CITATION: Her Majesty the Queen v. Riley, 2017 ONSC 573

COURT FILE NO.: CR 924/15

DATE: 20170124

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Ms. Brenda Lawson, for the Federal Crown

• and -

Justin Riley

Mr. Scott Cowan, for the Accused

Accused

HEARD: January 20, 2017

REASONS FOR DECISION ON DEFENCE CHARTER APPLICATION

Conlan J.

I. Introduction

The Issues

1Was Mr. Riley the subject of an arbitrary detention by the police? Were his section 10(a) and/or 10(b) Charter rights infringed? Was he the subject of an unreasonable search?

2If Mr. Riley’s Charter rights were violated, what should be done about it? Should the evidence be excluded?

3Those are the issues to be decided.

The Charges

4The accused is charged with four offences, all stemming from his interaction with the police on December 30, 2014.

5The charges are (i) possession of cannabis marihuana, under 3 kilograms, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act (“CDSA”), (ii) possession of methamphetamine (“meth”) for the purpose of trafficking, contrary to section 5(2) of the CDSA, (iii) possession of oxycodone for the purpose of trafficking, contrary to section 5(2) of the CDSA, and (iv) possession of hydromorphone for the purpose of trafficking, contrary to section 5(2) of the CDSA.

An Overview of the Facts

6On December 30, 2014, in the early evening hours, in the village of Lucknow, Bruce County, Detective Constable Johnson (”Johnson”) of the Ontario Provincial Police was on general patrol in an unmarked van. He was wearing plain clothes.

7Johnson, now retired, was at the time a seasoned police officer with thirty plus years of experience.

8He observed a female known to him as being involved in drug activity, Tracey Feddes (“Feddes”). She was walking quickly. It did not appear to the officer that she was out for a leisurely walk but rather that she was headed somewhere in particular.

9Feddes got into the front passenger seat of a motor vehicle – a Dodge Durango SUV (“Durango”). The Durango was parked in a nursing home lot.

10Johnson saw what looked like a cigarette being lit in the area of the front passenger seat of the Durango.

11The Durango was not running. There were no exterior or interior lights on.

12Johnson drove up behind the Durango. He parked his van about five to ten feet away from the Durango’s right rear corner.

13Johnson then noticed what looked like fresh and significant damage to the Durango’s body.

14Johnson, on foot, approached the front passenger door of the Durango.

15The accused, Justin Riley (“Riley”), was the driver, although that was not known to Johnson when he first approached the Durango.

16Feddes opened her door.

17Johnson identified himself and noticed the male driver.

18Johnson asked the occupants what they were doing. He testified that he was suspicious for a variety of reasons – Feddes, the fact that the Durango was parked where it was, and the fresh damage.

19Feddes replied that they were just talking. She was smoking a cigarette.

20Johnson smelled marihuana inside the Durango. It was a faint smell. He also observed a small object on the centre console that appeared to have white powder on it.

21Johnson asked Riley for his name, and Riley answered truthfully. Johnson asked for his identification, and Riley surrendered his driver’s licence.

22Johnson then asked Riley if there were any drugs inside the Durango. Riley surrendered from his right hand an orange hydromorphone pill and stated that he was about to consume that.

23Johnson then moved to the driver’s door of the Durango because he intended to place Riley under arrest for possession of a controlled substance.

24Johnson opened the driver’s door of the Durango and asked Riley if he had any other drugs. Riley stated that he had some “percs” and gave to Johnson a small baggie of ten percocets that was inside his jacket.

25After exiting the Durango, Riley was arrested for possession of a controlled substance.

26After a brief struggle which required Johnson to take out his firearm, Riley was handcuffed. A pocket knife was seized from his pants.

27Riley was then placed inside the unmarked police van. Johnson called for assistance and then read to Riley his right to counsel and cautions.

28A further search of Riley revealed a pink container in his jacket. That container held 23 orange hydromorphone pills.

29Johnson and Riley then talked about the damage to the Durango and why Riley was in Lucknow.

30Another police officer arrived on scene and discovered $280.00 in cash inside Riley’s pants.

31The Durango was searched. A backpack was located behind the driver’s seat and a garbage bag as well, both of which contained drug evidence.

32Because of the weather and the darkness, the vehicle was towed to the Kincardine police station. It and the backpack were searched there in a more fulsome manner. Seized were 19.08 grams of meth, 1975 grams of marihuana in several individually wrapped bags, three scales, packaging material, and three cell phones.

33Thus, in total, for narcotics, seized were 24 hydromorphone pills, ten percocets, 19.08 grams of meth, and 1975 grams of marihuana.

The Application

34The Defence has brought a Charter Application. The onus is on Mr. Riley to prove, on a balance of probabilities, a violation. As to whether any evidence ought to be excluded under subsection 24(2), that burden of proof rests on the Applicant as well, again on balance.

35It is alleged, in short, that Riley was arbitrarily detained from the moment that Johnson pulled up behind the Durango. He was then not told of any reason for his detention but rather simply questioned by Johnson. He was not told of his right to seek counsel. The subsequent searches of the Durango and the backpack were warrantless and unreasonable.

36All evidence gathered after the initial detention ought to be excluded, argues the accused.

37I set out here the relevant sections of the Charter – section 8, section 9, subsections 10(a) and (b), and subsection 24(2).

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Arrest or detention

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right;

Exclusion of evidence bringing administration of justice into disrepute

24. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

38One final word pertaining to the legal burdens in this case - warrantless searches are presumptively unreasonable. The onus shifts to the Crown to justify them, on balance.

The Evidence on the Application

39The Crown called Johnson to testify on the voir dire. He was the only witness called by either side.

40The hearing of the Application, including submissions by counsel, took significantly less than one full day.

II. Analysis

Section 9

41Johnson described in his testimony the scene in the parking lot.

42He acknowledged in cross-examination that an embankment was in front of the Durango, and the unmarked police van was to its rear. Thus, although the Durango could have been moved forward it would have hit the embankment, and although it could have been moved backwards it would have hit the van.

43Essentially, Johnson admitted that the Durango was blocked-in such that it could not have left the parking lot safely.

44At the Preliminary Inquiry, Johnson stated that once he had Riley’s documents in his possession “[i]t could be looked upon as a bit of a detainment, yes”.

45Nonetheless, Johnson denied during the voir dire that Riley was detained. He stated that Riley could have exited the Durango and left on foot. If he had done so, Johnson would have let him go.

46In cross-examination, Johnson testified that, when he was standing at the front passenger door of the Durango, he did not have enough for an investigative detention.

47Further, in cross-examination, Johnson testified that, until Riley surrendered to him the orange pill, there were no grounds to arrest or detain him.

48I find that, once Johnson had Riley’s driver’s licence, at the latest, Riley was detained. The Durango was essentially blocked-in. A police officer was standing at the Durango. That police officer had Riley’s driver’s licence.

49In those circumstances, no reasonable person in Riley’s shoes would have felt that he could simply drive or walk away. No reasonable person in Riley’s shoes would not have felt an atmosphere of oppression, to some degree, and compulsion to answer the police officer’s questions.

50Was the detention an arbitrary one?

51Yes, it was.

52This is a classic case of an experienced hunch on the part of a veteran detective. Johnson, to his credit, did not suggest otherwise in his testimony. He stated simply that he was suspicious.

53Mere suspicion is not enough, however.

54We used to ask whether there was articulable cause for the detention – a constellation of objectively discernible facts which gave the police officer reasonable cause to suspect that the detainee was criminally implicated in the activity being investigated. R. v. Simpson, 1993 3379 (ON CA), [1993] O.J. No. 308 (C.A.).

55More recently, the question has commonly been framed as whether there were reasonable grounds to detain; was the detention reasonably necessary on an objective view of the totality of the circumstances? R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59.

56Here, with much respect for Johnson, to describe this detention of the Durango and Riley as having been based on thin ice would be an understatement.

57In sum, it was based on Feddes, known to be connected to drugs, walking fast and getting into a motor vehicle parked in a lot in Lucknow at about dinner time.

58Because the damage to the Durango was not observed until after Johnson made the decision to approach the motor vehicle, and because Johnson never asked anything about the damage until after the arrest, I doubt that it had anything to do with the reason for the detention.

59Surely, those facts could not possibly amount to reasonable grounds to detain Riley.

60Riley’s detention was arbitrary and a breach of his section 9 Charter right.

Subsections 10(a) and (b)

61Counsel spent very little time, in written or oral submissions, dealing with subsection 10(a).

62I find no violation of that Charter right.

63The entire interaction between Johnson and Riley, from when Johnson arrived at the front passenger door of the Durango to when Riley was arrested, took a few minutes.

64There is no requirement that a detainee be immediately informed of the reason for his detention.

65By the time of his arrest, which occurred promptly after his detention, Riley was well aware of why he was being held by Johnson.

66It is true that the intervening event between (i) the start of the interaction between Johnson and Riley and (ii) Riley’s arrest was incriminating remarks and conduct on the part of the accused, and it is also true that, technically, being advised of the reason for one’s arrest, even where that arrest comes promptly after the detention, is not a true substitute for the right to be advised of the reason for one’s detention.

67Still, however, recognizing those shortcomings, I remain unprepared to find a violation of section 10(a). Perfection is not the standard expected of police officers.

6810(b) is a different matter, however. I find a violation of Riley’s right to counsel. He was not informed by Johnson, without delay upon detention, of his right to retain and instruct counsel.

69In the circumstances of this case, I think that it is reasonable to conclude that the provision of that right to Riley immediately after the detention (which occurred no later than when Johnson took control of the accused’s document) may very well have changed the face of this case significantly.

70The provision of that right to Riley would likely have brought home to him the seriousness of his interaction with Johnson.

71I cannot say for certain that Riley would not have voluntarily handed over the orange pill and made the incriminating remark about it if he had been told by Johnson in advance that he had the right to contact counsel, however, that is a reasonable possibility. In fact, it is a likelihood, in my view.

72But for the orange pill being handed over, there would have been no arrest of Riley for anything. Johnson’s evidence makes that clear.

73Unlike the word “promptly” in subsection 10(a), the words “without delay” in 10(b) mean immediately. There were no officer or public safety concerns here to depart from that requirement. R. v. Suberu, (2009), 2009 SCC 33, 245 C.C.C. (3d) 112 (S.C.C.).

Section 8

74I see no violation of Riley’s right to be free from unreasonable search or seizure.

75With regard to the initial questioning of Riley by Johnson that occurred before the arrest, I do not see it as necessary to address whether that amounts to a stand-alone breach of section 8 because I have already found a simultaneous, or nearly so, violation of section 9.

76As for the later searches of Riley’s person, the Durango and the backpack, I find that those were all valid as being incidental to the arrest.

77Objectively assessed, there was a legitimate reason for those searches – to discover evidence. And it was perfectly reasonable for Johnson to think that there may be more drugs given the odour of marihuana from within the Durango and the one pill that had already been surrendered.

78I pause here to make an observation, however. The power to search incidental to arrest depends on the arrest being a lawful one.

79Although not specifically argued by the Defence in this way, the arrest of Riley could be considered to have been unlawful in that it was precipitated by an arbitrary detention, and thus, the subsequent searches are prima facie unreasonable.

80In any event, my decision here is based on how the Application was argued.

81Putting aside whether the arrest was lawful, the Crown has met its onus to prove on balance that the warrantless searches were not, standing alone, unconstitutional.

Subsection 24(2)

82This is a close call.

83It is a rare beast that a case is found to contain violations of sections 9 and 10(b), as here, but is saved under 24(2).

84In all of the circumstances, I am persuaded on balance that to admit at trial the evidence gathered after the detention of Riley would bring the administration of justice into disrepute. Thus, it must be excluded.

85The seriousness factor favours exclusion. There were multiple infringements of two of the most sacred rights enshrined in the Charter. Johnson was a highly experienced police officer who I am sure has a stellar reputation generally, but I cannot ignore that this detention was so clearly arbitrary and the right to counsel so clearly delayed. Johnson acted in good faith, but these are the types of Charter infringements that the Court must distance itself from.

86Regarding the impact of the violations on Riley, notwithstanding the brief duration of the interaction between the accused and Johnson, that factor favours exclusion as well. In my view, but for the arbitrary detention and the delayed provision of the right to counsel, we would not be here. Riley would likely not have simply handed over a pill and confessed to being about to swallow it. Everything else flowed from that.

87Society has a very high interest in having these serious drug charges tried on their merits. We have here a dangerous cocktail of substances – marihuana, meth, oxycodone and hydromorphone. The Crown’s case appears to be relatively strong, at least on the issue of possession. I find that the third Grant factor strongly favours admission of the evidence.

88In the end, I am of the view that Justice Doherty’s expression in Simpson, supra, although pre-Grant, is applicable: there are times when the dangerous and clearly erroneous perception of the reach of police powers must be emphatically rejected (see page 16 of the Quicklaw report).

89At first blush, I am sure that many members of the public would criticize the decision to exclude the evidence in this case.

90I am confident, however, that an informed member of the public would also view this detention of Riley as having been rather whimsical. On top of that, a serious violation of the accused’s right to counsel occurred.

91This is not a condemnation of the police officer. The evidence just has to go.

92Two of the three factors favour exclusion. The third factor strongly favours admission of the evidence. Balancing and weighing the considerations, I conclude that admission of the evidence obtained as a result of the Charter infringements would have a more deleterious impact on the long-term repute of the administration of justice than would its exclusion.

III. Conclusion

93The Defence Charter Application is allowed. Violations of sections 9 and 10(b) are found. Pursuant to subsection 24(2), all evidence obtained after the detention of Riley is excluded from the trial.

94There being no narcotics left, I suspect that verdicts of acquittal will have to be entered on all counts.

95Counsel may address that at Court on the next scheduled date.

96This Application was well-presented by both counsel. I am grateful for their assistance.

Conlan J.