [1990] 3 S.C.R. 3. However, there is surprisingly little authority on the question of whether unconstitutionally obtained evidence should also be excluded in any analysis of whether objective grounds existed for a warrantless arrest. I have not been provided with any authority on the issue. Nor have I been able to find any explicit, binding authority, even with the assistance of a law clerk.

[56] I see no reason to treat the review of a warrantless arrest any differently than a review of a warranted search when it comes to unconstitutionally obtained evidence. To allow evidence obtained in violation of a person’s rights under s. 8 of the Charter to support a detention that would otherwise violate s. 9 of the Charter would serve to undermine both rights. Therefore, in my view, when determining whether the officer had objectively reasonable and probable grounds, unconstitutionally obtained evidence ought not to be considered. In this case, evidence of the details of the rental agreement and of the accused’s travel intinerary fall into this category of evidence. Without that evidence, the officer conceded in cross-examination that he had no reasonable and probable grounds to arrest the accused.

[57] But I would go further. Even with the unconstitutionally obtained evidence, the officer had neither subjectively nor objectively reasonable and probable grounds to arrest.

[58] What evidence did the officer have that this accused was anything other than a nervous motorist who had just been stopped in a rental car for no apparent reason? Two caffeine-based beverage cups accumulated over a period of roughly 17 hours since the car was rented? No. A bottle of water on the seat? Certainly not. The officer testified that none of these things, by themselves, was sufficient, but that, together with the smell of something that might have been marijuana and the implausibility of the accused’s travel itinerary, he had reasonable and probable grounds. I disagree.

[59] All of these things were neutral. None of them, alone or in combination, provided reasonable and probable grounds to arrest the accused for drug trafficking, even with the evidence of the smell and the travel itinerary, to which I now turn.

[60] The presence of a container of body spray in the car and the smell of what might have been marijuana could have been sufficient grounds to believe that the accused was in possession of marijuana: Gonzales, at para. 97. However, in this case, the officer testified that the odour was obscured. If the officer truly believed that he smelled marijuana, it would not have been necessary for him to “disconnect” from the context of the HTA stop in order to arrest the accused for possession of a controlled substance. Evidence found in plain view during an HTA stop may be relied upon as grounds for an arrest: Mellenthin.

[61] This officer demonstrated a thorough understanding of the law relating to highway traffic stops while giving evidence. At one point in his testimony, for example, he agreed that the accused did not have to divulge information not related to road safety during the HTA stop. Therefore, I conclude from the fact that the officer did not arrest the accused immediately for drug possession that he was not confident that what he smelled was marijuana. Indeed, he more or less admitted this during cross-examination when he testified that he did not remember having any conversation with the accused about the smell of marijuana and stated that the smell was too faint an odour for that to have occurred. I point out, parenthetically, that there was no evidence from the officer that any marijuana was found following the accused’s arrest.

[62] In any event, the smell could not provide reasonable grounds to believe that the accused was involved in trafficking drugs, as opposed to merely possessing them. Only the itinerary could possibly do that. In my view, the officer’s doubts about the accused’s itinerary were not enough to move the dial from possible drug trafficker to probable drug trafficker. The evidence of the officer himself supports my view.

[63] The officer testified that he asked the accused about his travel itinerary a second time because he felt that there were “indications” that the accused was involved in trafficking. The officer admitted in cross-examination that he had a suspicion at that point, but no reasonable and probable grounds. However, the officer had no more grounds to arrest the accused after the officer questioned the accused a second time about his travel plans than he did before doing so. The officer already knew that the accused was travelling to Calgary and that the car was travelling from the direction of Ottawa, despite having been rented in Toronto. If the officer believed he only had a reasonable suspicion before asking the accused for a second time about his travel plans, then I fail to see how anything changed afterwards.

[64] For the foregoing reasons, I conclude that the officer did not have reasonable and probable grounds to arrest the accused for drug trafficking and that the arrest, therefore, violated the accused’s rights under s. 9 of the Charter to be free from arbitrary arrest or detention.

Should the drugs be excluded under s. 24(2) of the Charter?

[65] Section 24(2) of the Charter requires that evidence obtained in contravention of a Charter right 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”.

[66] In Grant, the Supreme Court of Canada set out a three-part inquiry to be conducted in determining whether evidence should be excluded under s. 24(2). This question must be answered having regard to:

(1) the seriousness of the Charter-infringing state conduct;

(2) the impact of the breach on the Charter-protected interest of the accused; and

(3) society’s interest in an adjudication on the merits.

[67] Dealing with the first part of the inquiry, the Charter-infringing conduct in this case was serious from both a qualitative and a quantitative point of view.

[68] Quantitatively, the violations were numerous. The accused was stopped for no valid highway safety reason. He was asked questions about his travel plans that went beyond those necessary or permitted for HTA purposes. He was then questioned for criminal investigatory purposes without any proper explanation as to his rights or why the questions were being asked.

[69] From a qualitative point of view, the use of the HTA stop as a pretext to conduct a criminal investigation was a serious abuse of an important police tool. While the request for the rental contract would not ordinarily constitute a serious Charter infringement, here it appears to have been motivated by a desire to confirm the information obtained from the communications centre about the location from which the accused’s car had been rented and where it was coming from at the time of the stop.

[70] The questions put to the accused about his travel itinerary were similarly motivated. I agree with the submission made on behalf of the accused that these acts on the part of the officer have more in common with a criminal investigation than with a routine traffic stop to ensure highway safety.

[71] The ultimate arrest of the accused for drug trafficking in the absence of reasonable and probable grounds to believe he was in possession of drugs was certainly no less serious.

[72] Turning to the second part of the Grant inquiry, there can be no question that the impact of these breaches on the accused, culminating in his arrest at the roadside, had a significant impact on his Charter-protected rights.

[73] As for the third branch of the Grant inquiry, as Doherty J.A. pointed out recently in R. v. McGuffie, 2016 ONCA 365, at para. 63:

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: [citations omitted]. 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 e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Marelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112.

[74] The first two branches of the Grant inquiry in this case pull strongly in favour of exclusion, trumping the third branch as a result.

[75] For these reasons, the evidence should be excluded.

CONCLUSION

[76] The application is allowed.

[77] The accused’s rights under ss. 8 and 9 of the Charter were infringed in this case by virtue of the vehicle stop, the request for the rental contract, the questions put to the accused about his travel itinerary, and by his arrest at the roadside.

[78] Admission of the evidence found as a result of the search must be excluded in order to preserve respect for the rights enshrined in the Charter.

Ellies J.

Released: October 10, 2017

CITATION: R. v. Masjedee, 2017 ONSC 4920

COURT FILE NO.: CR-15-74

DATE: 2017/10/10

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

WAHIDULLAH MASJEDEE

REASONS FOR DECISION

Ellies J.

Released: October 10, 2017