Information # CR-16-00000017-00AP
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
RAMSAY
R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE JUSTICE R. D. Cornell
on August 23, 2017, at PARRY SOUND, Ontario
APPEARANCES:
W. Beatty
Counsel for the Crown
D. Lakie
Counsel for Mr. Ramsay
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Page
Reasons for Judgment
1-9
LEGEND
[sic] Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) Indicates preceding word has been spelled phonetically
Transcript Ordered:
AUGUST 25, 2017
Transcript Completed:
OCTOBER 24, 2017
Ordering Party Notified:
SEPTEMBER 11, 2017
WEDNESDAY, AUGUST 23, 2017
THE COURT: This is an appeal by the Crown from a decision of the trial judge who found that the accused’s Charter rights had been violated.
This finding was based upon the trial judge’s determination that such rights had been violated because of an unlawful traffic stop and an unlawful detention. In accordance with the reasons that follow, the appeal is allowed.
Issues
There are there are four issues that have been raised in this appeal.
Firstly, whether there was an improper or illegal traffic stop.
Secondly, whether there was an unlawful detention of the accused.
Thirdly, whether there was an unlawful search of the accused.
Finally, whether the trial judge engaged in a proper section 24(2) analysis.
Acknowledgement
It is acknowledged by defence counsel that the trial judge’s section 8 analysis is flawed. Accordingly, I need not address the question of whether or not there was an unlawful search.
Background
The two police officers who were involved in this incident testified that they were in the process of setting up a Ride Program. Before being able to do
so, they noticed that a cargo van was headed towards the Parry Sound airport. This was of concern to the two police officers for a number of reasons. First of all, the incident occurred on Sunday, December 28th. The incident occurred at approximately 4:45 p.m. on that day. The police officers indicated that they had concern because there were no businesses open at the airport on that day at that time.
The officers also expressed concern due to the fact that rental cube vans are often used for illegal activity. These concerns prompted the police to follow the accused to a point on the airport where he parked his vehicle in the vicinity of a warehouse unit.
The accused proceeded to exit his vehicle. He was approached by the police. One officer testified that he was approximately three feet away from the accused when he smelled alcohol emanating from the accused. The other officer indicated that he was approximately four feet away from the accused when he smelled alcohol emanating from the accused.
The evidence of the police indicated that it was during this initial contact with the accused that the presence of alcohol was found.
Having satisfied themselves that the accused had been operating the motor vehicle and that the presence of alcohol had been determined, the demand for a roadside screening test was made.
The accused was arrested. Breathalyzer readings were subsequently obtained indicating blood alcohol readings of 160 and 150. During the course of a voire dire, the accused admitted that he had been drinking regular beers earlier in the day. He indicated that he had purchased and consumed four tall boy beers en route to the airport.
Analysis
The Alleged Stop
The trial judge found that the police officers in question had stopped the accused. Indeed, on page four, lines 25 and 26 of her decision, the trial judge states, “This is prior to Mr. Ramsay being pulled over”. At other points during the course of her decision, the trial judge refers to the accused being “stopped” by the police.
The difficulty with this portion of the trial judge’s decision is that there is quite simply no evidence whatsoever to support these findings. The evidence indicates that at no point in time did the police use lights of any nature in order to stop the accused or require him to pull over. At no point in time did the police engage the use of a siren. There was no cruiser activity to obstruct the accused’s vehicle to require the accused to pull over, or, in any sense, to require the accused to stop.
The evidence is clear that the police officers simply followed the accused to his final
destination. Lest there be any doubt about this, this fact is confirmed by the accused’s evidence that he was not even aware of the police presence until he got to his destination, stopped his vehicle and exited his vehicle.
This evidence makes it clear that at no point in time did the police stop the accused’s vehicle. The trial judge’s finding that the accused’s vehicle was “pulled over” by the police and “stopped” by the police is not supported by the evidence.
In view of the fact that there is no evidence to support these findings, the trial judge made an overriding and palpable error.
I now turn to the question as to whether or not the accused was detained.
Detention
As previously stated, the evidence from the police indicated that they approached the accused once he had stopped his vehicle and proceeded to exit it.
The evidence from the police officers was that the accused essentially ignored them. The accused, despite the presence of the police officers, went to the man-door in the warehouse. He proceeded to use his phone to obtain the code that would permit him to unlock the door. The accused proceeded to unlock the door, enter the warehouse and then raise the garage door. His stated purpose was to deliver some furniture to the warehouse.
The police generally described this conduct as having the accused simply go about his business. PC Bridle described the accused’s actions in the following terms:
“I recall him looking my way and carrying on without skipping a beat to where the door was. At no point did he stop what he was doing to turn and acknowledge that he’s not speaking to a police officer. He was there for a purpose and he continued to execute that purpose, even while I was trying to speak with him and determine the nature of his business on the property. He’s on a mission to get inside, get that door open and unload his furniture. He was, like I said, the whole time I interacted with him he was moving forward, trying to do what he was trying to do.”
Crown Counsel has indicated that police duties include the preservation of the peace, the prevention of crime and the protection of life and property. Beyond this common law duty, the Police Services Act, R.S.O. 1990, c.P.15, in section 42(1) sets out:
The duties of a police officer include:
(b) Preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention.
The issue of the police interaction with members of the community was considered by the Supreme Court of Canada in R. v. Suberu, 2009 SCC 33, [2009][2] S.C.R. 460. In paragraph 3 of that decision the court states:
[3] However, as this Court held in Mann, not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter. Section 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual’s right to counsel under s. 10 (b). As Iacobucci J. aptly observed,
“The person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.”
[23] However, this latter understanding of detention does not mean that every interaction with the police will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police. This Court’s conclusion in Mann that there was an “investigative detention” does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes.
[25] For convenience, we repeat the summary set out in Grant, at para. 44:
Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[See R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353]
In this particular case there was no form of detention within the meaning of the categories articulated by the Supreme Court. At that early stage, the evidence indicates that the police officers let the accused continue to go about his business. The accused was not detained in a legal sense until the police had smelled alcohol coming from the accused and had otherwise satisfied the requirements of section 254 of the Criminal Code, R.S.C. 1985 c.c. 43.
At a later point in time, the police were satisfied that the accused had been driving a motor vehicle and had alcohol in his body. The evidence clearly indicates that the accused was not detained until the police had made those findings. It was at that point in time that the accused was detained in a legal sense.
The trial judge’s finding that there had been an unlawful detention appears to be based on the fact that she had previously found that there had been an unlawful stop. These findings are not supported by the evidence. Accordingly, these findings constitute palpable and overriding errors.
There is no evidence that the accused was stopped illegally or otherwise. The detention did not occur until the police were satisfied that the requirements of section 254 of the Criminal Code had been satisfied and that they had a basis to make a request for a roadside alcohol screening.
Conclusion
I conclude that there has been no violation of the accused’s section 9 Charter rights. In view of this, there is no purpose to be served in engaging in a section 24(2) analysis.
The matter is remitted back to the provincial court for a new trial.
I have endorsed the Crown’s Book of Appeals as follows: Both of you appearing respectively. In accordance with oral reasons rendered, the appeal is allowed. The matter is remitted to the Ontario Court of Justice for a new trial.
E N D O F E X E R P T O F P R O C E E D I N G S
Form 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Ginette McCoy
(Name of Authorized Person)
certify that this document is a true and accurate transcript of the recording of
R. v. Ramsay
in the
Superior Court of Justice
(Name of Case)
(Name of Court)
held at
89 James Street, Parry Sound
(Court Address)
taken from Recording
3011_HEARINGROOM_20170823_093209__all-
, which has been certified in Form 1.
11 September 2017
(Date)
(Signature of Authorized Person)