CITATION: R. v. Cartwright and Patrick, 2017 ONSC 6858
COURT FILE NO.: CR 16-90000655-0000
DATE: 20171117
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JEFFREY CARTWRIGHT and
SARAH PATRICK
Defendants/Applicants
C. Leafloor, for the Crown/Respondent
I. Horic, for the Defendant/Applicant Cartwright
J. Berman for Defendant/Applicant Patrick
HEARD: October 2, 3, 4, 5, 6, 10 and 11, 2017
MCARTHUR J.
Overview
[1] Mr. Jeffrey Cartwright and Ms. Sarah Patrick are each facing five counts of possession for the purpose of trafficking and one count of possession of the proceeds of crime under $5000.
[2] The charges arose from an incident on May 12, 2015, when Mr. Cartwright was driving his car, with Ms. Patrick as the passenger. Officer Lewis McVey pulled the car over after a computer check on the plate showed that Mr. Cartwright’s driver’s licence had been suspended that day for unpaid fines. Officer McVey asked Mr. Cartwright for his driving documents. He then walked to the passenger side and asked Ms. Patrick her name and where she lived. Officer McVey returned to his scout car to confirm with police dispatch that Mr. Cartwright’s license had been suspended. He also ran investigative checks. Officer McVey discovered that both individuals had been charged with assaulting the other, and were on undertakings prohibiting them from being together. He arrested both for failing to comply. After arranging for the car to be towed, he conducted an inventory search of the car. Officer McVey found a backpack in the back seat. When he opened it, he found a large quantity of drugs and $460.
[3] Counsel for both defendants argue that Officer McVey violated their client’s ss. 8, 9, 10(a) and 10(b) rights under the Canadian Charter of Rights and Freedoms, and that the evidence should be excluded pursuant to s. 24(2). The Crown concedes that Officer McVey violated the s. 10(b) rights of both defendants, but argues that the other constitutional violations asserted by the defence are not made out. He further argues that any violations are minor and the evidence should be admitted.
[4] For the reasons set out below, I find that Officer McVey violated the s. 10(a) rights of both defendants by failing to advise them promptly of the reasons for their detention. He also violated the s. 10(b) rights of each by questioning them before providing their rights to counsel and by failing to advise them of their rights to counsel without delay. As it relates to Ms. Patrick, Officer McVey violated her s. 8 rights by questioning her during the Highway Traffic Act (HTA) detention without any lawful authority. He also breached her s. 9 right by continuing to detain Ms. Patrick for investigative purposes, without reasonable suspicion, after the HTA investigation should have been completed. For the same reason, Officer McVey violated Mr. Cartwright’s s. 9 right against arbitrary detention. Officer McVey also violated Mr. Cartwright’s s. 8 rights by searching his car without any lawful authority. I have further determined that the evidence must be excluded as its admission would bring the administration of justice into disrepute.
[5] At the outset, I propose to briefly address the facts. I will then turn to my analysis regarding the alleged violations against Ms. Patrick, before dealing with the breaches alleged by Mr. Cartwright. Finally, I will turn to my s. 24(2) analysis for both defendants.
The Facts
Overview of the Evidence of Officer McVey
[6] Officer McVey testified that at 3:20 a.m. on May 12, 2015, he noticed a car with its 4-way flashers on, parked in a roundabout driveway of an apartment building. No one was around the car. He ran the plate and discovered that the registered owner, Jeffrey Cartwright, had had his driver’s license suspended that day for failure to pay fines. As no one was in the car and it was not on the road, Officer McVey left the complex and parked close by. One hour later, at 4:20 a.m., he saw the car pull out the driveway. He followed it for a short time, and then activated his lights and siren, pulling the car over.
[7] Officer McVey intended to tell the driver that his licence was under suspension, serve him with the proper paperwork and ensure that he did not continue to drive. Mr. Cartwright was not arrestable, as he had not yet been notified about the suspension. Officer McVey approached the driver’s side and had a quick conversation with Mr. Cartwright, asking for his driving documents, which were provided. He then asked Mr. Cartwright to roll down the passenger window and walked to the passenger side to speak with Ms. Patrick. She identified herself as requested and, in response to his questions, told him that she lived in Oshawa.
[8] Officer McVey returned to his scout car. At that point he had no information to suggest that either Mr. Cartwright or Ms. Patrick were facing any charges. Officer McVey testified that usually a check on the plate will show if the registered owner has any outstanding charges. In this case, however, he said that the checks he did on the plate did not reveal that Mr. Cartwright had been charged with domestic assault.
[9] Officer McVey testified that once back at his car, he asked police dispatch to confirm that the driving suspension was valid. He also conducted “investigative queries”. After running both Mr. Cartwright and Ms. Patrick’s names through the Versadex data bank, he discovered that each was charged with assaulting the other. There was no information, however, on any release conditions imposed on either. Officer McVey contacted 14 Division to find out more information about the charges. He learned that both individuals had been released on undertakings prohibiting contact with the other. He also received confirmation from dispatch regarding Mr. Cartwright’s suspension. Officer McVey provided varying evidence about when he received the information from dispatch regarding the suspension, and when he learned that the defendants were facing charges against each other. I will outline this evidence in more detail when I turn to my analysis.
[10] Officer McVey radioed for assistance and two other officers arrived on scene. He walked over to the driver’s side to arrest Mr. Cartwright for failing to comply with an undertaking. He asked Mr. Cartwright to get out of the car. He then asked him if he knew he was on conditions. Mr. Cartwright said yes and Officer McVey arrested him. The other two officers walked over and stood by the passenger door. Officer McVey did a pat down search of Mr. Cartwright and put him in the back of the scout car. Officer McVey then returned to the car to arrest Ms. Patrick. He asked her if she knew she was on conditions. She responded yes. Officer McVey arrested her for failing to comply. The other two officers then took custody of Ms. Patrick. Officer McVey returned to his scout car and read Mr. Cartwright his rights to counsel.
[11] Officer McVey arranged for Mr. Cartwright’s car to be towed by a private contract towing company, as the car was stopped in a live lane of traffic. While he did not know the precise section number, he testified that he had authority under the HTA to remove cars causing an obstruction to traffic from roadways. Officer McVey then began an “inventory search” of Mr. Cartwright’s car. He explained that he did this to ensure that valuables were noted on the tow card, so if items went missing in transit there would be a record.
[12] As he searched the car, he found two cellphones. He brought them over to Mr. Cartwright and said something to him. Defence counsel argues that he said, “ridiculous”. While it is difficult to hear on the audio, he points out that Mr. Cartwright responded to what was said by saying, “why is that ridiculous.” Officer McVey said that he did not use the word ridiculous. I have listened to the enhanced audio a number of times, and I am unable to determine what the officer said.
[13] In any event, Officer McVey continued his search of the car. He found a backpack and opened it. Inside, he found two prescription pill bottles with the labels removed and a number of small plastic Ziploc bags, in different sizes, containing a white crystal like substance that he believed to be illegal drugs. It is agreed that the following was found in the bag: 26.37 grams of cocaine, 33.38 grams of crystal methamphetamine, 40.1 grams of MDA, 14.41 grams of ketamine, 54 hydromorphone one milligram pills (and 103 two milligram pills) and $460.
[14] At 5:06 a.m. Officer McVey advised Mr. Cartwright that he was under arrest for possession for the purpose of trafficking. Mr. Cartwright asserted that the officer had no legal authority to search his bag.[^1] Officer McVey failed to read Mr. Cartwright his rights to counsel at that time and only did so 23 minutes later, once they were back at the station. The officer explained that he became distracted when Mr. Cartwright became uncooperative. He agreed, however, that all Mr. Cartwright did was question him about the basis for the stop and search, and that he was respectful in so doing.
Assessment of the Evidence of Officer McVey
[15] I had concerns with respect to Officer McVey’s reliability and credibility. For example, he testified that Mr. Cartwright did not respond when asked if he wanted a lawyer. The in-car video, however clearly establishes that Mr. Cartwright said yes to that question. Similarly, Officer McVey said he did not believe that he asked Mr. Cartwright if he had any valuables in his car. Again, the video shows that he did ask Mr. Cartwright that question. Mr. Cartwright responded that he did not have any valuables in the car. Moreover, as I will set out in more detail in my analysis below, the video also shows that the officer incorrectly said that he received information about the suspension from dispatch after he had called 14 Division.
[16] By way of another example, the officer testified that he was unsure whether a tow truck driver would need to access the interior of the car to tow it. I found that evidence odd, as it seems to be a matter of common knowledge that cars can be towed without accessing the interior. More importantly, he agreed at the preliminary hearing that a tow truck driver does not really need to access the interior of the vehicle to be towed. In addition, the officer provided a number of different accounts of why he asked Ms. Patrick questions, which I will outline in more detail in my analysis.
[17] I will refer to other issues I had with Officer McVey’s evidence in my analysis, to which I now turn.
Analysis
Overview of Issues Relating to Ms. Patrick
[18] Section 10(b) of the Charter provides that upon arrest or detention, everyone has the right “to retain and instruct counsel without delay and to be informed of that right”. The section creates the right both to retain and instruct without delay, and the right to be informed of that right without delay. The Crown concedes that Officer McVey violated Ms. Patrick’s s. 10(b) rights to counsel in two ways. I agree.
[19] First, Officer McVey breached Ms. Patrick’s s. 10(b) rights by asking if she knew that she was on conditions before providing her rights to counsel on the fail to comply charge. The question could (and did) elicit an incriminating answer before she had been properly advised of her rights. Second, he breached her s. 10(b) rights by waiting over three hours before arresting Ms. Patrick for, and providing her rights to counsel on, the charges of possession for the purpose of trafficking. While not specifically canvassed in argument, it is clear that this concession would also make out a violation of Ms. Patrick’s s. 10(a) right to be informed promptly of the reasons for detention or arrest.
[20] I turn now to the two issues in dispute. First, did Officer McVey violate Ms. Patrick’s rights pursuant to s. 8 to be free from unreasonable search and seizure by questioning her? Second, did he violate her right to be free from arbitrary detention pursuant to s. 9 of the Charter? I will address each alleged breach in turn.
Issue One: Did Officer McVey violate Ms. Patrick’s s. 8 right to be free from unreasonable search and seizure by questioning her?
[21] In R. v. Harris, 2007 ONCA 574, the Court of Appeal found that the police had violated the s. 8 rights of the appellant by asking him questions when he was the passenger in a car that had been stopped for an HTA investigation. More recently, in R. v. Mhlongo, 2017 ONCA 562, the court again found that the s. 8 rights of a passenger in a car subjected to an HTA stop were violated when the police questioned him.
[22] Both cases suggest that the starting point of the analysis regarding whether Ms. Patrick’s s. 8 rights were violated, is determining whether she was detained when the car in which she was a passenger was pulled over for an HTA investigation. Cases such as R. v. Grafe (1987), 1987 CanLII 170 (ON CA), O.J. No. 796 (Ont.C.A.) and R. v. Hall (1995), 1995 CanLII 647 (ON CA), O.J. No. 544 (Ont.C.A.) establish that the police may properly request identification from an individual even when they have no reason to suspect the individual of any misconduct. Those cases, however, turn largely on whether the individual was under police detention. A detained person may reasonably feel compelled to answer a police request for identification. If a passenger is held to be detained during an HTA stop, then the police may only ask questions related to the HTA or other identified lawful purpose. (R. v. Harris, supra, at paras. 37; 40-42)
[23] Here, the Crown argues that Ms. Patrick, as a passenger in the car, was not detained as she was not subjected to any police demand. The same argument was advanced in Harris. There, however, the court found that the police took control of the passenger by making a demand. As a result, the court found it unnecessary to determine, in general terms, whether a passenger is detained when the car in which they are traveling is pulled over for an HTA investigation. Nonetheless, Doherty J. for the court, at para. 19, commented on the Crown submission that a passenger is not detained in such circumstances. He said:
The trial judge doubted the correctness of this submission. So do I. It is inconsistent with trial decisions of this province; e.g. See R. v. Pinto, [2003] O.J. No 5172 (S.C.J.); R. v. J.R.M., [2005] O.J. No 4708 (Ont.C.J.). It also runs against the unanimous recent decision of the United States Supreme Court in Brendlin v. California (2007) 551 U.S.
[24] In the same way, I doubt the correctness of the submission being advanced by the Crown in the present case. In my view, based on Harris, and the authorities cited in that case, Ms. Patrick was detained when Officer McVey pulled the car in which she was a passenger over for an HTA investigation.
[25] The next issue is why Officer McVey questioned Ms. Patrick and whether it was for an HTA, or other lawful, purpose. He provided different rationales for this action. He said that he asked out of curiosity. He also said he asked for simple investigative reasons.
[26] Officer McVey also said that he asked questions for officer safety reasons as it was a domestic incident. I have difficulty accepting that explanation, however, for the following reasons. First, according to Officer McVey, the initial computer checks he conducted did not reveal anything about outstanding domestic charges. While he said he saw some signs that caused him concern about Ms. Patrick, he did not say anything to her to reflect that. He did not ask if she was alright. He did not ask if she needed any help. He failed to ask any questions that would show a concern for her well-being. Second, the first time he ever said he asked Ms. Patrick questions for this reason was in cross-examination at trial. He failed to advance that rationale at either the preliminary hearing or in his examination-in-chief.
[27] Officer McVey also claimed that he asked Ms. Patrick for her identification so he could determine if she could drive the car. The Crown argues that this provided a lawful HTA basis for Officer McVey to question Ms. Patrick. I, however, reject Officer McVey’s explanation that he asked Ms. Patrick questions to determine if she could drive for the following reasons.
[28] First, Officer McVey failed to say anything in his examination-in-chief about questioning Ms. Patrick in order to determine if she could drive. Second, this testimony directly contradicted his evidence at the preliminary hearing, where he said that he asked Ms. Patrick questions as a “simple investigation” because he was “just curious for identity”. Third, this position is inconsistent with his evidence that he did not initially tell Mr. Cartwright that he was being investigated for driving while suspended, as he still needed to confirm that Mr. Cartwright’s suspension was in effect. Why would he start canvassing if the passenger could drive the car before confirming that the driver was in fact a suspended driver? Finally, he did not ask Ms. Patrick if she had a licence or was able to drive the car. If he was truly trying to find out whether she could drive the car, then he would have asked questions directed to that issue.
[29] I find that Officer McVey did not ask Ms. Patrick questions for any valid HTA purpose. Instead, he questioned her, as he said, because he was curious and for investigative reasons. He intended to use the information he received and run it through the police data bank for purposes unrelated to any HTA investigation.
[30] Ms. Patrick was under police detention. The officer had no reason to suspect Ms. Patrick of anything and had no lawful authority to question her. She was not advised that she could refuse to answer the questions posed. Ms. Patrick’s answers to the officer’s questions constitute an unreasonable seizure. Officer McVey violated her rights pursuant to s. 8 of the Charter.
Issue Two: Did Officer McVey violate Ms. Patrick’s s. 9 right to be free from arbitrary detention?
[31] Section 9 of the Charter provides that everyone has the right to be free from arbitrary detention. In R. v. Harris, supra, while the court found the appellant’s s. 8 rights had been violated, it rejected the argument that he had been arbitrarily detained when the police checked that information on the police data bank. More recently, in R. v. Mhlongo, supra, the court reached a different conclusion, finding that that in addition to having his s. 8 rights violated by the police questioning him when he was the passenger in a car stopped for an HTA purpose, the appellant was also arbitrarily detained while the police conducted checks on the information provided.
[32] In Mhlongo, the court explained that the distinction in the two cases turned on whether the continued detention of the passenger was related to an HTA purpose. The court noted that in Harris, the CPIC check of the appellant took place while the HTA investigation was still ongoing. The identification request did not prolong or alter the nature of the passenger’s detention. As a result, the continued detention of Harris was not arbitrary. In contrast, in Mhlongo, the passenger was detained after the HTA investigation had ended. As a result, in that case, the court found that the continued detention of the passenger, after the termination of the HTA investigation, prolonged his detention and turned what had been a lawful detention into an unlawful and arbitrary one.
[33] Thus, the determination of whether Ms. Patrick was arbitrarily detained will depend on whether the checks on her were “emeshed” in the HTA investigation. (R. v. Mhlongo, supra, at para. 34) That analysis will turn on when Officer McVey confirmed Mr. Cartwright’s driving suspension.
[34] Officer McVey provided varying and inconsistent evidence about the timing of the HTA checks versus the investigative checks he conducted. He initially said that it was after getting information from 14 Division that the defendants were on conditions that he got the information that the suspension was valid. He then qualified that somewhat, and said that he “believed” that he got the information regarding the suspension after he contacted 14 Division. When asked specifically what time he got the information, he admitted that he had not noted the times, but that he got the information of the suspension after he had contacted 14 Division. Officer McVey then said, twice, that he got the information about the suspension at “around the same time” that he received the information about the conditions from 14 Division. But the officer then admitted that he could not say which information he received first. Officer McVey also said that he contacted dispatch about the suspension when he got back to his car and that he received confirmation within a couple of minutes.
[35] Both the in-car video and an “enhanced” version of the audio portion were filed as exhibits. The evidence establishes that at 4:25:37, shortly after returning to his scout car, Officer McVey contacted dispatch to ask for confirmation of the driving suspension. Approximately two minutes later, at 4:27:35, the dispatch operator contacted Officer McVey and said something about the driving suspension. It is difficult to make out precisely what she said. At 4:31:21, the dispatch operator can be heard on the audio, but it is impossible to make out what she is saying. At 4:34, Officer McVey contacted 14 Division to ask whether the defendants were on conditions. Then, at 4:35:40, McVey can be heard saying, “So, she is breaching?”. The police dispatch officer is not heard at any time after Officer McVey contacted 14 Division.
[36] Given Officer McVey’s lack of notes, his shifting memory, and the poor quality of the audio of the in-car video, it is difficult to determine precisely when he received confirmation that the suspension was valid. What is clear from the audio is that Officer McVey’s evidence that he received this information only after contacting 14 Division about release conditions is unreliable. Looking at the totality of the evidence, I find that the dispatch operator confirmed the driving suspension at 4:27:35. While it is hard to make out what is being said, she is clearly communicating something about the driving suspension. Moreover, this timing is consistent with Officer McVey’s evidence that he received confirmation of the driving suspension within a couple of minutes of making his request.
[37] Thus, as of 4:27:35, Officer McVey had the information required to complete his HTA investigation of Mr. Cartwright. It was not until 4:34, about seven minutes after the suspension was confirmed, that Officer McVey called 14 Division to ask about conditions. The audio makes clear that during those seven minutes, the officer was conducting computer checks. This timing strongly suggests that at the point when Officer McVey received information about the licence suspension, he had not yet uncovered any information to suggest that either Mr. Cartwright or Ms. Patrick were facing any outstanding charges.
[38] I find that rather than properly concluding his HTA investigation following confirmation of the suspension, Officer McVey continue to conduct investigative checks without reasonable suspicion. A police officer may detain an individual for investigative purposes where there are reasonable grounds to suspect in the circumstances that the person is connected to a particular crime and detention is required. (See R. v. Mann, 2004 SCC 52 at para 45; R. v. MacKenzie, 2013 SCC 50 at para 38.) Officer McVey had no reason to suspect that either defendant was involved in a crime, or that an investigative detention was warranted. I am satisfied, therefore, that Ms. Patrick’s detention turned from lawful to unlawful, and thus arbitrary, at 4:27:35. At that point, the officer could (and should) have finished his HTA investigation by informing Mr. Cartwright of his driving suspension. His continued investigation of Ms. Patrick after that point violated her right to be free from arbitrary detention.
Overview of Issues Relating to Mr. Cartwright
[39] The Crown concedes that Officer McVey violated Mr. Cartwright’s s. 10(b) rights in three ways. I agree. First, Officer McVey failed to advise him of his rights to counsel “without delay” after arresting him for failing to comply. Without delay means that the police must advise an individual of their right to retain and instruct counsel immediately upon arrest or detention, subject to legitimate concerns for officer or public safety. (R. v. Suberu, 2009 SCC 33 paras. 41-42; R. v. McGuffie, 2016, ONCA 365 at para. 42) In the present case, Officer McVey delayed advising Mr. Cartwright of his s. 10(b) rights so that he could arrest Ms. Patrick. There were two other officers on scene. They could have arrested Ms. Patrick while Officer McVey dealt with Mr. Cartwright, or continued to guard Ms. Patrick until Officer McVey had finished reading Mr. Cartwright his rights. There were no valid reasons for Officer McVey to delay providing the s. 10(b) information. He violated Mr. Cartwright’s rights pursuant to s. 10(b) by failing to immediately advise him of his right to counsel.
[40] Similarly, Officer McVey did not provide Mr. Cartwright his rights to counsel for the possession for the purpose offences until they arrived at the station. He testified that he simply forgot, as he became distracted when Mr. Cartwright became uncooperative by asserting that the officer had conducted an unlawful search of his car. The reasons for the failure to immediately advise Mr. Cartwright of his rights to counsel may be relevant when determining remedy. The failure, however, represents a clear breach of the s. 10(b) right.
[41] Further, as with Ms. Patrick, Officer McVey violated the s. 10(b) rights of Mr. Cartwright by asking him whether he knew he was on conditions before arresting him and providing him his rights to counsel for the fail to comply charge.
[42] I also find that, for the reasons set out in my analysis with respect to Ms. Patrick, that Officer McVey violated Mr. Cartwright’s s. 9 right. Officer McVey confirmed that Mr. Cartwright’s licence had been suspended within about two minutes of returning to his scout car. At that stage, he did not have any reason to suspect that Mr. Cartwright was involved in any crime. The officer should have completed his HTA investigation. Instead, he engaged in an investigative detention without reasonable suspicion. That turned what had been a lawful HTA detention of Mr. Cartwright into an unlawful and thus arbitrary one.
[43] There are two remaining issues. First, did Officer McVey violate Mr. Cartwright’s s. 10(a) right to be promptly informed of the reasons for his detention? Second, did Officer McVey’s inventory search of Mr. Cartwright’s car violate his s.8 rights to be free from unreasonable search and seizure? I will address each issue in turn.
Issue One: Did Officer McVey violate Mr. Cartwright’s s. 10(a) right to be promptly informed of the reasons for his detention?
[44] Section 10(a) of the Charter provides that the police must inform the person detained “promptly” of the reason for his or her detention. The Ontario Court of Appeal has determined that this means immediately. (See R. v. Kelly, (1985) 1985 CanLII 3483 (ON CA), 7 O.A.C. 46; R. v. Nguyen, 2008 ONCA 49 at paras. 16-22)
[45] Officer McVey pulled Mr. Cartwright over to investigate him for driving while suspended. The law is clear that a roadside stop of a car for an HTA investigation is a detention. (See R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621; R. v. Harflett, 2016 ONCA 248 at para. 18) Although he had detained him, Officer McVey did not initially tell Mr. Cartwright why he was investigating him. It was only after the officer had arrested Mr. Cartwright for failing to comply that he told him why he had been pulled over and that his licence had been suspended for unpaid fines. This was approximately 28 minutes after he had detained Mr. Cartwright.
[46] The Crown argues that, despite this delay, Mr. Cartwright’s s. 10(a) right was not violated. He points out that in both R. v. Mhlongo (at para. 49) and R. v. Harris (at para. 47) the Court of Appeal made clear that a brief stop of a car for the purposes of a valid HTA investigation does not trigger s. 10(b) rights. He argues that in the same way, s. 10(a) rights are suspended during a valid HTA investigation.
[47] I cannot accept this argument. In R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, the Supreme Court held that the right to counsel does not apply when the police are validly conducting road-safety inquiries. The rationale for this is that it is impracticable to implement the right to counsel in this context. In contrast, there is no practical reason why s. 10(a) rights cannot be honoured in the HTA context. Indeed, as Charron J. noted in Orbanski, at para. 31: “I suspect every motorist would fully expect ‘to be informed promptly of the reasons’ why he or she is being stopped.” Officer McVey breached Mr. Cartwright’s s. 10(a) rights when he failed to immediately tell him why he had stopped his car.
Issue Two: Did Officer McVey’s inventory search of Mr. Cartwright’s car violate his s. 8 right to be free from unreasonable search and seizure?
[48] Officer McVey searched Mr. Cartwright’s car without a warrant. Warrantless searches are presumed to be unreasonable unless they can be justified pursuant to the test set out in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. Under Collins, a search will be deemed reasonable if it is authorized by law, the law itself is reasonable and the manner in which the search was carried out was reasonable.
[49] Officer McVey testified that he conducted an inventory search of the car. He agreed that he did not seize or impound the car. The car, however, was going to be towed to a contract lot and, as Officer McVey always did in such situations, he searched the car to note any valuables. While not able to refer to a specific section of the act, Officer McVey said that the HTA provided him with the authority to do so.
[50] Here, the Crown argues that Officer McVey had statutory authority to conduct an inventory search of the car pursuant to s. 170 of the HTA. Section 170(12) prohibits anyone from parking a car on a highway in a manner that would interfere with the movement of traffic. Section 170(15) provides that “upon discovery” of a car parked in contravention of s. 170(12), a police officer “… may cause it to be moved or taken to and placed or stored in a suitable place and all costs and charges for the removal, care and storage of the vehicle, if any, are a lien upon the vehicle…”
[51] Defence counsel argues that this section did not provide authority for the officer to tow the car. He argues that the car was not ‘discovered’ to be parked improperly by the officer, rather, the officer caused it to be parked in that manner when he pulled it over. While an interesting issue, in my view, it is one that does not need to be resolved in this case. Even if the officer was not authorized by the HTA to tow the car (because he did not ‘discover’ it) in my view he would have the authority under the common law to remove the car. (See R. v. Waugh, 2010 ONCA 100) It was parked in a live lane of traffic and posed a public safety risk. That said, while his common law authority would authorize him to remove the car from the road for safety reasons, that does not equate to a power to conduct an inventory search.
[52] Whether pursuant to statute or the common law, the officer must have had authority not just to tow the car, but also to search it.[^2] As noted by the court of appeal in R. v. Harflett, supra, at para. 29, “the police decision to call a tow truck to remove a vehicle does not justify an inventory search in every case.” In making that comment, the court cited the decision of R. v. Martin, 2012 ONSC 2298, at para. 36. There, Corbett J. said the following:
“Seizure” of a vehicle is not the same thing as towing a vehicle for a parking infraction. If, after police had concluded their business with Mr. Martin, the vehicle had been left in the fire lane, police would have been justified in ticketing and towing the vehicle. But in this situation they would have no greater right to search the vehicle than they would have had if they were removing the vehicle from an expired parking meter, or as a result of some other parking infraction. Illegal parking is not “abandonment” of a vehicle within the meaning of s. 221(1) of the Highway Traffic Act. Towing a vehicle for a parking infraction is not a “seizure” of the vehicle by the police, and does not justify an ‘inventory search’ of the inside of the vehicle.
[53] The Crown argues that the above does not apply to the present case. In making this submission, he points to similarities between s. 170(15) and s. 221(1) of the HTA. A number of cases have established that the police have authority pursuant to s. 221(1) of the HTA to conduct an inventory search of a car. (See R. v. Nicolosi, 1998 CanLII 2006 (ON CA), [1998] O.J. No. 2554; R. v. Ellis, 2016 ONCA 598) The Crown argues that, in the same way, s. 170(15) empowers the police to conduct an inventory search of a towed car.
[54] I cannot accept this submission for two reasons. First, s. 221(1) of the HTA empowers an officer to take a vehicle “into the custody of the law” if it is discovered abandoned on or near a highway. There is no similar authority in s. 170(15) for the police to take a car into the custody of the law. In R. v. Nicolosi, supra, those words in s. 221(1) were a significant factor in the conclusion that the section authorized an inventory search.[^3]
[55] Second, in my view this submission is not in accord with the reasoning set out above in Harflett (or the passage in Martin cited with approval by the court in Harflett). Whether the authority of Officer McVey to tow the car arose from s. 170(15) or from the common law, he had the car towed for a parking infraction; it was parked in a live lane of traffic. This is precisely the type of situation contemplated in Harflett. Officer McVey had no statutory authority to take custody of the car, nor was that power necessarily incidental to the officer’s common law power. In light of that, Officer McVey violated the defendant’s s. 8 rights by conducting an unlawful inventory search of his car.
Section 24(2)
Overview of s. 24(2)
[56] Section 24(2) provides that evidence that was obtained in a manner that infringed or denied any Charter rights shall be excluded if the admission of the evidence would bring the administration of justice into disrepute. The framework for the application of s. 24(2) was set out by the Supreme Court in R. v. Grant, 2009 SCC 32. The court must consider three lines of inquiry: i) the seriousness of the Charter-infringing state conduct; ii) the impact on the Charter-protected interests of the defendant; and iii) society’s interest in an adjudication on the merits.
[57] Each defendant argues that I should consider the Charter breaches against the other when considering whether the evidence should be excluded in their individual case. The Crown counters that such an approach would be contrary to such cases as R. v. Chang, 2003 CanLII 29135 (ON CA), [2003] O.J. No 1076 (Ont. C.A.) and R. v. Chan (unreported June 21, 2017, OCJ). The cases relied upon by the Crown, however, deal with the issue of standing. As noted in R. v. Lauriente, 2010 BCCA 72 at paras. 7 and 26, however, where each party has established that their own Charter rights have been infringed the issue of standing to seek a remedy pursuant to s. 24(2) does not arise. There, the court found that when considering a remedy pursuant to s. 24(2), a court is entitled to consider the cumulative effects of multiple Charter breaches in that same investigation, even if the breaches affected different applicants. (See also R. v. Wong, 2017 BCSC 1643 at para. 30; R. v. Sivarasah, 2017 ONSC 3597 at para, 182)
[58] There may well be circumstances where evidence that an officer breached the rights of one individual might be relevant in the s. 24(2) application of another. That is particularly so when the breaches are temporally related, as in this case. Not only could such evidence support a finding of a pattern of abuse, it could serve to rebut any suggestion that the infringements under consideration were isolated or inadvertent. Indeed, in R. v. Harflett, supra, when considering the first branch of the Grant test, the court referred to other cases in which the officer had been found to have violated the Charter rights of others. That seemed to play a part in the court’s determination that the violations in Mr. Harflett’s case were serious.
[59] That said, in my view it is unnecessary for the purposes of this case to decide whether I should consider the breaches against one defendant, when considering the s. 24(2) application of the other. Even without considering the breaches against the other, I find that the three branches of the Grant inquiry militate in favour of exclusion of the evidence for both defendants. I will first consider the s. 24 (2) analysis for Ms. Patrick before turning to my analysis for Mr. Cartwright.
Section 24(2) Analysis for Ms. Patrick
(i) Seriousness of the Charter-Infringing State Conduct
[60] The most serious infringements of Ms. Patrick’s rights arose at the roadside. Officer McVey obtained information from Ms. Patrick in violation of her s. 8 rights. He then arbitrarily detained Ms. Patrick, using the information he had improperly obtained, to run investigative checks without reasonable suspicion that she was involved in any crime. His actions showed a profound disregard for constitutional rights.
[61] The facts in Ms. Patrick’s case are quite similar to those in R. v. Mhlongo, where the court found that the breaches were serious. While the length of time that Ms. Patrick was arbitrarily detained was not as long as in Mhlongo, it is still the case the Ms. Patrick was unlawfully detained for the purposes of a criminal investigation when the officer lacked any reasonable suspicion.
[62] Moreover, the officer also violated Ms. Patrick’s s. 10 (b) rights. He asked her if she was aware that she was on conditions before arresting her and providing her rights. The Crown notes that it is not seeking to rely on the utterance of Ms. Patrick (or Mr. Cartwright) in response to the officer’s question. The utterances, of course, are not related to the charges before me. But even if they were, in my view, the Crown decision to not adduce them is irrelevant to an assessment of the seriousness of the breach. Whether or not the Crown seeks to rely on the evidence, the breach remains the same. Its seriousness is not diminished because the Crown has no use for the evidence at this trial.
[63] The Crown points to Officer McVey’s evidence that he asked the question because he wanted to determine if there had been any variations to the conditions. I do not, however, accept the officer’s evidence on this point. If his concern had been that there may have been variations, then in my view, he would have asked that question, either initially or as a follow up.
[64] Moreover, while I accept that the officer may not have asked the question for the purpose of eliciting incriminating evidence (which would render the breach very serious) his question showed an indifference to an important constitutional right. This indifference is further highlighted by the over three hour delay in advising Ms. Patrick that she was being arrested for possession for the purpose of trafficking and advising her of her right to counsel. While the evidence had already been obtained at this point, in my view this breach is part of the same transaction or course of conduct. There is sufficient temporal and contextual connection to consider this breach in the s. 24(2) analysis (See R. v. Pino, 2016 ONCA 389). Moreover, I found that the officer’s answers in cross-examination on this point to be troubling. His first response when questioned about the significant delay in advising Ms. Patrick of her rights, was to say that she had already been informed of her rights to counsel on the fail to comply charge. That, of course, does not relieve the officer of his obligation to inform her of rights on the new, more serious charges. His testimony on this point reflected his indifference to Charter rights.
[65] I find that the breaches were serious and favour exclusion of the evidence.
(ii) The Impact on the Charter-Protected Interests of Ms. Patrick
[66] The Crown argues that the s. 10 violations did not have a significant impact on Ms. Patrick’s Charter-protected interests. While I agree with that assessment regarding the latter breaches, I cannot accept that submission for the breach that arose at the roadside. The officer asked Ms. Patrick about an essential element (her knowledge of being on conditions) on the criminal matter for which he was about to arrest her. He elicited an incriminatory response. Ms. Patrick’s right to silence was undermined and she placed herself in further jeopardy, without having been advised of her rights. I cannot view the impact on her Charter rights as minimal.
[67] The section 8 and 9 violations had an even greater impact. The officer questioned her without any lawful authority when she was detained. He then used that information to engage in an investigative detention without reasonable suspicion, and Ms. Patrick was arbitrarily detained. The breaches affected both her privacy and liberty interests. This branch strongly favours exclusion of the evidence.
(iii) Society’s Interest on an Adjudication on the Merits
[68] The third branch of the Grant inquiry involves a consideration and weighing of society’s interest in a determination of the charges on their merits. This entails considering the reliability of the evidence and its importance to the Crown case.
[69] In this case, the evidence is reliable. Moreover, without the evidence, the Crown is not in a position to prove its case. That said, it is difficult to see how the Crown could prove its case against Ms. Patrick even if the evidence were admitted. The Crown has closed its case. The evidence establishes that Ms. Patrick was a passenger in a car registered to Mr. Cartwright. The backpack with the drugs was closed and in the backseat. Mr. Cartwright admitted ownership of the backpack. There is no link between Ms. Patrick and the bag. Given the lack of a connection between the backpack and Ms. Patrick (and the evidence linking the bag to Mr. Cartwright) it seems unlikely that the Crown would be able to establish her guilt beyond a reasonable doubt. (See R. v. Villaroman, 2016 SCC 33 at paras. 35-38) Thus, this factor does not militate strongly in favour of admission of the evidence.
(iv) Balancing the Factors
[70] The breaches were serious and the impact on Ms. Patrick’s Charter-protected rights was significant. With respect to an adjudication on the merits, there is nothing linking Ms. Patrick to the backpack, except for the fact that she was the passenger in a car belonging to Mr. Cartwright, who admitted that the bag was his. Thus, whether the evidence was included or excluded, a finding of not guilty would be almost inevitable. A balancing of the three branches of Grant leads me to the conclusion that the evidence should be excluded, as its admission would bring the administration of justice into disrepute.
Section 24(2) Analysis for Mr. Cartwright
(i) Seriousness of the Charter-Infringing State Conduct
[71] Officer McVey arbitrarily detained Mr. Cartwright when he conducted an investigative detention without reasonable suspicion. It has long been settled that police are not entitled to use an HTA investigation to engage in a wider-ranging investigation of the detainee without reasonable suspicion. This represents a serious Charter violation.
[72] The officer also searched Mr. Cartwright’s car without lawful authority. The Crown argues that this breach should be viewed as less serious, as the law was still developing. I cannot accept this submission. It is true that these events took place in 2015, which pre-dates the Court of Appeal decisions in R. v. Harflett, R. v. Dunkley and R. v. Ellis, all dealing with inventory searches. But as made clear in those cases, the law has been consistent for quite some time that an inventory search of a car will not be authorized by law and will therefore be unconstitutional where there is no statutory or common law authority for the search.
[73] Officer McVey testified that he always conducted an inventory search of cars he had towed; that was how he had been trained. He was unaware of any legal authority that would prevent him from conducting an inventory search of a car in such situations. He had no understanding that his powers to conduct inventory searches had limits. His actions were not inadvertent. He did what he always does in these situations - he conducted an inventory search without lawful authority and violated important constitutional rights. This was a serious breach.
[74] With respect to the s. 10(a) and 10(b) rights, they are less serious than the above breaches. But they reveal an indifference to constitutional rights on the part of Officer McVey. Moreover, as noted by the Ontario Court of Appeal in R. v. Nguyen, supra, at para. 21:
Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill – as it was in this case – the breach of the obligation to provide that information cannot be considered trivial.
[75] I find the breaches in this matter are serious and point to exclusion of the evidence.
(ii) The Impact on the Charter-Protected Interests of Mr. Cartwright
[76] As with Ms. Patrick, Officer McVey asked Mr. Cartwright a question about an essential element of the offence for which he was about to place him under arrest. He elicited an incriminatory response. Mr. Cartwright’s right to silence was undermined and he placed himself in further jeopardy. This cannot be seen as a minimal impact.
[77] With respect to the remaining. ss. 10(a) and 10(b) breaches, I agree with the Crown that those breaches did not significantly impact on his Charter protected rights. The same, however, cannot be said for the violations of Mr. Cartwright’s ss. 8 and 9 rights.
[78] While courts have held that drivers have a reduced expectation of privacy in their cars, that does not mean that an unlawful search is permissible. Here, the officer had no legal authority to search Mr. Cartwright’s car. As noted by the court in R. v. Harflett, supra, at para. 56, “the impact of an unjustified search is magnified where there is a total absence of justification.” (See also R. v. Dunkley, supra, at para. 58-59) Moreover, the officer investigatively detained Mr. Cartwright without any reasonable suspicion. Mr. Cartwright’s liberty interest was directly impacted as a result. The impact on Mr. Cartwright’s Charter-protected rights was significant and militates towards exclusion of the evidence.
(iii) Society’s Interest on an Adjudication on the Merits
[79] If the evidence is admitted, there is a compelling case against Mr. Cartwright. If the evidence is excluded, it will effectively gut the prosecution. The charges are very serious. This factor strongly supports admitting the evidence.
(iv) Balancing the Factors
[80] The charges are serious. Courts have made clear, however, that this can cut both ways. On the one hand, the seriousness of charges can be said to enhance society’s interest in an adjudication on the merits. But, where the consequences to the defendant whose rights have been infringed are particularly serious, the concern that the courts not be seen as condoning police misconduct becomes more pressing. It is essential that the seriousness of the charge does not overwhelm the other factors relevant to the s. 24(2) analysis. (R. v. McGuffie, supra at para. 73; R. v. Patterson, 2017 SCC 15, at para. 55)
[81] Moreover, as noted by Doherty J. in R. v. McGuffie, supra, at para. 63, “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.” Here, the first two branches of the Grant test point strongly towards exclusion. I find that the admission of the evidence would be seen as condoning blatant disregard for constitutional rights and would bring the administration justice into disrepute. Exclusion of the evidence is required in order to adequately disassociate the justice system from the police misconduct in this case and to reinforce the importance of individual rights.
Conclusion
[82] The officer violated the rights of both Ms. Patrick and Mr. Cartwright pursuant to ss. 8, 9, 10(a) and 10(b) of the Charter. I have determined that the admission of the evidence would bring the administration of justice into disrepute. As a result, the evidence is excluded pursuant to s. 24(2) of the Charter.
Justice Heather McArthur
Released: November 17, 2017
CITATION: R. v. Cartwright and Patrick, 2017 ONSC 6858
COURT FILE NO.: CR 16-90000655-0000
DATE: 20171117
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JEFFREY CARTWRIGHT and SARAH PATRICK
REASONS FOR JUDGMENT
McArthur J.
Released: November 17, 2017
[^1]: I ruled this utterance voluntary on October 10, 2017.
[^2]: In two recent decisions by the Ontario Court of Appeal, the court said that “the law has been consistent that an inventory search of a vehicle will not be authorized by law and will therefore be unconstitutional where there is no statutory authority invoked for the search.” (See R. v. Ellis, 2016 ONCA 598 at para. 56; R. v. Dunkley, 2016 ONCA 597 at para. 41(v)) While at first blush that would seem to suggest that police would lack authority to conduct an inventory search under common law, in my view that was not what was meant by the court. As noted in R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 at para. 30 a party seeking to justify an inventory search may rely on either statutory authority or common law authority for the search. The fact that the common law can in some situations justify an inventory search was also contemplated by the court in R. v. Harflett, supra, at para. 30.
[^3]: Similarly, in R. v. Wint, 2009 ONCA 52, the Court of Appeal held that officers were justified in conducting an inventory search after impounding the appellant’s car pursuant to s. 172(5) of the HTA after he had been found “stunt raising”. Black’s Law Dictionary defines impound as “to place (something, such as a car or other personal property) in the custody of the police or the court, often with the understanding that it will be returned intact at the end of the proceeding (emphasis added). In the present case, Officer McVey agreed that he was not impounding Mr. Cartwright’s car.