COURT FILE NO.: 75/17
DATE: 2018/05/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
- and -
Lois G. Dasilva
Applicant
Counsel:
J. Hanbidge, for the Crown
S. O’Neill, for the applicant/defendant, Lois Dasilva
HEARD: May 7 and 8, 2018
JUDGMENT
MITCHELL, J. (ORALLY):
Overview
[1] The applicant stands charged with one count of possession of Methamphetamine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “CDSA”).
[2] The applicant seeks to exclude, pursuant to s. 24(2) of the Charter of Rights and Freedoms (the “Charter”), evidence seized by police from a search of her purse and her motor vehicle on the basis that police violated her ss. 7, 8 and 9 Charter rights. This evidence consists of 6 grams of Methamphetamine.
[3] This application and the trial proper proceeded as a blended voir dire.
The Evidence
[4] Three police officers testified on the voir dire – Police Constables Ryan Pocrnich and Tom Policelli and Detective Constable Jeff Ordronneau. The latter provided his expert opinion on whether the quantity of drugs seized was indicative of possession for the purpose of trafficking.
[5] At approximately 5 pm on May 1, 2016, a concerned citizen placed a 911 call to report a “male” slumped over the steering wheel of a white van parked in the parking lot of Argyle Mall in London adjacent to the LCBO store. It was reported the individual was breathing but unresponsive. The vehicle’s license plate was also reported.
[6] At approximately 5:30 pm, police officers Pocrnich and Policelli were dispatched separately to attend at Argyle Mall in response to the “check welfare” call. EMS was also dispatched. PC Pocrnich arrived first and parked his marked cruiser nose-to-nose with the white van thereby blocking in the vehicle. PC Policelli arrived on the scene shortly thereafter.
[7] The van was observed to be parked in a single space facing the entrance to the LCBO. The vehicle’s engine was not running and its windows were rolled up. PC Pocrnich approached the passenger side of the vehicle and PC Policelli approached the driver’s side of the vehicle. The lone occupant of the vehicle was observed to be asleep in the driver’s seat slumped over the steering wheel as reported.
[8] The police officers attempted to rouse the individual by knocking on the windows. These efforts were unsuccessful. PC Pocrnich then opened the unlocked door to the front passenger side. The occupant of the vehicle was snoring loudly which PC Pocrnich described as consistent with sleeping. It was discovered the individual was female not male as had been reported. This individual was later identified as the accused.
[9] PC Pocrnich leaned across the passenger seat and attempted to rouse the accused by shaking her arm. At this same time, he observed a pink clutch purse at her feet. The purse was open and a clear, plastic sandwich bag and a $20 bill were observed protruding from the top of the purse. The contents of the baggie could not be seen. PC Pocrnich also observed the vehicle to be cluttered with clothing, containers and boxes strewn about the floor and seats. He testified that in his experience people will keep a really dirty car to conceal drugs and guns.
[10] As a result of PC Pocrnich shaking the accused, she awoke with a start and appeared to both PC Pocrnich and PC Policelli as disoriented. Although disoriented, PC Pocrnich did not observe any signs of impairment of the accused from either drugs or alcohol. There was no odour of alcohol or drugs in the vehicle. Her speech was not slurred. Albeit groggy when awakened, both police officers found her to be coherent.
[11] PC Pocrnich asked the accused for identification, which she provided. He then asked her for the vehicle registration and proof of insurance, both of which she provided. The accused was responsive and cooperative at all times.
[12] PC Pocrnich testified that he was concerned Ms. Dasilva might still be in medical distress and proceeded to search the purse belonging to the accused located at her feet. 4.5 grams of a substance, later confirmed to be Methamphetamine, were found in a vial within a plastic baggie in the purse.
[13] EMS attended at the scene and spoke with the accused. She refused medical treatment.
[14] Relying on the substance found in her purse following its search, Ms. Dasilva was arrested and charged with possession for the purpose of trafficking. The vehicle was then searched incident to arrest and a further 1.5 grams of a substance later confirmed to be Methamphetamine, was found.
Analysis
[15] The applicant argues her ss. 7, 8 and 9 Charter rights were breached when her motor vehicle and purse were searched.
[16] Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and the right not to be deprived therefore except in accordance with the principles of fundamental justice. Section 8 of the Charter provides that the accused has the right to be free from unreasonable search and seizure. Last, s. 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned.
(a) Was the search unlawful and a breach of the accused’s s. 8 Charter right?
(i) Was the search lawful because it was conducted pursuant to an investigative detention?
[17] The central issue on the application is: whether the search was unlawful and a breach of the accused’s s. 8 Charter right. The first line of inquiry is: whether the search was lawful because it was conducted pursuant to an investigative detention.
[18] The Crown concedes that the actions of PC Pocrnich by parking his cruiser nose to nose with the accused’s vehicle had the effect of detaining both the accused and her vehicle within the meaning of s. 9 of the Charter. The Crown also concedes that the subsequent search of Ms. Dasilva’s purse and vehicle were searches for the purpose of s. 8 of the Charter.
[19] However, the Crown submits that the detention was not arbitrary. Rather, the detention was in lawful exercise of PC Pocrnich’s common law powers of investigative detention to ensure police and public safety. The Crown further submits that any search done incidentally to that lawful detention is similarly lawful and not in breach of s. 8 of the Charter.
[20] As was noted by the Supreme Court of Canada in R. v. Mann[^1] at para. 36:
Any search incidental to the limited police power of investigative detention…is necessarily a warrantless search. Such searches are presumed to be unreasonable unless they can be justified, and hence found reasonable, pursuant to the test established in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. Under Collins, warrantless searches are deemed reasonable if (a) they are authorized by law, (b) the law itself is reasonable, and (c) the manner in which the search was carried out was also reasonable (p. 278). The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by a reasonable law and carried out in a reasonable manner: R. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631 at para. 21.
[21] The court in Mann[^2] articulated the test for when a search (in that case, a pat-down search) incident to an investigative detention is justifiable, as follows:
The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk…The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or nonexistent concern for safety, nor can a search be premised upon hunches or mere intuition.
[22] Therefore, the search of the accused’s purse pursuant to her detention is lawful only if the Crown establishes the detention was itself lawful and that the search was reasonably necessary in light of the totality of the circumstances.
[23] In support of PC Pocrnich’s decision to detain Ms. Dasilva and her vehicle and ultimately his decision to search her purse and the vehicle, the Crown relies on the Supreme Court of Canada decision in R. v. Clayton[^3]. In Clayton at paras. 26 and 31 the court held:
The common law regarding police powers of detention requires the state to justify any interference with liberty based on criteria which focus on whether the interference with liberty is necessary given the extent of the risk and the liberty at stake, and no more intrusive than reasonably necessary to address the risk. In determining the boundaries of police powers, caution is required to ensure the proper balance between enabling the police to perform their duties and the accused’s liberty and privacy interests.
[24] PC Pocrnich testified that he made the decision to “box in” Ms. Dasilva and her vehicle because it was a distress call and he was there to check the well-being of the person behind the wheel. He was concerned that the car was in drive with the person’s foot on the brake and the person might be startled by him approaching the car. He testified that because it was a busy parking lot he “didn’t want the vehicle to move forward.” PC Pocrnich said his conduct was intended to ensure public safety.
[25] So the first question is: Was the detention justified in the totality of the circumstances? Investigative detention is justified in circumstances where there are legitimate safety concerns arising out of suspected criminal activity or behaviour. That is not the case here. I find the circumstances do not justify boxing in the vehicle thereby detaining both Ms. Dasilva and the vehicle. The concerned citizen did not report that the engine was running. In fact, the engine was not running when police arrived. At its highest, detention was justified only until such time as PC Pocrnich was able to ascertain the status of the vehicle’s engine and its occupant. Once PC Pocrnich satisfied himself there was no risk, he was required to move his police cruiser from in front of the vehicle and restore Ms. Dasilva’s right of free passage.
[26] There were no objectively reasonable grounds to detain the accused in these circumstances. The circumstances did not create a threat to the safety of Ms. Dasilva, the police or the public. Sleeping at the wheel of her vehicle which was parked on private property without the engine running is not criminal activity, nor does it have a scent of criminality. The 911 call was placed out of concern for Ms. Dasilva’s welfare. Both police and EMS were on their way. While it may be standard protocol to dispatch both police and ambulance when a “check welfare” call is received, merely having been dispatched does not automatically support an investigative detention in all cases. The nature of the call dictates the duty and role of police and the extent to which an investigative detention may be justified in the totality of the circumstances, if at all.
[27] In these circumstances, I find that the detention of Ms. Dasilva and her vehicle was arbitrary and therefore in breach of her s. 9 Charter right. Similarly, the search in reliance upon a perceived lawful detention was likewise unlawful and in breach of Ms. Dasilva’s s. 8 Charter right.
(ii) Was the search justifiable in furtherance of investigating the “check welfare” 911 call?
[28] The next question is: Was the search justifiable in furtherance of investigating the “check welfare” 911 call? The Ontario Court of Appeal in R. v. Lee[^4] summarized the test relevant to a determination of this issue as follows:
To determine whether a search is authorized by the common law, a court must determine: (1) whether the police conduct in issue falls within the general scope of any duty imposed on the officer by any statute or common law, and (2) whether, in the circumstances, the police conduct involved a justifiable use of the powers associated with the engaged duty: R. v. Waterfield (1963), [1964] 1 Q.B. 164 (Eng. C.A.); R. v. Godoy (1998), 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311 (S.C.C.), at para. 12.
[29] As was noted by the court in Lee, police have a duty to respond to a 911 distress call.[^5] This was the duty being exercised by PC Pocrnich when he attended at the Argyle Mall parking lot. A key issue to be determined is whether the search conducted by PC Pocrnich was a justifiable exercise of police powers in light of that duty to respond.
[30] What is meant by a justifiable use of police power was described by Doherty J. A. in R. v. Simpson[^6] as:
… The justifiability of an officer’s conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.
[31] The Crown relies on the decision in R. v. Godoy.[^7] In Godoy the police received a 911 call that was disconnected before the caller spoke. The police traced the call and attended the apartment from where the call had originated. The person who answered the door assured police that everything was alright and attempted to close the door. The police prevented the door from closing, entered the dwelling and searched the apartment. They found the injured caller in the bedroom.
[32] In Godoy, police were suspicious that the safety of an individual was in jeopardy by virtue of the fact that the caller had terminated the 911 call before speaking with the dispatcher and the person answering the door to the private residence to which the 911 call was traced denied anything was wrong and refused the police entry.
[33] No issues of officer safety were engaged in the circumstances of this case. As was acknowledged by PC Pocrnich, only the safety of Ms. Dasilva was of concern to police. PC Pocrnich testified that he feared Ms. Dasilva was in medical distress. The facts here are readily distinguishable from the facts underlying the exercise of police search powers in Godoy. In the present case, the caller was not the complainant. Police were advised this was a “check welfare” dispatch and no criminal activity had been reported nor was suspected. The location of the individual given by the caller was private property to which the public had access.
[34] The Crown argues that PC Pocrnich was justified in continuing his investigation into the health and safety of Ms. Dasilva including a search of her purse in order to determine with certainty that she was not in medical distress. PC Pocrnich testified that his search was grounded in his concern for Ms. Dasilva and not as part of any suspected criminal activity. He testified that he believed the contents of her purse might hold the key to understanding the reason for her falling asleep in a parked car in a parking lot of a retail plaza mid-day. He speculated it might contain an EpiPen if her random sleeping was caused by an allergic reaction. He speculated it might contain medication which may have caused her drowsiness. He speculated she might be a diabetic.
[35] PC Pocrnich explained that, although he was able to wake the accused; and although he did not observe any indications of impairment by drugs or alcohol; and although admitting there was no immediate or great danger to Ms. Dasilva at that time, he remained concerned for her health to the point he believed he had a duty to further investigate her health status by conducting a search of her purse.
[36] PC Pocrnich did not ask Ms. Dasilva for her consent to search her purse nor did he ask if there was anything in the purse that she needed. He could not recall asking her if she needed medical assistance. Surely, the least intrusive means of determining whether Ms. Dasilva was in medical distress was to simply ask her. She was awake, coherent, cooperative and responsive.
[37] In these circumstances, the search of Ms. Dasilva’s purse was not justified as being reasonably necessary. It was not reasonable to have pursued the investigation further once Ms. Dasilva was roused as no visible signs of medical distress were noted. There was no urgency to the situation. EMS was on its way. In the absence of any criminal investigation or suspected criminal activity, the police investigation into the “check welfare” call was at an end at that point. PC Pocrnich admitted he had no medical training and was not able to diagnose any medical issues from which Ms. Dasilva might be suffering. That being the case, a search of her purse would not have assisted PC Pocrnich as he would have been unable to assess the significance of anything found in the purse relative to any medical condition. That was the job of EMS but only if the accused accepted their help which ultimately she did not.
[38] It defies reason that the police, who have no formal medical training, could be permitted to exercise their common law search powers in respect of an individual’s personal property without asking permission, for the sole purpose of assessing that individual’s medical condition, but emergency medical personnel with formal medical training could not do so and moreover could only assess and provide medical treatment with the consent of the individual.
[39] There was no reasonable justification for the search of Ms. Dasilva’s purse. Without the search of her purse no arrest would have been made and no vehicle search would have taken place. Without the search of the purse and the vehicle, no drugs would have been seized and Ms. Dasilva would have been free to go about her way.
Should the Methamphetamine seized during the unlawful search of Ms. Dasilva’s purse and vehicle be excluded as evidence at Ms. Dasilva’s trial pursuant to s. 24(2) of the Charter?
[40] Having found a breach of Ms. Dasilva’s s. 8 Charter rights, the last issue is: Should the Methamphetamine seized during the unlawful search of Ms. Dasilva’s purse and vehicle be excluded as evidence at Ms. Dasilva’s trial pursuant to s. 24(2) of the Charter?
[41] Section 24(2) of the Charter provides that where, in proceedings under ss. (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the 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. (emphasis added)
[42] I must now decide whether to exclude the evidence seized from Ms. Dasilva’s purse and vehicle, having regard to the three factors enunciated in R. v. Grant[^8]. They are:
(a) the seriousness of the State conduct violating the Charter, including the nature of the police conduct that led to the discovery of the evidence, whereby:
(i) the more severe, deliberate or reckless the State conduct is, the greater the need will be for the court to dissociate itself from the conduct by excluding the evidence, so as to preserve public confidence in the justice system and ensure conformity to the rule of the law;
(ii) an inadvertent, trivial or minor violation, the existence of good faith or exigency circumstances, such as the need to prevent destruction of evidence, will favour the admission of the evidence;
(b) the impact and extent of the violation on the Charter interests of the accused, including whether there is a serious incursion on the accused’s interests or whether the impact was merely trivial;
(c) the societal interest in the adjudication of the case on its merits, including whether the truth-seeking function of the criminal trial process would be better served by admitting or excluding the evidence, having regard to:
(i) the reliability of the evidence and the extent to which it is undermined by the breach(es);
(ii) the importance of the evidence to the Crown’s case; and
(iii) the notion that the discoverability of the evidence is no longer a determinative factor.
[43] As recognized by the first of the three factors developed in Grant, the conduct of the State falls on a continuum with the more egregious conduct justifying the exclusion of evidence under s. 24(2) of the Charter.
[44] The impact of these Charter violations on Ms. Dasilva was significant. These Charter breaches occurred in the context of an investigation into her safety and welfare. The police were dispatched to protect her and keep her safe. That was their duty and nothing more.
[45] The accused was arbitrarily detained and not advised of the reasons for her detention. An unreasonable search of her purse was conducted on an unfounded belief she was in medical distress and without her permission. This search was conducted without Ms. Dasilva being asked if she required medical assistance. Her Charter rights were violated despite her being responsive, cooperative and forthcoming with information and documentation. Her Charter rights were violated despite this being a check welfare call and there being no suspected criminal activity.
[46] Ms. Dasilva had a significant expectation of privacy in her purse and, to a lesser degree, in her vehicle. Although this expectation of privacy was not at the level associated with her person or her residence, Ms. Dasilva had the right to be left alone once she was roused and she had confirmed her welfare to police.
[47] The “help yourself approach” taken by PC Pocrnich when searching the accused’s purse purportedly in an effort to ascertain her medical condition in a non-emergent situation, was a significant intrusion on the accused’s interests. I find that the police acted recklessly and with blatant disregard for Ms. Dasilva’s Charter rights.
[48] Turning now to the third factor. I must determine whether the societal interest in the adjudication of this case on its merits, including whether the truth-seeking function of the criminal trial process, would be better served by admitting or excluding the evidence.
[49] The evidence seized from Ms. Dasilva is “real” or non-conscriptive evidence. This evidence is reliable and if admitted would not deprive Ms. Dasilva of a fair trial. To exclude the evidence will “gut” the Crown’s case against Ms. Dasilva. However, to admit all evidence obtained as a result of a Charter breach simply because it is unquestionably reliable and relates to a serious offence would render s. 24(2) meaningless.
[50] In excluding the evidence, the court in Mann commented that consideration of whether the exclusion of evidence would adversely affect the administration of justice involves a balancing of the interests of truth with the integrity of the justice system.[^9]
[51] The circumstances of this case are similar to the circumstances which were facing the court in R. v. Harrison[^10]. In Harrison the accused was pulled over while driving a rental vehicle because police erroneously believed he was in violation of highway traffic laws when in fact he was not. Once pulled over, the accused was detained because police observed him to be acting suspiciously. He produced all documentation requested by the police except his driver’s licence which he could not locate. The accused was arrested for driving with a suspended license. Incident to arrest, the vehicle was searched, ostensibly for the purpose of finding the missing license, and 35 kg of cocaine were found in sealed boxes in the trunk of the vehicle and seized. The court found that the detention was arbitrary and the search was unlawful.
[52] The Supreme Court of Canada in Harrison excluded the 35 kg of cocaine as evidence stating: “the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards. That being the case, the admission of the cocaine into evidence would bring the administration of justice into disrepute.”[^11] This reasoning is equally sound in the case at hand and perhaps more so because the evidence in the present case consists of a mere 6 grams of methamphetamine – being a relatively small amount of a Schedule 1 substance and was obtained as a result of a search conducted pursuant to a check welfare call without any suspicions of criminal activity.
[53] After considering and balancing the factors in Grant, I find that society’s interests are best served by excluding the evidence.
Has the Crown established beyond a reasonable doubt that the Methamphetamine was in the possession of Ms. Dasilva for the purpose of trafficking?
[54] In light of my ruling on the Charter application and the evidence resulting from the search of the accused’s purse and vehicle having been excluded, I find that the Crown has failed to establish the guilt of Ms. Dasilva beyond a reasonable doubt on the charge of possession of Methamphetamine for the purpose of trafficking.
[55] Accordingly, I find the accused not guilty of the single count on the indictment.
“Justice A. K. Mitchell”
Justice A. K. Mitchell
Released: May 29, 2018.
[^1]: 2004 SCC 52, [2004] 3 S.C.R. 59 (S.C.C.) [^2]: Ibid., at para. 40. [^3]: 2007 SCC 32, [2007] S.C.J. No. 32. [^4]: 2017 ONCA 654 at para.27. [^5]: R. v. Lee, supra at para. 28. [^6]: (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.) at p. 499. [^7]: 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311 (S.C.C.). [^8]: Supra at para.71. [^9]: Supra, at para. 57. [^10]: 2009 SCC 34, [2009] S.C.J. No. 34. [^11]: Supra, at para. 42.