CITATION: Her Majesty the Queen v. Duregger 2017 ONSC 5834
COURT FILE NO.: CR-16-951-0000
DATE: 20170929
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Elizabeth Barefoot, for the Respondent
Respondent
- and -
Michael Duregger
Yaroslav Obouhov, for the Applicant
Applicant
HEARD:
September 19, 21 & 28, 2017
REASONS FOR DECISION ON DEFENCE PRETRIAL APPLICATION:
Sections 8, 9, 10(a) and 24(2) of the Charter
Conlan J.
I. Introduction
The Charges
[1] Michael Duregger ("Duregger") stands charged with serious drugs and weapons offences on a multi-count Indictment. He has elected to be tried by a jury. Jury selection is yet to occur.
[2] The charges are as follows:
Michael Duregger stands charged that, on or about the 3rd day of August 2016 at the Municipality of West Grey in the Judicial Region of Central West, did possess a substance included in Schedule I to wit; fentanyl for the purposes of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.
And further that Michael Duregger stands charged that, on or about the 3rd day of August 2016 at the Municipality of West Grey in the Judicial Region of Central West, did possess a substance included in Schedule I to wit; cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.
And further that Michael Duregger stands charged that, on or about the 3rd day of August 2016 at the Municipality of West Grey in the Judicial Region of Central West, did possess a substance included in Schedule I to wit; methamphetamine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.
And further that Michael Duregger stands charged that, on or about the 3rd day of August 2016 at the Municipality of West Grey in the Judicial Region of Central West, did possess a substance included in Schedule II to wit; cannabis marijuana, under 3 kilograms, for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.
And further that Michael Duregger stands charged that, or or about the 3rd day of August 2016 at the Municipality of West Grey in the Judicial Region of Central West, did possess substances included in Schedule IV to wit; testosterone propionate, testosterone isocaproate, testosterone decanoate, testosterone phenylpropionate, testosterone enanthate, metandlenone, trenbolone acetate, oxandrolone, also known as steroids, for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.
And further that Michael Duregger stands charged that, on or about the 3rd day of August 2016 at the Municipality of West Grey in the Judicial Region of the Central West, did have in his possession a prohibited weapon to wit; a flick knife while prohibited from doing so for life by reason of an order made pursuant to section 109 of the Criminal Code of Canada in the Municipality in Brockton on December 5, 2007 contrary to section 117.01(1) of the Criminal Code of Canada.
And further that Michael Duregger stands charged that, on or about the 3rd day of August 2016 at the Municipality of West Grey in the Judicial Region of Central West, did have in his possession a prohibited weapon to wit; a flick knife without being the holder of a licence under which he may possess it, contrary to section 91(2) of the Criminal Code of Canada.
The Application
[3] Duregger has made an application pursuant to the Charter.
[4] He alleges violations of sections 8, 9 and 10(a). Under section 24(2), he seeks the exclusion of all of the evidence seized by the police.
The Voir Dire
[5] Both sides filed written materials on the Charter Application.
[6] This is a facts, not a law-driven decision.
[7] In addition to the written materials, the Court heard testimony from two West Grey Police Service officers: (i) Robert Shering ("Shering") and (ii) Mark McComb ("McComb").
[8] Both officers are very experienced. Shering has been policing for more than 35 years, and McComb is in his 23rd year of service.
[9] The Defence called one witness - Duregger.
[10] The hearing, including submissions, lasted less than 2.5 days.
The Relevant Sections of the Charter
[11] Set out below are sections 8, 9, 10(a) and 24(2) of the Charter.
Everyone has the right to be secure against unreasonable search or seizure.
Everyone has the right not to be arbitrarily detained or imprisoned.
Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
- (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.
II. Analysis
The Onus and Standard of Proof
[12] The burden of proof is on Duregger to demonstrate, on a balance of probabilities, a violation of his section 8, 9 and/or 10(a) Charter right(s).
[13] Where a Charter violation is found, the burden is on Duregger to demonstrate, on balance, that the evidence in question ought to be excluded pursuant to section 24(2).
[14] It is important to note, however, that warrantless searches are presumed to be unreasonable under section 8. The onus then falls to the party seeking to justify the warrantless search, the Crown, to rebut, on balance, the presumption of unreasonableness.
[15] In our case, there was a warrantless search of the accused's motor vehicle. There was also a warrantless pat-down search of his person.
The Facts
[16] At about 3:36 p.m. on August 3, 2016, Shering received a radio call to be on the look-out for a black Cadillac with unattached plates and possibly driving erratically.
[17] Shering set-up position in a Church parking lot at the north end of the town of Durham, Bruce County. He was driving a marked police SUV. He was in a police uniform.
[18] McComb arrived on scene. He was driving a marked police car and wearing a police uniform.
[19] Shering gave some information to McComb. At a minimum, that information included something about the suspect Cadillac, the complaint (unattached or unauthorized plates), the owner of the plates being Duregger, and that Duregger was believed to be connected to drugs and violence.
[20] Shering had information that Duregger was possibly armed with a handgun.
[21] At about 3:46 p.m., the suspect Cadillac drove by where the officers were parked. There was nothing noteworthy about the manner of driving.
[22] Shering effected a traffic stop with emergency lights. McComb followed Shering who, in turn, followed the Cadillac.
[23] The Cadillac stopped in a small parking lot at 396 Garafraxa Street North in Durham.
[24] From this point on, the evidence of Shering and McComb is similar but not precisely ad idem.
[25] They both agree that the male driver and lone occupant, Duregger, exited the Cadillac quickly, before either officer was at the driver's door.
[26] Shering testified that Duregger first stood outside the Cadillac and held the driver's door close to his body.
[27] McComb stated that Duregger first attempted to walk away from the Cadillac.
[28] They both agree that Duregger stated that he had no driver's licence, ownership or insurance. He verbally identified himself as Michael Duregger.
[29] They both agree that there was a strong odour of marihuana coming from inside the Cadillac.
[30] They both agree that Duregger left the driver's door wide open.
[31] They both agree that Duregger was acting very strange. He was extremely nervous. He was looking around everywhere. He was pacing and walking in circles.
[32] They both agree that they had officer safety concerns.
[33] They both agree that Duregger eventually sat down in the rear of Shering's vehicle, without physical force or contact having been applied by either officer.
[34] Shering testified that they sort of guided Duregger to Shering's vehicle, while McComb stated that Shering had offered and Duregger accepted the chance to sit in the rear of Shering's vehicle with the door open and the air conditioning on because Duregger was complaining about being hot as it was very hot that day.
[35] They both agree that Duregger was frisk-searched by Shering before sitting in the rear of Shering's vehicle, a search that revealed an illegal flick-knife that was located in Duregger's front left pants' pocket.
[36] They both agree that the knife had white powder or residue on its blade.
[37] They both agree that, while in the rear of Shering's vehicle, Duregger was not handcuffed, the door was open and his feet were actually outside the vehicle.
[38] Shering testified that he then looked inside the Cadillac, without entering the car, from the open driver's door. He saw a used crack pipe, tinfoil, three pills and a butterfly knife.
[39] McComb did not see Shering do that, although he saw Shering walk towards the Cadillac.
[40] They both agree that, at some point, Duregger's father arrived on scene and made a nuisance of himself.
[41] They both agree that Duregger was arrested by Shering for possession of a prohibited weapon, being the knife seized from his pants. McComb testified that he tested the knife and determined that it could be opened with centrifugal force.
[42] According to Shering, that arrest occurred at 3:52 p.m., six minutes after the traffic stop. McComb has the arrest time as 3:50 p.m. and the right to counsel and caution being read to Duregger at 3:53 p.m.
[43] They both agree that, upon arrest, the keys to the Cadillac were retrieved from a lanyard around Duregger's neck. Shering stated that he did that, while McComb testified that he did.
[44] Shering testified that he searched the Cadillac for more weapons and for evidence in support of the offence that Duregger had been arrested for – possession of a prohibited weapon.
[45] McComb did not see Shering search the Cadillac, or at least he did not testify about that.
[46] Shering found within the Cadillac Duregger's wallet with his driver's licence inside, scales and white residue, a new crack pipe, a large sum of cash, five cellular telephones, a laptop, a tablet, steroids, and a large amount of marihuana in multiple Ziploc bags.
[47] They both agree that Duregger was then arrested by McComb for possession of narcotics for the purpose of trafficking. McComb has that arrest time at 4:00 p.m.
[48] They both agree that McComb then left the scene with Duregger, and Shering stayed.
[49] Shering testified that he then searched the Cadillac some more. Duregger's father was still on scene, causing trouble. Duregger's wife also arrived.
[50] A nearby motorcycle was seized.
[51] In total, the evidence seized that is sought to be excluded from the trial includes: 49.3 grams of fentanyl, 51 grams of cocaine, 103 grams of methamphetamine, 610 grams of marihuana, a plethora of liquid and tablet steroids of various kinds, $3440.20 in currency, multiple cellular telephones, two tablets, a scale, drug pipes, sandwich bags, a Nestle container with a false bottom in it, two licence plates, and two knives.
The Evidence of Duregger
[52] The reader will observe that my discussion of the facts does not account for the testimony of Duregger.
[53] That is because I do not accept the evidence of Duregger. He was relatively clear, though agitated and angry at times, when he testified, however, the major issue is that I simply do not think that his testimony is believable.
[54] According to Duregger, he parked his Cadillac in the lot and immediately exited, closed the driver's door, locked the car and started to walk towards his parents' door in the nearby building at 396 Garafraxa Street North in Durham.
[55] At the request of Shering, he identified himself verbally.
[56] When asked by Shering about driving documentation, he said that it might be in the car or at his house.
[57] All the while, Duregger kept walking towards the building door.
[58] Now close to the door, he was assaulted by the police. They grabbed him, forced him over to the police vehicle, forced him inside and slammed the door on his legs, leaving marks (though no photographs were ever taken by Duregger or anyone on his behalf, even after Duregger was released on bail).
[59] Shering had grabbed the car keys and then entered the locked Cadillac.
[60] When Shering returned, Duregger was arrested for narcotics. A search started, during which Duregger voluntarily surrendered the knife that he had on his person.
[61] According to Duregger, all of this occurred in the middle of the afternoon, in the summertime, very close to the downtown, on the busiest road in Durham (which is actually part of Highway 6), next to a residential building, and directly across the street from a store.
[62] I find that impossible to fathom.
[63] For two very experienced police officers, one of whom, Shering, is likely close to retirement and transferred to a smaller police force after spending many, many years in much larger centres, to risk their careers by brazenly grabbing Duregger, nearly dragging him over to a police vehicle, forcing him inside and slamming the door on his legs leaving him trapped in the rear in scorching heat while Shering unlocks the Cadillac and scours its interior to try to find something to justify the officers' abusive actions, all in circumstances where witnesses could reasonably be expected, seems incredulous to me.
[64] Even more so when it appears that there was no history or bad blood between either officer and Duregger.
[65] Add to the incredulity of the account the fact that Duregger has a lengthy criminal record replete with convictions for violence, weapons, breaches, escape lawful custody and property crime.
[66] Plus, he was a consumer of narcotics at the material time, a dealer of narcotics at that time, and suffering at the time from anxiety that he took medication for.
[67] Finally, his testimony on the voir dire was a moving target. From completely distancing himself from his will say that was filed as part of the Application Record, to admitting more and more throughout cross-examination about the LG cellular telephone that was seized by the police, to suddenly accusing the police on the second day of his testimony of showing up at his residence after he was released on bail and trying to shoot him, it appears that Duregger is either prone to hyperbole or simply not telling the truth.
[68] I prefer the evidence of the police officers.
The Defence Arguments About the Evidence of the Police
[69] I disagree with the Defence that there is anything implausible about the version of events testified to by Shering and McComb.
[70] For example, Mr. Obouhov, Defence counsel, questions why Duregger would leave the driver's door open when he obviously wanted to conceal the narcotics that were inside the Cadillac.
[71] Who knows. Maybe he was hoping that his father or his wife, both of whom arrived on scene very quickly, would try to tamper with or remove evidence. Maybe he wanted to signal to the police that he had nothing to hide. Or perhaps he was just in such a rush to try to avoid the officers that he left the door open.
[72] The point is that there are possible explanations for why Duregger did what he did.
[73] Mr. Obouhov further questions why the police would leave Duregger unrestrained in the rear of Shering's vehicle, with the door open, when the suspect was posing such a safety concern.
[74] There are two reasons for that, in my view. First, the officer safety concerns had diminished to some degree because (i) Duregger was now sitting inside a police vehicle instead of meandering around the parking lot and (ii) Duregger had been frisk-searched. Second, the police made a judgment call that they could effectively manage the scene with McComb standing by while, at the same time, minimizing the curtailment of the suspect's liberty.
[75] It was a reasonable decision for the police to make, in my assessment.
Findings of Fact
[76] I therefore make the following key findings of fact.
[77] The Cadillac was stopped to investigate unauthorized or unattached licence plates, though that was never told to Duregger.
[78] After stopping, Duregger immediately exited the Cadillac but left the driver's door open.
[79] Duregger stated that he had no driving documents to show but verbally identified himself.
[80] There was a strong odour of marihuana coming from inside the Cadillac.
[81] Duregger acted in an unusual and suspicious manner, causing the officers to reasonably have concerns for their safety.
[82] Duregger ultimately sat down in the rear of Shering's vehicle, without any physical force or coercion at the hands of either or both officers.
[83] Duregger was frisk-searched by Shering before sitting in the rear of Shering's vehicle. An illegal flick-knife was located on Duregger's person. That weapon had white powder or residue on its blade.
[84] While in the rear of Shering's vehicle, Duregger was not handcuffed, the door was open and his feet were outside the vehicle.
[85] Shering looked inside the Cadillac through the open driver's door, while standing outside of the car. He saw a crack pipe, tinfoil, three pills and a knife.
[86] Duregger was arrested for possession of a prohibited weapon - the knife seized from his pants that was found to open with centrifugal force.
[87] No more than six minutes elapsed between the time of the traffic stop and the time of the arrest.
[88] With the keys that were seized from Duregger upon his arrest, Shering searched the Cadillac for more weapons and for evidence. Numerous items were found.
[89] Duregger was then arrested for possession of narcotics for the purpose of trafficking.
The Significance of Those Findings of Fact
[90] During his oral submissions at Court on September 28th, Mr. Obouhov, Defence counsel, fairly and accurately acknowledged more than once that the success of the Charter Application hinges on this Court's findings of fact and depends almost entirely on this Court preferring the evidence of Duregger over that of the police officers.
[91] In short, unfortunately for Duregger, the findings of fact outlined above are fatal to the Charter Application.
The Section 10(a) Issue
[92] Taking the Defence position at its very highest, (i) Duregger was never advised of the reason for the traffic stop, (ii) he was detained as of 3:46 p.m., the moment that the Cadillac pulled into the parking lot, and (iii) he could not have possibly understood the reason for his detention absent being told specifically by the police.
[93] Even if this Court accepts all of those propositions, there is still no violation of section 10(a).
[94] "Promptly" does not mean immediately. By 3:52 p.m., six minutes after the stop, Duregger was arrested and knew full well the reason why he was not free to leave.
[95] More important, what transpired during those brief six minutes justifies the police not informing Duregger about the unauthorized or unattached licence plates complaint.
[96] Once Duregger exited the Cadillac and began acting suspiciously, the focus of the police was no longer on the Highway Traffic Act, and reasonably so.
[97] Essentially, Shering had no opportunity to confront the driver about the traffic complaint.
[98] By his own conduct, Duregger converted the scene in the parking lot from an investigation regarding licence plates into something else, and he did so before Shering even got to the Cadillac.
[99] Given the overall circumstances, the police's failure to tell Duregger that he was stopped for unauthorized or unattached licence plates does not rise to the level of a Charter violation.
The Section 9 Issue
[100] Here, the Defence argues that the frisk-search and having Duregger sit in the rear of the police vehicle were unnecessary steps when investigating a traffic complaint, and thus, they amount to an arbitrary detention.
[101] That argument ignores two important things.
[102] First, during the few minutes that elapsed between the traffic stop and the frisk-search, the behaviour of Duregger himself took the focus away from the initial reason for the stop of the Cadillac.
[103] Duregger was not searched as part of a traffic investigation; he was searched for officer safety reasons before having a seat in Shering's vehicle.
[104] Second, Duregger agreed to sit in the rear of the police vehicle. He was not forced to do so.
[105] Besides, once the knife was found during the frisk-search, any detention of Duregger was not arbitrary but was reasonably necessary so that it could be determined whether the knife was prohibited and whether there were other illegal items in plain view inside the Cadillac.
[106] Apart from the lack of any arbitrariness, we are dealing here with a very, very brief time period between the frisk-search and the arrest for possession of a prohibited weapon.
[107] To accept the argument of the Defence and label those seconds or minutes as giving rise to a Charter violation is not something that this Court is tempted to do.
The Section 8 Issue
[108] Standing is not disputed in this case. That is conceded by the prosecution.
[109] The Defence argues that the police had no authority to search the Cadillac. By "search", the Defence refers to the time when Shering actually first entered the car (as opposed to looking inside through the open driver's door).
[110] I disagree.
[111] The search of the Cadillac was warrantless but a lawful search incidental to the arrest of Duregger for possession of a prohibited weapon.
[112] Both subjectively and objectively, there was a reasonable basis for doing what Shering did – to confirm whether there were other weapons inside the car and/or other evidence to support the charge of possession of the prohibited flick-knife.
[113] Further, the search was conducted in a reasonable manner. Nothing was damaged. It did not take that long.
Section 24(2) of the Charter: The Analysis in R. v. Grant, [2009 SCC 32](https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html), [2009] 2 S.C.R. 353
[114] There are three lines of inquiry. First, an examination of the seriousness of the Charter-infringing state conduct. There is a spectrum, from inadvertent or minor violations to wilful or reckless disregard for the constitutional rights of an accused person. The question is whether admission of the evidence would send the wrong message to society that the courts condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct.
[115] Second, an evaluation of the impact on the Charter-protected interests of the accused. The more serious the impact, the greater the risk that admission of the evidence would breed public cynicism and bring the administration of justice into disrepute.
[116] Third and finally, an assessment of society's interest in the adjudication of the case on its merits. The more reliable the evidence is and the more important it is to the case for the prosecution, the greater the chance that the evidence will be admitted. The question is whether the truth-seeking function of the criminal trial process would be better served by admission or exclusion of the evidence.
[117] Although not strictly necessary, for the benefit of any reviewing Court, I will analyze, briefly, the section 24(2) issues.
[118] If I had accepted the evidence of Duregger, I most certainly would have excluded the evidence. I would have had no real choice. There would have been findings that the police assaulted Duregger, physically detained him for no reason [contrary to sections 10(a) and 9], stole the keys from him, and forced their way into the locked Cadillac (contrary to section 8).
[119] The police conduct would have been found to be egregious and amounting to serious infringements of Duregger's constitutional rights. The impact on Duregger would have favoured exclusion as well, given that he was assaulted, restrained and injured. No matter what the Court could have said about the reliability and the importance of the real evidence to the Crown's case, the abusive state conduct would have forced the Court to distance itself and exclude all of the evidence.
[120] If, given the factual findings that I have made, I am wrong in law about the section 10(a) issue, I would admitted the evidence as the violation was minor, not committed in bad faith, not with much impact on Duregger and gave rise to crucial and reliable evidence.
[121] If, given the factual findings that I have made, I am wrong in law about the section 9 issue, I would have admitted the evidence for the same reasons.
[122] If, given the factual findings that I have made, I am wrong in law about the section 8 issue, I would have admitted the evidence for the same reasons.
[123] Finally, if I am wrong about all of my legal conclusions on section 10(a), section 9 and section 8, but not accepting the testimony of Duregger, I still would have admitted the evidence.
[124] I would have found that the multiple violations of three Charter rights favoured exclusion, and that the impact on Duregger favoured exclusion, but that the third criterion so significantly favoured admission that, on balance, the evidence had to survive.
[125] The seriousness of the charges, the reliability of the evidence, the fact that its exclusion would end the prosecution, and the lack of any bad faith on the part of the police would have collectively tipped the scale towards admission of the evidence.
III. Conclusion
[126] For all of the above reasons, Duregger's Charter Application is dismissed.
[127] At the next Court appearance, dates for jury selection and trial will be set.
[128] It will be noted that Duregger was offered a jury selection date in Owen Sound in October 2017, however, his counsel was not available. Further, Duregger was offered judge-alone trial dates in October 2017, however, Duregger wishes to be tried by a jury.
[129] The next criminal sittings in Walkerton are not until mid-January 2018. Duregger is in custody, but he will have to wait until then, at the earliest, to be tried.
Conlan J.
Released: September 29, 2017
CITATION: Her Majesty the Queen v. Duregger 2017 ONSC 5834
COURT FILE NO.: CR-16-951-0000
DATE: 20170929
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
- and -
Michael Duregger
Applicant
REASONS FOR DECISION ON DEFENCE PRETRIAL APPLICATION:
Sections 8, 9, 10(a) and 24(2) of the Charter
Conlan J.
Released: September 29, 2017