ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
delton JERMAIN parchment
Applicant
COUNSEL:
Chris Leafloor, for the Respondent
Ronald Chu, for the Defendant/Applicant
HEARD at Toronto: May 22-24, 2018
RULING ON CHARTER APPLICATION
Low J. (Orally)
Introduction
1The applicant is charged with possession for the purpose of trafficking: cocaine, heroin, hydromorphone, and oxycodone and with possession of proceeds of crime.
2Mr. Parchment is a drug user with a significant criminal record including narcotics convictions and was known to the police officers involved in bringing the charges, Officer Toms and Officer Esteves.
3Mr. Parchment was arrested as a result of Officer Toms finding a piece of crack cocaine wrapped in plastic on the sidewalk in proximity to Mr. Parchment during an investigative detention. Subsequent to arrest, a level 3 search was carried out at 51 Division police station during which 9.57 grams of crack cocaine, 0.15 gram of heroin, 16 codeine pills, 24 hydromorphone pills and 19 dilaudid pills were found to be stored between Mr. Parchement’s buttocks inside his underwear.
4The applicant seeks to exclude from evidence all of the drugs on grounds that they were seized in contravention of Mr. Parchment’s rights under sections 8, 9 ,10(a) and (b) of the Charter.
5The charges arise out of an interaction between police and Mr. Parchment on the morning of December 27, 2016 on Queen Street East at Sherbourne street in the city of Toronto. The interaction started at 11:45 a.m.. Mr. Parchment was arrested at or shortly after 12:25 p.m..
Factual Background
6On the morning of December 27, 2016 Officers Toms and Esteves were on uniformed duty in the community response unit and were going westbound in their marked van. They noticed a car parked obstructing a fire hydrant. They pulled up and parked in front of the car to investigate.
7They also put over a transmission for backup to which Officers Tissalek and Roberts responded. These two officers were on scene no later than 11:47 a.m., as the computer in their scout car was used by Officer Esteves to do a CPIC check on Mark Medas, the driver of the car, stamped at that time. Officer Tissalek and Roberts subsequently assisted in controlling the scene, in transporting Mr. Parchment to the police station and in being present during the level 3 search.
8The interaction between Mr. Parchment and the police started when Officer Esteves approached the parked car on the driver side and Officer Toms approached the car on the passenger side. Both the driver Mark Medas and passenger, Mr. Parchment, were seen to exit the car. The officers approached the two males.
9Officer Toms recognized Mr. Parchment, the passenger. Mr. Parchment was known to Officer Toms from a previous investigation. I find that Officer Toms recalled that Mr. Parchment was on bail and that a condition of his bail was to refrain from possessing unlawful substances.
10I accept the evidence of Officers Toms that he smelled the strong odour of burning marijuana from Mr. Parchment and from the car. Officer Esteves also gave evidence that there was a strong smell of burning marijuana.
11I am satisfied that in light of Officer Toms’ recollection of Mr. Parchment’s bail terms and the present smell of burning marijuana, there was an evidentiary basis for a reasonable suspicion that Mr. Parchment was breaching his recognizance by possessing an unlawful substance.
12Officer Toms placed Mr. Parchment under detention to investigate. I accept Mr. Parchment’s evidence that there was a brief verbal interchange with Officer Toms wherein the officer said words to the effect of “Delton, what’s going on? Any drugs today?” to which Mr. Parchment replied “no”. Officer Toms replied, according to Mr. Parchment, “Bullshit, you always have drugs on you” to which Mr. Parchment, according to his evidence, replied, “I’m not lying”.
13According to Officer Toms, he read to Mr. Parchment his rights to counsel from his memo book, to which Mr. Parchment said that if he were to be charged he would like to consult a lawyer.
14Officer Toms then did a pat down search for weapons and found nothing of concern. Mr. Parchment testified that Officer Toms did not merely do a pat down search but instead went through his pockets, both upon initial detention and again after he was subsequently arrested at 12:25 p.m.. I do not accept this evidence.
15Officer Toms searched the car and found no drugs. There is no evidence as to the time at which he did the search. I accept his evidence that his search took about 1 minute. The issue of whether the police had any authority to search the car was not litigated as it was acknowledged that Mr. Parchment had no standing to challenge the search of the car.
16Officer Toms moved Mr. Parchment a few feet away from the car and stood near Mr. Parchment on the sidewalk. Mr. Parchment wanted to smoke and was permitted to do so. No drugs were found in the car. There was no lawful authority to search Mr. Parchment’s person for drugs. I accept Officer Toms’ evidence that he did not do so. These steps having been completed, Officer Toms acknowledged that these things having been done and no contraband having turned up, he had no further investigative path.
17I find that once those steps were taken, and Officer Toms had no further investigative plan or steps to take, the investigation upon which Mr. Parchment was initially detained –namely breach of recognizance by possession of unlawful substances—was over.
18Officer Toms heard Officer Esteves say that he was investigating the lawful possession of the car. He therefore did not let Mr. Parchment leave but continued to detain him. Officer Toms acknowledges that he did not tell Mr. Parchment that he was being detained on suspicion of being in possession of a stolen car and he did not re-caution him under s. 10 (b) of the Charter.
19The CPIC checks on the driver Mark Medas was time stamped at 11:47 a.m.; the check on Mr. Parchment was time stamped at 11:57 a.m. and the vehicle query at 11:59 a.m..
20Officer Toms evidence did not disclose any suspicion on his part that Mr. Parchment was involved in stealing or in possessing a stolen car. Officer Esteves’ evidence did not disclose any suspicion on his part that Mr. Parchment was involved in stealing or in possessing a stolen car. There was no evidence that the car was stolen. What Officer Esteves appeared to have been doing was to reach the owner of the car in the time between ascertaining the identity of the owner and 12:25 p.m. when Mr. Parchment was arrested.
21While Officer Esteves was trying to reach the owner of the car, Officer Toms continued to detain Mr. Parchment and maintained surveillance of him and of the area around him because he was aware that some detainees try to get rid of contraband. His attention was not fixed upon surveillance of Mr. Parchment for the entire duration of the detention, however, as he moved away from him briefly a number of times and his attention was on occasion directed elsewhere.
22Shortly after 12:25 p.m. when Mr. Parchment was still standing under detention, that Officer Toms noticed a plastic baggie on the sidewalk next to Mr. Parchement that was not there before his attention was distracted briefly by something in a southbound direction. The baggie contained a piece of what Officer Toms understood to be crack cocaine. It was at that point that Officer Toms placed Mr. Parchment under arrest for possession of cocaine.
The Level 3 Search
23He read Mr. Parchment his rights to counsel and did a search of his person incident to the arrest. No drugs were found in his clothing. Because Mr. Parchment appeared to be clenching his buttocks during the search, Officer Toms was concerned that he was concealing additional cocaine on his person and when Mr. Parchment was paraded before the staff sergeant at 51 division, he requested a level 3 search.
24A level 3 search was authorized by the staff sergeant. Mr. Parchment was taken to a private room where the search was done. The four officers engaged at the original scene were present for the search. Their recollections of who did what and in what order were not strong. This is not surprising. It is more likely than not that Officers Tissalek and Roberts stood by while Officers Esteves and Toms conducted the search.
25All of the officers were alive to the policy that one piece of clothing was to be removed at a time and that the detained person was not to be completely naked at any time. Mr. Parchment testified that he was left completely naked for a time with four officers in the room and that he suffered embarrassment as a result. I do not accept Mr. Parchment’s evidence that he was ever naked during the search. He was clothed in a jacket and clothing under the jacket when paraded. He was handcuffed the entire time until after the search was over. It was therefore impossible for him to have been completely naked.
26The applicant asserts also that the presence of four officers during the search rendered the level 3 search unreasonable as there were usually only two officers involved. I do not agree with this.
27That there should be more than one officer conducting the level 3 search is desirable for the detainee and for the officers in that the presence of a witness encourages probity. Whether two is the number that is reasonably necessary or some other number of officers cannot be determined in formulaic fashion. The number of officers reasonably necessary turns on the circumstances. Here, there was no express request by Officers Esteves and Toms that Officers Tissalek and Roberts stay and stand by in the room. On the other hand, it was, according to Officer Esteves, a welcome presence. During the search, Officer Toms was in and out of the room taking away articles for catalog.
28The CPIC check which had been done on Mr. Parchment discloses the following note in relation to Mr. Parchment:
CAUTION ARMED AND DANGEROUS
CAUTION VIOLENT
CAUTION ESCAPE RISK
29As well, it is apparent from the booking video that Mr. Parchment had his own agenda that he was repeatedly asserting by stating that he wanted to talk to the “officer in charge of my arrest” and ignoring the staff sergeant’s advice that he was the officer in charge. Mr. Parchment’s demeanor and the nature and content of his comments indicates (a) agitation and (b) an attempt to distract and to delay.
30Officer Tissalek testified, and I accept his evidence that Mr. Parchment was upset at the manner in which he was cuffed during transport and was still upset at booking, interrupting the staff sergeant who was giving him instructions.
31It may be that there is always a potential for volatility, and in the totality of these circumstances, in light of Mr. Parchment’s history for violence and the level of upset that he was demonstrating at the time, I am not able to say that it was unreasonable that four officers were present at the search with two standing by to ensure safety.
32I therefore do not find that the level 3 search was conducted in an unreasonable manner.
Charter Analysis
33That said, I am persuaded that there has been a serious breach of Mr. Parchment’s s. 9 Charter right. The finding of the baggie of crack cocaine emanated directly from that breach as did the arrest and the subsequent level 3 search following arrest.
34Investigative detention is lawful if there are reasonable grounds to suspect, in all the circumstances, that the individual is connected to a particular crime and that such a detention is necessary. (see R. v. Mann, 2004 SCC 52 at para. 45). The detention should be brief in duration and conducted in a reasonable manner.
35Mr. Parchment was detained at or about 11:45 a.m.. The suspicion at that time was that he was in possession of drugs. The pat down for weapons would have taken place probably within seconds of Officer Toms detaining Mr. Parchment, and the search of the car, taking, according to Officer Toms, about 1 minute, should not have taken the officers beyond noon, even if they hesitated and did not search the car immediately. There was no authority to search Mr. Parchment for drugs, and, in my view, once the officers had finished the search of the car and had no further investigative path in mind, the lawfulness of the investigative detention was spent. Mr. Parchment should have been permitted to go on his way.
36In my view, the fact that Officer Esteves was trying to ascertain whether or not the car had been stolen and was trying to reach the registered owner does not justify a further detention of Mr. Parchment. There was no evidence of a crime. There was no evidence that the car was stolen. A fortiori, neither officer testified of a subjective suspicion that Mr. Parchment was involved in a crime involving the car. Whatever may have been the situation vis a vis the driver, there is no suggestion that either officer had either a subjective suspicion much less an a suspicion grounded in evidence that Mr. Parchment was involved in an offence related to the car.
37According to Officer Toms, the reason for detaining Mr. Parchment after the drug investigation had turned up nothing was that Officer Esteves was investigating the car. In my view, that detention was contrary to s. 9.
38The unlawfulness of the detention was compounded by a failure to comply with s. 10(a) of the Charter to tell Mr. Parchment that he was now being detained on account of the car and the failure to advise, under s. 10(b), of his rights to contact a lawyer.
39In my view, Mr. Parchment was detained at least 25 minutes longer than was reasonably necessary to do the drug investigation which justified the initial detention. The additional 25 minutes of detention was unsupported by a reasonable basis for suspicion that he was involved in a crime concerning the car, and it was because of and during the unlawful segment of the detention that the knot of cocaine was located on the sidewalk in proximity to him resulting in his arrest.
40It is significant in my view also that Officer Esteves had already concluded that the car was not stolen before the discovery of the knot of cocaine on the sidewalk. The owner was not reached but the issue of whether the car was stolen or not was ascertainable on the CPIC search which was time stamped 11:59 a.m.. Even if there had been lawful justification for detaining Mr. Parchment while Officer Esteves tried to ascertain whether the car was stolen or not and to reach the owner, (and in my view, there was not), there is no explanation as to why Mr. Parchment was not permitted to leave once it was determined that the car was not stolen.
41There were breaches of s. 9 and of s. 10(a) and (b) of the Charter. But for the unlawful detention, there would have been no arrest and no search.
Section 24(2) Analysis
42I turn now to a consideration of whether the evidence should be admitted under s. 24(2) of the Charter.
43In the present case, there were three charter breaches.
44In my view, the right not to be arbitrarily detained is one of the core values of this country; it is one of the fundamental freedoms that sets our liberal democracy apart from totalitarian states. While the breach may have been more egregious had malice or bad faith been demonstrated, it was nevertheless, in my view, a breach of Charter rights at the high end of the spectrum of seriousness.
45When compounded with denial of the right to be told of the reason for the further detention and the failure to re-caution as to right to counsel, I am satisfied that the seriousness of the breaches militates in favour of exclusion of the products of the search.
46As to the second of the factors in Grant, the impact of the Charter breach on Mr. Parchment, I am referred to R. v. Zwelakhe Mhlongo 2017 ONCA 562 (C.A.). At para. 72, the court writes, per Blair JA.:
The unlawful detention was what gave rise to the appellant’s immediate right to counsel. By failing to inform him of his s. 10(b) rights, the police deprived the appellant of any meaningful opportunity to assert his legal rights during the investigative detention and, ultimately, he incriminated himself by throwing the drugs in his possession under the white vehicle. Protection against self-incrimination is an important concern underlying s. s. 10(b) right: see Suberu, at paras. 40 – 41. Had the appellant been informed of his rights – as he should have been, at or around 7:25 p.m. – events might well have unfolded differently.
47As in Mhlongo, I am persuaded that the impact on Mr. Parchment was grave and that it militates in favour of exclusion.
48As to the third Grant factor, it is obvious that the real evidence is central to the crown’s case and that without it, the prosecution will fall. This circumstance, however, is not of itself invariably sufficient to tip the balance in favour of inclusion where the evidence has come to light as a result of serious breaches of the accused’s Charter rights.
49In the circumstances before me, in light of the lengthy period of detention without justification compounded by breach of s. 10 rights, I am satisfied that permitting the impugned evidence would bring the administration of justice into disrepute.
Conclusion
50Accordingly the application is allowed and the drugs will be excluded.
___________________________ LOW J.
Date of oral Reasons for Judgment: May 28, 2018
Date of Release: June 20, 2018
COURT FILE NO.: CR1790000444
DATE: 20180620
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
delton parchment
Applicant
REASONS FOR JUDGMENT
LOW J.
Date of oral Reasons for Judgment: May 28, 2018
Date of Release: June 20, 2018