R. v. Fray, 2017 ONSC 5823

CITATION: R. v. Fray, 2017 ONSC 5823

COURT FILE NO.: CR-17-004

DATE: 2017/10/11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Leigh Van Gorder for the Crown

Applicant/Plaintiff

• and -

RYAN FRAY and RAYMOND OPPONG

for the

Respondents/Defendants

HEARD: , 2017

KARAM j.

Introduction

1The accused are charged jointly and each is charged separately with possession of cocaine for the purpose of trafficking, and each is also charged jointly with possession of Canadian currency of a value not exceeding $5000.00, knowing that all of the property was obtained by commission of an indictable offence and each is charged separately with that offence. They are also charged jointly with simple possession of marihuana of an amount of less than 30 grams.

2A pre-trial application has been brought by both accused, relating to Ss. 8, 9 and 10(b) of the Charter of Rights and Freedoms alleging a breach of each those rights and seeking to have evidence seized by police excluded pursuant to s.24(2) of the Charter. For that purpose a Charter hearing was held during which the Crown called five police officers to testify. No evidence on the application was called by either accused. After submissions by counsel it was adjourned to today’s date for a decision.

3The issues before the court arise from a warrantless arrest of the two accused by police and the subsequent strip search of each of them at the police station, wherein drugs were found hidden on each, without them having the benefit of counsel. Although no other evidence was called, apparently as a result of the drugs found during the strip search, a search warrant was obtained which yielded other drugs located in a hotel room. No evidence was led in respect of the subsequent drug seizure and I have not therefore dealt with the subsequent drug seizure.

Background and Facts

4The facts as related by the various police witnesses are relatively straight forward and largely undisputed. On September 9^th 2015, Detective-Constable Tom Robertson of the North Bay Police Service observed two black-skinned people in a white Honda civic vehicle driving on Metcalf Street in North Bay. Although he was able to see that the two occupants were black, he could not tell if they were men or women. The vehicle in which they were driving subsequently turned out to be owned by one Tammy St. Clair who investigation later revealed was registered at the Holiday Inn Express in North Bay and was residing there with an unidentified black male. On the same date, Detective-Constable Bradley Reaume, the investigating officer in this matter, received information from a confidential informant that two unidentified and undescribed black men were selling cocaine to Stephen Bird, a person known by police as a drug dealer, who was thought by Constable Reaume to be selling drugs from a residence at 991 Metcalfe St. There was no other description or identification of either of the black men, no details as to how the information was acquired, whether it was first-hand information or obtained from some other source or times and places where the sales to Mr. Bird would take place. .

5On September 15^th, six days later, as the result of an anonymous telephone complaint to police dispatch regarding the comings and goings and numbers of visitors at 991 Metcalfe, Officers Robertson and Reaume drove to a location down the street from that location and began surveillance of that residence at approximately 4.15 p.m. They remained there until 8.00 p.m. and over that period of time observed about 15 attendees who entered the residence and left shortly thereafter and who were known to police to be connected to the drug culture. In fact, they observed an individual known to them, through a window apparently smoking cocaine from a glass pipe. They also observed James Rockburn, who they knew to be the tenant at that address, but they did not see Mr. Bird, nor was there any evidence of his association with that address.

6At 4.30 p.m., a taxi cab pulled up to that residence with what subsequently proved to be the two accused. There was nothing noteworthy about them, other than that they were black-skinned but otherwise unidentifiable to the two Officers. By contacting the taxi cab driver, Constable Reaume was told that they had been picked up at The Holiday Inn and taken to 991 Metcalfe St. During the surveillance, the two officers briefly left the scene and travelled to the Holiday Inn Express where they questioned the clerk and determined that there was a room registered in the name of Tammy St. Clair and that she was sharing that room with a black-skinned male, who was not identified.

7Eventually at 8.00 p.m. the two accused exited the residence and got into a cab. Although, one was wearing the same blue hoody he had been wearing when they arrived at the residence and both were black, the two officers had no means of identifying who these people were, either by name or description. Upon the cab’s departure from 991 Metcalfe St. the two Officers immediately began to follow in the police vehicle, with the intention of arresting the two men for possession for the purpose of trafficking. They were then joined by a second police car containing two more officers. The cab stopped in a Home Depot parking lot adjacent to the Holiday Inn Express hotel, wherein the police vehicles surrounded the cab and the two accused were arrested.

8Upon their arrest they were searched and neither was found to have drugs on them. Mr. Oppong had $361 in cash and Mr. Fray had $10 in cash and three cell phones. It is particularly noteworthy that prior to their arrest the police officers did not know their names, had no details of their places of residence or backgrounds and did not even have a physical description of either accused except that they were black-skinned. In fact, Constable Reaume at the arrest thought that he recognized Mr. Oppong as a person named Samuals.

9Once arrested, they were taken to the police station and on constable Reaume’s direction strip-searched. At that point in time the police had no evidence of possession of drugs. When requesting his supervisor’s authority to carry out the strip searches, his notes indicate that Constable Reaume advised that the strip searches were “necessary”. When he was asked at the hearing why the strip searches were necessary, he replied that in his experience when dealing with people charged with cocaine trafficking, they often hide drugs on their person. When it was pointed out to him that at that point no drugs had been recovered and that there was no evidence of drug trafficking by the two accused, he stated that since it was a drug investigation he felt that was sufficient. When asked whether he conducted strip-searches in all drug cases, he said that he did not and that it would depend on the particular circumstances in each case. When asked what particular circumstances justified a strip search in this case, he answered that when accused people are travelling between two locations, i.e. between a hotel and a residence in this case, he felt that was sufficient justification.

10While enroute to the police station Mr. Fray was advised of his rights to counsel to which he responded in an indecisive fashion that seemed to suggest neither a positive response nor a refusal. Prior to entering the police station Mr. Oppong was provided with his rights to counsel to which he requested a certain local law firm. However, neither accused was ever put in touch with counsel until after the completion of the strip search. Constable Reaume made it evident in his testimony that he would not allow an accused to meet with counsel before conducting a strip search because of the possibility that an accused person when out of sight might destroy evidence hidden on his person. I understood this to be his standard approach when conducting strip searches.

11Without the benefit of consulting counsel, the two accused were then strip-searched and each was found to have cocaine hidden on their person. In Mr. Oppong’s case, 13 grams of cocaine and in Mr. Fray’s case less than one gram of cocaine.

Legality of the Arrest

12Dealing first with the legality of the warrantless arrest of the two accused in the Home Depot parking lot which was made pursuant to S. 495(1) (a) of the Criminal Code, the law is as described by the Supreme Court of Canada in R. v. Storrey, [1990] 1 SCR 241, where the Court said: “It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest.”

13In R. v. Lawes, 2007 ONCA 10, a decision of the Ontario Court of Appeal, the Court stated “The totality of the circumstances relied upon by the arresting officer will form the basis of the objective assessment. It would constitute an error in law to assess each fact or observation in isolation. An objective assessment will include the dynamics within which the police officer acted, and his or her experience”. In R. v. Gill 2015 ONSC 7872, the Court stated “In other words, the reasonable grounds to believe standard consists of compelling and credible information that provides an objective basis, objectively discernible facts, for drawing inferences as to the existence of factual circumstances.”

14Applying the law to the circumstances of this case, I am satisfied that the police did not have reasonable and probable grounds to arrest the two accused. The only actual information upon which the police appear to have relied was the information provided by the confidential informant, that two unidentified and undescribed black males were selling cocaine to Stephen Bird. The remaining information recited by the police witnesses at this hearing had no probative value and certainly could not be described as “compelling”, the term referred to in Gill. For example, the anonymous call to the police dispatch about the traffic in and out of 991 Metcalfe St. simply established what the officers saw for themselves. If there was drug trafficking being carried out at that address, there was no connection established between the two accused and that residence, other than their presence there for three and a half hours. Mr. Bird, to whom it had been said drugs were being sold, if he was at all connected to that address was not seen to be present, although the tenant who lived there was present and who would be in charge of the premises. The evidence that the two black men had taken the cab from the Holiday Inn, that one Tammy St. Clair who was registered at the Holiday Inn lived there with a black male, or that she owned the white Honda civic in which two black people were seen by Constable Robertson on Sept. 9^th is of no assistance at all.

15Even the information provided by the confidential informant, as meager as it was, did not pass the tests set out in R.v.Debot [1989] 2 S.C.R. 1140 that of the informant’s credibility, whether the information provided was compelling and the extent to which that information was corroborated. In respect to credibility, there was no information about the informant, other than that he or she had provided reliable information on about ten previous occasions. The information itself did not in any way identify the individuals other than that they were two black males that were selling cocaine to one Stephen Bird. There was no indication as to how the information was obtained whether it was observed first hand or simply hearsay. There were no details such as where these transactions took place, or would take place, when they had occurred or would occur or in what quantities. Finally, as matters unfolded, there were no corroborating facts other than that two unidentified black males appeared at 991 Metcalfe.

[16] I find therefore that the police did not have reasonable and probable grounds in this case to make an arrest and that therefore the arrest was invalid. Since the two accused were illegally detained as the result of an illegal arrest, there was a breach of their S.9 Charter rights. By virtue of the finding with respect to the invalidity of the arrest and the breach under S.9, the subsequent detention and strip search were also unlawful.

The Strip Search

17The evidence of Constable Reaume regarding the conduct of the strip searches of the two accused satisfies me that his decision to conduct them was completely arbitrary and based only on his view that in cocaine drug investigations people arrested for these offences are likely to have cocaine hidden on their person. In fact, he testified that in his experience such strip searches almost always turned up drugs hidden on their person. When asked why he felt it was necessary to conduct strip searches in this particular case, since there was no evidence implicating the two accused at that point, his explanation was completely unconvincing. He stated that in his experience such people are likely to be carrying drugs particularly when travelling to a sale.

18In R. v. Fearon, 2014 SCC 77, referring to R. v. Golden, it was stated “strip searches will only be reasonable when they are conducted in a reasonable manner as an incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence relating to the reason for the arrest and the police have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest.” In Golden, the Court also stated “Whether searching for evidence or for weapons the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search”. The decision to conduct a strip search, which is highly invasive, therefore cannot be routine policy but must be specific to the circumstances surrounding the arrest. In this case there were no circumstances justifying the strip searches, only Constable Reaume’s expectation that in cocaine trafficking cases the arrested people probably carried hidden cocaine on them. Generalized concerns arising from the type of offence an accused person is arrested for, do not render a strip search lawful.

[19] In this case, the Crown has failed to demonstrate that the strip searches were necessary. On the basis of Constable Reaume’s testimony I am satisfied that he arbitrarily conducted strip searches routinely for no other reason than he thought he might find evidence. Accordingly, I find that there was a breach of the accuseds’ S. 8 Charter rights.

Right to Counsel

20This brings us to the failure to provide Mr. Oppong, without delay, with an opportunity to retain and instruct counsel after he had indicated that he wished to exercise his rights to counsel and to speak to a lawyer. It is particularly disconcerting that Constable Reaume refused to grant this right as a matter of course because it is his view that exposure to legal counsel prior to the completion of the strip search creates the possibility of the accused destroying evidence.

21Upon a detained person’s request to contact counsel, police become bound by duties. As articulated by Doherty J. A. for the Ontario Court of Appeal in R. v. McGuffie, :

“If a detained person, having been advised of his right to counsel, chooses to exercise that right, the police must provide the detained person with a reasonable opportunity to exercise that right and must refrain from eliciting incriminatory evidence from the detained person until he has had a reasonable opportunity to consult with counsel.”

22The Court went on to say in relation to the facts in that case, which I find analogous to the case at bar:

“The purpose animating s. 10(b) applied with full force in this case. The appellant was under the control of the police. He was effectively imprisoned from the moment he was handcuffed and placed in the cruiser. Constable Greenwood took advantage of that control to subject the appellant to an unconstitutional detention and two intrusive unconstitutional searches, both of which yielded incriminatory evidence. The appellant was in serious legal jeopardy. He needed legal advice. More importantly, he was constitutionally entitled to it. The conduct of the police, and specifically Constable Greenwood, ensured that he would not receive that advice until after the police were done with the appellant and had the evidence they needed to convict him. The appellant’s rights under s. 10(b) were breached.”

23Considering Constable Reaume’s attitude in that respect, this amounted to an intentional denial of the accused’s S 10(b) Charter rights until such time as he had completed the strip searches. Although the evidence with respect to Mr. Fray was less convincing as to whether he responded affirmatively or simply indecisively in requesting to consult with counsel, it is apparent from Constable Reaume’s evidence that he would not have been permitted to speak with counsel until the strip search was complete in any event.

[24] Accordingly, I find that the S.8, s.9 and s. 10(b) Charter rights of both accused have been breached.

25Applying S.24 (2) of the Charter, I am required to consider whether the evidence seized by police in a manner infringing the Charter rights of the two accused, having regard to all the circumstances, if admitted, would bring the administration of justice into disrepute.

26Section 24(2) requires a trial judge to balance several competing factors articulated by the Supreme Court of Canada in Grant, and excerpted by Doherty J.A. in McGuffie:

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 an adjudication on the merits.

27I find that the breaches are very serious, because it is evident that no thought was given to the protection of the accuseds’ rights at all. The police simply carried on with the arrest and investigation without concern for the Charter. In fact it is difficult to imagine a more blatant disregard for Charter rights than occurred in this case. Although Constable Reaume’s evidence regarding his approach to strip searches and rights to counsel do not suggest a systemic approach to that investigative technique by the North Bay Police Service, it certainly indicates that it was his approach to cocaine investigations in which he was the investigating officer.

28In McGuffie, at para 79, Justice Doherty stated: “The serious negative impact of the Charter breaches on the appellant’s Charter-protected interests also compels exclusion. None of the Charter breaches could be characterized as technical or minor. The appellant’s arbitrary detention effectively negated his personal liberty. Not only was he in imprisonment, but he was imprisoned in a manner that left him vulnerable to further police misconduct. The police took advantage of the appellant’s arbitrary detention to unlawfully search the appellant. That conduct led directly to the discovery of incriminating evidence. The strong causal connection between the denial of the appellant’s liberty, the unconstitutional search of his person, and the subsequent obtaining of the incriminating evidence speaks to the profound impact of the breaches on the appellant’s Charter-protected interest”. I find that those comments apply to the two accused here, with the added factor of an invalid arrest. Obviously, the impact of these breaches, particularly the illegal strip search was extremely intrusive and had to have a significant impact upon the two accused. Each of the unlawful detention, the strip search and the denial of rights to counsel was an abdication of the rights of the accused.

29Although the evidence seized is vital to the Crown’s case and the offences are serious, this consideration pales in comparison to the Charter breaches. In Ahmed-Kadir at para 111 Frankel J.A., stated “The importance of maintaining respect for Charter rights and ensuring that the justice system remains above reproach outweighs the collective cost of his acquittal”. Accordingly, I am satisfied that to admit the evidence in this case would bring the administration of justice into disrepute and therefore the evidence seized will be excluded.

Karam J.

Released: 2017/10/11

CITATION: R. v. Fray, 2017 ONSC 5823

COURT FILE NO.: CR-17-004