CITATION: R. v. Bejarano-Flores, 2017 ONSC 7480
COURT FILE NO.: 14-115011910
DATE: 20171213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ISAAC BEJARANO-FLORES
Applicant
Amanda Hauk, for the Crown
Kendra Stanyon, for the Applicant
HEARD: October 10, 2017
byrne, j.
Introduction
[1] Mr. Bejarano-Flores comes before this Court charged with one count of being in possession of MDMA for purposes of trafficking and one count of being in possession of the proceeds of crime. Both counts stem from a police traffic stop on November 19, 2014.
[2] Mr. Bejarano-Flores elected to be tried by a judge sitting without a jury.
[3] At the outset of trial, defence counsel brought a Charter application asserting that Mr. Bejarano-Flores’ s.8 and s.9 rights were violated. Defence counsel seeks to exclude the seized evidence pursuant to section 24(2) of the Charter.
[4] The evidence adduced on the trial proper and the Charter voir dire proceeded as a blended hearing.
[5] This is my judgment on the voir dire.
Overview
[6] I will begin with a brief overview of the evidence. I further develop the evidence in my analysis, as necessary.
[7] On November 19, 2014 at 23:36:12, PC Rand and his partner were dispatched to a 911 “gun call” at the York University Campus. A customer at Shopsy’s had reported to an employee that he had seen someone with a gun. At the time of the 911 call, the employee did not have a description of the person with the gun.
[8] At 23:36:56 dispatch broadcast that a male was just seen outside between York Lane and the Student Center.
[9] At 23:37:31 dispatch broadcast the following partial description: Male, black, early 20’s, 5’6”.
[10] At 23:37:58 dispatch aired a further description: medium build, wearing dark blue or black baseball hat, hood over cap, grey sweatpants, black jacket, hoodie is black.
[11] At 23:39:05 dispatch broadcast that security picked up a male matching that description on Vanier Lane and that he appeared to be trying to get into a cab. It was agreed that security was making observations by way of a video feed from surveillance cameras on the University Campus.
[12] At 23:39:32 security was advised not to approach the male.
[13] At 23:39:40 the cab was identified as an orange and green taxi van.
[14] At 23:40:14 the cab was seen on Founders Road approaching Steeles Avenue.
[15] At 23:41:41 Campus security lost their visual on the camera. Campus security last saw the cab westbound on Steeles Avenue, at the rear of the Track and Field center.
[16] At 23:43:19 PC Rand and partner spotted a green and orange, Beck Taxi on Steeles Avenue approaching Jane Street in the curb lane.
[17] At 23:44:13 dispatch broadcast that two customers were involved, the second customer gave the description, he did not see a gun, just saw the male reaching into waistband.
[18] At 23:44:55 PC Rand and partner commenced the traffic stop of the Beck Taxi van.
[19] PC Rand approached the passenger side of the Beck Taxi van, opened the door and instructed the lone male passenger to step out. The passenger complied. PC Rand explained the purpose for the stop and then conducted a pat down search for weapons. No force was used, no weapons were drawn, and the search was over in less than a minute. PC Rand did not discover a weapon or firearm as a result of the search.
[20] Constable Wenzall and his partner were the second unit on scene. Constable Wenzall conducted a search of the Beck Taxi van. His search was almost simultaneous with the pat-down search of the applicant. Constable Wenzall testified that he initially did a visual scan of the interior of the Beck Taxi van and saw a knapsack between the seats where the applicant had just been. He picked up that knapsack and felt that it had some weight to it. He testified that he still had immediate safety concerns and decided to search the knapsack. That search did not yield any firearm. However, the drugs that are the subject matter of this application, were found inside that knapsack. Constable Wenzall testified that the search of the van and knapsack was over in less than one minute, bringing the entire period of detainment of the applicant from the initial stop to arrest, to approximately two minutes.
Analysis
[21] The detention and searches all stem from the same factual underpinnings. This is common in cases of this nature. I am mindful that each issue engages a different Charter right and, although inextricably intertwined, each must be subject to an independent assessment.
Section 9: Arbitrary Detention
[22] I will first turn to the allegation that the police lacked sufficient grounds to investigatively detain Mr. Bejarano-Flores and, in doing so, violated his section 9 rights.
[23] The law is clear: a police officer may briefly detain an individual for investigative purposes if there are reasonable grounds to suspect, in all the circumstances, that the individual in question is connected to a particular crime and that such a detention is necessary.
R v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45
[24] There are no absolute guidelines in place for a judicial assessment of an investigative detention. Police investigations are, by their very nature, fluid events. As such, each matter must be resolved on a case by case basis.
Mann, at para. 28
[25] The standard for investigative detention is less than the requirement for reasonable grounds to arrest, but more than a mere hunch or speculation.
R. v. Simpson, 1993 CanLII 3379 (ON CA), [1993] O.J. No. 308 (Ont. C.A.) at para. 15 R. v. Basset, [2008] O.J. No. 3456 (Ont. S.C.)
[26] In R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, Binnie J. provided the following definition of reasonable suspicion at para 75:
The “reasonable suspicion” standard is not a new judicial standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.
[27] The requirement for objective and ascertainable facts as the basis for reasonable suspicion permits an independent, after the fact review by the court and, importantly, protects against arbitrary detention. Under the Collins framework, the onus is on the Crown to show that the objective facts rise to the level of reasonable suspicion such that a reasonable person standing in the shoes of the police officer, would have held a reasonable suspicion of criminal activity.
R v. Chehil, 2013 SCC 49, [2013] 35 S.C.R. 220, at para. 45
[28] The defence takes no issue with the initial vehicle stop. They agree that based on the information the police had available, it was objectively reasonable for the officers to conclude that the Beck Taxi was connected to the 911 gun call. I agree. PC Rand testified that he was 100 percent certain that the Beck Taxi van was the vehicle they were looking for. I find the distinct features of the vehicle, combined with the geographical location and temporal connection, resulted in a vehicle stop that was objectively reasonable and constitutionally permissible.
[29] The next issue is whether the continued detention after the applicant was removed from the vehicle was justified. The defence takes the position that it was not. The defence argues that as soon as the police realized that the applicant did not match the broadcasted physical description of the suspect, they were obligated to cease and desist the detention and search. The defence argues that by continuing, the officers ran afoul of the Supreme Court’s decision in Mann.
[30] In order to justify the continued detention, the Crown must show that the police had reasonable grounds to suspect, based on the totality of the circumstances, that the applicant was the individual connected to the 911 gun call that they were investigating.
[31] The defence argues that the physical description of the suspect and the applicant differ in material and significant ways and that the police were obligated to take these differences into account in formulating their decision to detain the applicant. The defence argues that the applicant’s detention became unlawful once the officers were aware that the applicant did not match the racial description of the individual provided in the 911 gun call.
[32] The first physical description of the suspect was broadcast one minute and 19 seconds after Detective Constable Rand and his partner were dispatched. The physical description was as follows; male, black, early 20’s and 5’6”. Approximately 27 seconds later, a second description was broadcast; medium build, wearing dark blue or black hat, baseball hat, hood over cap, grey sweatpants, black jacket, hoodie is black.
[33] In his testimony Detective Constable Rand, described the passenger as follows: male, Hispanic, 5’6”, in his 20’s, medium build. He said he was wearing a grey toque, white Adidas hoodie, grey puffy vest, black blue jeans and running shoes.
[34] Detective Constable Rand testified that it was only upon removing the applicant from the Beck Taxi van that he observed him not to have black skin. The officer himself is Hispanic and he recognized the applicant to also be Hispanic. He also testified that he observed that some of the clothing descriptors did not match. The officer testified that immediately upon observing the passenger to be a male, he was intent on doing a pat down search for the firearm.
[35] Detective Constable Rand testified that despite the non-matching descriptors, he had reasonable grounds to suspect, based the totality of the circumstances that the applicant was the person seen to be in possession of a firearm. He based this suspicion on the matching physical descriptors of the passenger, he was male, 5”6’, medium build, early 20’s combined with the following other information he deemed accurate:
• The vehicle involved a taxi van, which was rare for that area and no other Beck taxi vans had been observed in that area that night;
• The last known location of the Beck Taxi van as observed by York U security was very specific and consistent with Detective Constable Rand’s initial observations of the vehicle and the location of the vehicle stop;
• The traffic stop took place two minutes and 47 seconds after the last reported observation of the Beck Taxi van by York University security;
• There was one male inside the Beck Taxi van.
[36] Defence counsel argues that in failing to turn his mind to non-matching physical descriptors as was his obligation, the officer illegally detained the applicant.
[37] In Chehil, the Supreme Court of Canada stated at paras. 33-34:
Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances including favourable and unfavourable factors must be weighed in the course of arriving at any reasonable suspicion. As Doherty J.A. found in R. v. Golub (1997) 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 at p.751, “[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable”. This is self-evident.
However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.
Chehil, supra at paras. 33, 34
[38] This was not a case where the officer failed to factor in the non-matching descriptors. Quite the opposite. Detective Constable Rand testified that immediately upon removing the applicant from the taxi he was aware that his skin colour was not black and he took that into account. He was less sure of when he noticed the clothing description was different, but testified that it was likely during the pat-down search. He testified that he was less concerned about the non-matching clothing because it was not uncommon for suspects to change or discard pieces of clothing to avoid detection.
[39] Detective Constable Rand also explained that, after 18 years of policing experience, he is familiar with the frailties attached to identification evidence. He said that stress and a whole host of other factors can further impair an individual’s ability to accurately observe and retain information and that is why he does not place much weight upon it, especially when considered and combined with the information that he deemed accurate, such as the nature of the vehicle in question.
[40] In my view, Detective Constable Rand was entitled to rely on his 18 years of experience in assessing how much weight to attach to the physical descriptors. His conclusion, that such descriptions can often be wrong, was a reasonable one in the circumstances where he knew nothing of the perspective or ability of the witness, or witnesses, who gave the description.
[41] I considered the defence argument that the continued detention of the applicant was unreasonable the moment the officer realized that his skin colour did not match the broadcast description in light of the SCC’s decision in R. v. Clayton.
[42] In R. v. Clayton, 2007 SCC 52 [2007] 2 S.C.R. 725 at paras. 46-47, the Supreme Court of Canada commented on the issue of skin colour as a descriptor:
…. They [the police] were reasonable in taking this approach once the saw that both individuals, in a car that had just left the crime scene, matched the general description they had.
I accept Doherty J.A.’s conclusion that had the police stopped the vehicle and discovered that the occupants did not correspond to the description given by the 911caller, they would have had no reasonable grounds for the continued detention of the occupants. For example, had the caller described the individuals who were white, the police would not have had reasonable grounds for the continued detention of non-white occupants. On the particular facts of this case, however, based on their subsequent observations, there were reasonable grounds, as required by Mann, for the police to conclude that the two occupants of the car they had stopped were implicated in the crime being investigated.
[43] In Clayton, the information received from the 911 call was that 10 black males were in the parking lot of a strip club and four of them had guns. The caller identified four cars in the parking lot that had their headlights on: a black GMC Blazer, a black Jeep Cherokee, a tan-coloured Lexus LS and a white two door Acura Legend.
[44] The police responded and immediately blocked the exits. The first car stopped at the exit was a black Jaguar, not one of the cars identified by the 911 caller. The police observed two black males in the car, not four males as identified by the 911 caller.
[45] Despite the make and model of the car being different, the Court found the detention reasonable based on two individuals being in a car that had just left the crime scene and that they matched the general description provided. The subsequent actions of the occupants when interacting with the police justified the officers’ concerns for safety and the detention and search that followed.
[46] Importantly, what distinguishes Clayton from the case before me is the police in Clayton had only two physical descriptors available to them, skin colour and gender. It makes sense under those circumstances that there would be an emphasis on the accuracy of those two descriptors. In other words, the police had to get it right.
[47] The case before me is quite different. The applicant matched several of the physical descriptors. The vehicle description was distinctive and was a match. The geographic and temporal connections were also relevant and accurate. When combined with the other factors, they provided ample and reasonable grounds for the detention of the applicant. Even when taking into the consideration the non-matching descriptors, under the unique circumstances that attach to this case, I find the police were justified and the initial and continued detention of the applicant was objectively reasonable.
Section 8: Unreasonable Search
[48] Having concluded that the initial stop and detention of the applicant was justified, the next question is whether the pat-down search and the search of the knapsack were constitutionally justified.
[49] In Mann, the Supreme Court of Canada set out the four requirements necessary to justify a search conducted pursuant to an investigative detention:
(1) The police must have reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that a detention is necessary;
(2) The police officer is entitled to search the individual detained for a weapon where the officer has a reasonable belief that his safety or the safety of others is at risk;
(3) The search must be conducted in a reasonable manner; and
(4) The detention should be brief and the individual is not obligated to answer any questions during the investigative detention.
Pat-Down Search
[50] I will first address the pat-down search of the applicant conducted by Detective Constable Rand immediately following the traffic stop.
[51] In this case, there is no dispute that the police were responding to a 911 gun call. I find, for reasons previously stated, that the police had ample grounds to suspect that the applicant was the individual that had been seen with a gun on the York University Campus. 911 gun calls are given the highest priority. The immediate concern for officer safety and the safety of others is self-evident in the present case. The timing of the detention and the search were responsive to the circumstances in play. The officers responded appropriately to a priority one gun call within minutes. The officers received the 911 call from dispatch at 11:36 pm. Within nine minutes of receiving the 911 call, the police had located the suspect vehicle and detained the suspect and searched him incident to the investigative detention. It is reasonable to conclude that the suspect under detention would still have had access to a firearm during this brief time period. The danger to safety was immediate and the pat-down search justified. The search itself was brief, non-intrusive and reasonable. The pat-down search was lawful.
The Search of the Knapsack
[52] The police can search a bag inside a car for weapons incident to an investigative detention if there is still a reasonable concern for immediate officer safety following the pat-down search. The Court of Appeal for Ontario has upheld searches of cars pursuant to an investigative detention in R. v. Plummer 2011 ONCA 350, 272 C.C.C. (3d) 172 and R. v. Lee 2017 ONCA 654, 351 C.C.C. (3d) 187. As Sharpe J.A. stated in Plummer, “A search incidental to an investigative detention is defined and limited by the immediate concerns for officer safety.”
[53] Constable Wenzall and his partner arrived on scene just as the applicant was being removed from the vehicle. He immediately attended the open passenger door and scanned the interior looking for a firearm. He observed the driver in the front driver’s seat. He also found a knapsack in between the back seats where the applicant had been. He testified about the urgent nature of these types of calls and his immediate concern for safety as the reason he searched the van and the knapsack. Constable Wenzall testified that he picked up the knapsack and felt some weight to it and then he looked inside for a firearm. He did not find a firearm.
[54] Constable Wenzall said he did not look at the applicant to determine if he matched the description of the suspect. He testified that he did not have any communication with Detective Constable Rand about the results of the pat-down search. He explained that because the situation was unfolding rapidly and there were so many unknowns, it was important that each officer focus on their own individual task.
[55] The question becomes, was this broader search of the van and the knapsack permissible under the unique circumstances that attach to this case?
[56] The answer to that has to be no. And here is why.
[57] A search incident to investigative detention is anchored in preserving safety from immediate danger. In this case, the immediate danger was directly attached to the suspect who was being detained by Detective Constable Rand. While I appreciate that the applicant came from the van and that firearms can be easily concealed, I do not think that justified a broader investigative search. A simple instruction removing the driver from the van or seizing the knapsack without searching it, would have alleviated all immediate safety concerns. It was also incumbent upon Constable Wenzall to wait until he had the results of the pat-down search before proceeding further.
[58] In Plummer, the court found that a broader search may be permissible if reasonable concerns for safety still exist after the pat-down search. In that case, the pat-down search revealed a bullet-proof vest which, when combined with the alert information, justified the broader search.
[59] Those conditions do not exist in this case. I am mindful of the potential highly dangerous situation these officers faced on this occasion. The unknown factors that they had to deal with only heightened their sense of fear and immediate danger. Unfortunately, the circumstances that would have justified a broader search did not present themselves on this day. Accordingly, the search of the knapsack must be deemed unlawful.
Section 24(2) Analysis
[60] The final step in determining whether the evidence seized is admissible is the three step analysis as set out in R. v. Grant 2009 SCC 32, [2009] 2 SCR 353.
[61] First, I find the breach in this case not to be egregious. The police were acting reasonably and in good faith. Given the totality of the circumstances, the officers were bona fide in the discharge of their duties to deal with a call in a manner that ensured officer safety and public safety. Given the urgent nature of the circumstances that the officers were confronted I find that they were attempting to respond quickly and effectively. There was an honest and not unreasonable belief that the officers had the authority to search the knapsack. The breach falls on the less-serious end of the spectrum. The first Grant factor therefore favours admitting the evidence.
[62] Second, the impact on the Charter protected interest of the applicant, was, in my view, minimal. The question is whether the applicant had a legitimate privacy interest in the contents of his bag? He did. However, the impact on his privacy right was brief and circumscribed. The officers have a duty to investigate crime, preserve the peace, prevent the commission of further offense and apprehend criminals and protect life. The officers were acting towards this end when they conducted the search of the bag, they did not act recklessly. On the contrary, they acted prudently with restraint and in the interests of public safety. The second Grant factor also favours admitting the evidence.
[63] Third, society undeniably has a strong interest in this trial being resolved on its merits. The nature of the drugs involved is serious. They are reliable evidence and essential to proving the Crown’s case. The repute of the criminal justice system would be better served by admitting this reliable evidence. The third Grant factor clearly favours admitting the evidence.
[64] All three Grant factors favour admitting this reliable evidence. Balancing the interests in each, I find that the evidence is admitted.
Byrne, J.
Released: December 13, 2017
CITATION: R. v. Bejarano-Flores, 2017 ONSC 7480 COURT FILE NO.: 14-115011910 DATE: 20171213
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
ISAAC BEJARANO-FLORES
Applicant
REASONS FOR JUDGMENT
Byrne, J.
Released: December 13, 2017