COURT FILE NO.: CR-17-35
DATE: 2018/07/30
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Duane Gore
Counsel:
Matthew Collins, Counsel for the Crown
John Wright, Counsel for the Accused
HEARD: July 17, 2018
Ruling
LEROY, J.
[1] Duane Gore is charged with five counts of driving while disqualified contrary to section 259(4) of the Criminal Code arising from a vehicle stop on May 20, 2016.
Position of the parties
[2] Mr. Gore brought this Charter application under s. 9 arguing that the detention involved in the vehicle stop was arbitrary and the resulting identification evidence should be excluded from the trial in accordance with the Grant factors. DC Lamarche was involved in a criminal investigation, but lacked the requisite reasonable suspicion to undertake an investigative detention. The Grant analysis weighs in favour of exclusion.
[3] The Crown position is that the vehicle stop was done pursuant to a legitimate s. 216(1) Highway Traffic Act purpose, s. 9 of the Charter is not engaged as there is no invasion of a privacy interest and the application should be dismissed. The police power is to stop vehicles to check for licencing, insurance, mechanical fitness of the vehicle and driver sobriety.
Background
[4] The matter proceeded as a blended voir dire and trial. The parties formally agreed pursuant to s. 655 of the Criminal Code that the accused before the Court is the same Duane Ralph Junior Gore specified in the Indictment; the incident in question occurred in the Township of South Dundas on or about May 20, 2016; and at the time of the incident the accused was subject to five orders and/or suspensions disqualifying him from operating a motor vehicle pursuant to s. 259 of the Criminal Code.
[5] The burden on the accused is to establish a violation of his rights under the Charter on a balance of probabilities.
[6] The investigating officer, Detective Constable Lamarche, was the only witness.
[7] It is common ground that if the identification evidence is admitted into the trial, a conviction results. If the identification evidence is excluded, the accused will be acquitted.
The Evidence
[8] DC Lamarche parked his marked cruiser on the north shoulder of County Road 7 approximately one-half kilometer from the intersection with Marcellus Road, equidistant from property known as 3774 Marcellus Road at 11:00 a.m. He was engaged in general law enforcement stationed in Winchester and was performing “stationary patrol.”
[9] He knew Mr. Gore resided at or was connected to 3774 Marcellus Road and Mr. Gore was disqualified from driving. He had dealings with Mr. Gore and Mr. Gore’s partner, Donna Lewis in the past, but had never been to their home. He had information, without recall of the source, that Mr. Gore had been driving a black Ram half-ton.
[10] At 12:18, DC Lamarche observed a black Ram half-ton enter Marcellus Road at or nearby unit 3774 and travel southbound to the County Road 7 intersection. The Ram turned right at the intersection and headed westerly along County Road 7. The officer began travel westerly along County Road 7, but could not identify the driver from his distance when the Ram turned on to Road 7.
[11] DC Lamarche followed, traced the licence plate and confirmed Donna Lewis as the vehicle owner residing at 3774 Marcellus Road. DC Lamarche observed a male driver and female passenger. The driver was wearing a hat and sunglasses.
[12] The Ram turned left onto Bouck’s Hill Road and the officer immediately activated the traffic stop equipment on his vehicle.
[13] DC Lamarche said he stopped the Ram to check licencing. He suspected Mr. Gore was driving. He would not have stopped the vehicle otherwise. He acknowledged that for all he knew about the circumstances putting this very common vehicle in the stop, the driver could have been anyone.
[14] There was nothing unusual about the Ram or operation. There was no erratic driving or broken lights. The Ram responded immediately to the stop instruction.
[15] On cross-examination, DC Lamarche confirmed that based on his intelligence, he suspected Mr. Gore, notwithstanding the driving prohibition, drove the Ram. He disagreed with the suggestion that this was a stop based on hunch or gut feelings. He described the stop as targeted policing.
[16] DC Lamarche approached the driver side front window. His past interaction with Mr. Gore, his facial record on the computer and Mr. Gore’s self-identification confirmed Mr. Gore was operating the Ram. DC Lamarche confirmed request for licence and insurance. Mr. Gore did not produce a licence and the insurance card was expired. DC Lamarche arrested Mr. Gore for driving while disqualified at 12:25. Defence does not take issue with the arrest procedure.
Governing principles
[17] Justice Watt summarized the governing principles in R. v. Gonzales 2017 ONCA 543 as follows:
[49] Several principles have a say in an assessment of this ground of appeal.
[50] First, the Charter guarantee against arbitrary detention.
[51] The purpose of the guarantee against arbitrary detention in s. 9 of the Charter is to protect individual liberty from unjustified state interference: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 20. Absent a law to the contrary, individuals are free to do as they please. On the other hand, the police, more broadly the state, may act only to the extent that the law empowers them or it to do: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 15.
[52] A law, whether originating in a statutory enactment, the common law or some combination of sources, may authorize and prescribe the limits on a detention. Provided the detention is at once authorized by law and does not exceed any limitations the law imposes upon it, the detention is lawful and thus not arbitrary within s. 9 of the Charter: Mann, at para. 20.
[53] In approaching a complaint of arbitrary detention, a court should consider first whether some lawful authority sanctions the detention, then, if permitted, whether the detention falls within or beyond any applicable limits on that authority.
[54] In this case, the trial judge concluded that the detention was lawful under s. 216(1) of the HTA, even though the primary motivating factor was Det. Ward’s pursuit of his investigation of the daytime, residential break-ins in the area. Accordingly, it is necessary to consider whether the detention falls within the scope of s. 216(1) of the HTA.
[55] Section 216(1) of the HTA authorizes a police officer to stop vehicles for highway regulation and safety purposes, even where the stops are random: Brown v. Durham, at para. 21; R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257, at p. 1288; R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 492. This detention is circumscribed by its purpose. It is limited to the roadside. It must be brief, unless other grounds are established that permit a further detention. An officer may require a driver to produce the documents drivers are legally required to have with them. To check those documents against information contained in databases accessible through the onboard computer terminal in police vehicles, an officer is entitled to detain the vehicle and its occupants while doing so: Brown v. Durham, at para. 24.
[56] In addition to requiring production of various documents associated with the operation of a motor vehicle, a police officer, acting under the authority of s. 216(1) of the HTA, may also make a visual examination of the interior of the vehicle to ensure their own safety during the detention: Brown v. Durham, at para. 24; Ladouceur, at pp. 1286-1287; R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, at pp. 623-24. However, s. 216(1) does not authorize more intrusive examinations of the interior of the vehicle or inquiries of any occupant directed at subjects not relevant to highway safety concerns: Brown v. Durham, at para. 24; Mellenthin, at p. 623-24.
[57] A trial judge’s finding that highway regulation or safety concerns was a purpose that animated a traffic stop is a finding of fact. As a consequence, the finding is subject to deference and cannot be set aside by this court unless it is unreasonable or based upon a material misapprehension of the evidence adduced at trial: Brown v. Durham, at para. 27.
[58] Sometimes, a traffic stop may have more than one purpose. However, the mere existence of another purpose motivating the stop, beyond highway regulation and safety concerns, does not render the stop unlawful. But the additional purpose must itself not be improper, or proper but pursued through improper means, and must not entail an infringement on the liberty or security of any detained person beyond that contemplated by the purpose that underpins s. 216(1): Brown v. Durham, at paras. 31, 34, 37-39 and 45.
[59] Gathering police intelligence falls within the ongoing police duty to investigate criminal activity. And so it is that it is permissible for police to intend, within the confines of a stop and detention authorized by s. 216(1), to avail themselves of the opportunity to further the legitimate police interest of gathering intelligence in their investigation of criminal activity: Brown v. Durham, at paras. 31 and 33; R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 254-55.
[60] Stops made under s. 216(1) will not result in an arbitrary detention provided the decision to stop is made in accordance with some standard or standards which promote the legislative purpose underlying the statutory authorization for the stop, that is to say, road safety concerns: Brown v. Durham, at paras. 51-54. Where road safety concerns are removed as a basis for the stop, then powers associated with and predicated upon those concerns cannot be summoned to legitimize the stop and some other legal authority must be found as a sponsor: Simpson, at pp. 492-493.
[61] Police duties and their authority to do things in the performance of those duties are not co-extensive. Police conduct is not rendered lawful merely because it helped the police perform their assigned duties. Where that conduct interferes with the liberty or freedom of an individual, it will be lawful only if and to the extent it is authorized by law: Simpson, at p. 493.
[62] Absent statutory authority to legitimize police conduct, the common law may provide a place of refuge. Precedents supports a two-step analysis where police conduct interferes with an individual’s liberty. The first inquiry or step requires a determination of whether the police conduct that gives rise to the interference falls within the general scope of any duty imposed upon an officer by state or at common law. Where this threshold has been met, the second step or stage requires a determination of whether the conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty: Mann, at para. 24. This is the Waterfield test, first expressed by the English Court of Criminal Appeal, and adopted, refined and incrementally applied by our courts: Mann, at para. 25. See also R. v. Waterfield, [1964] 1 Q.B. 164 (C.A.).
[63] The second step or stage involves and requires a balancing of the competing interests of the police duty and the liberty interests at stake. This entails consideration of whether an invasion of individual rights is necessary for the police to perform their duty, and whether the invasion is reasonable, in light of the public purposes served by effective control of criminal conduct, on the one hand, and respect for the liberty and fundamental dignity of individuals, on the other: Mann, at para. 26. Several factors exert an influence in applying this second test, the justifiability assessment:
i. the duty being performed;
ii. the extent to which some interference with individual liberty is necessary to perform that duty;
iii. the importance to the public good of the performance of that duty;
iv. the liberty intruded upon;
v. the nature and extent of the intrusion; and
vi. the context in which the police/citizen confrontation took place.
See Mann, at para. 26; Simpson, at pp. 499-500.
[64] Where a person is detained by police in the course of efforts to determine whether that person is involved in a criminal activity being investigated, that detention can only be justified if the detaining officer has some articulable cause, or said in another way, reasonable grounds to suspect, the person is involved in the investigated activity. This standard includes both objective and subjective components: Mann, at paras. 27 and 33; Simpson, at p. 500.
[18] Justice Watt ruled that the stop in Gonzales was arbitrary given that the officer denied there was a traffic-related purpose to the stop. Section 216(1) afforded no basis for the stop. The officer’s pursuit was the investigation of residential break-ins in the area. The officer was acting in the course of his duty. He did not have a constellation of objectively discernible facts to generate reasonable cause to suspect that the occupants of the vehicle were criminally implicated in the residential break-in activity under investigation. The evidence discovered in the back of the van was excluded based on the Grant analysis.
[19] The same outcome resulted in R. v. Simpson, 1993 CanLii 3379 where Officer Wilkins declared his decision to stop the car had nothing to do with enforcement of laws relating to operation of motor vehicles and the Court ruled his suspicions were not objectively reasonable.
[20] In other situations, the issue becomes whether the officer in the course of a section 216(1) stop encroaches on the privacy interests of the driver and passengers contrary to s. 8 or s. 9 rights involving arbitrary detention of passengers – R. v. Pinto, 2003 ONSC 11404; R. v. Taylor 2013 ONCJ 814.
[21] Where an officer has grounds for stopping a motorist that are reasonable and can be clearly expressed, the stop is not regarded as random and the detention is not arbitrary. In R. v. Wilson, 1990 CanLII 109 (SCC), [1990] 1 S.C.R. 1291 for example: The police stop was not arbitrary and did not violate s. 9 of the Charter. It was not random, but based on the fact - which merits consideration in a rural setting - that appellant was driving away from a hotel shortly after closing time. This police stop, even if it were to be considered a random stop and as such constitute an arbitrary detention in violation of s. 9, was justified under s. 1 for the reasons given in R. v. Ladouceur, [1990] 1 S.C.R. 000.
[22] In R. v. Bzezi, 2018 ONSC 170, Justice Donohue was satisfied on the evidence as a whole that the Officer had no other agenda than to check the licence, as he was authorized to do under s. 216 of the Highway Traffic Act. To the extent that the officer was ‘curious’ of who was driving this rental vehicle in a high drug trafficking area, Justice Donohue did not find that this altered his purpose in performing a simple traffic stop. Justice Donohue did not find the officer had a second purpose or investigation in mind. He did not question the parties further as to their reason for being in the area. He investigated the driver’s licence.
Principles Applied
The purpose of the stop
[23] DC Lamarche candidly stated that he stopped the vehicle because he believed Mr. Gore was the driver knowing Mr. Gore was disqualified from driving.
[24] The defence submission is that this was not an HTA stop, rather it was a ruse or gimmick for general investigatory work, namely the apprehension and identification of a driver disqualified from driving under section 259 of the Criminal Code. DC Lamarche’s subjective suspicions were not objectively sustainable. DC Lamarche was vague on how it was he came to this subjective belief. He said he is diligent in performance of policing duties and follows available information regarding individuals in the community who are on probation, have incurred licence suspensions and the like. He did not remember how he came to suspect that Mr. Gore had been driving the black truck. He could not be sure the truck he saw entering Marcellus Road was the same black truck or that Mr. Gore was the driver. A black Dodge Ram is a generic vehicle for the locale.
[25] The issue as to whether DC Lamarche had the information to reasonably suspect, sufficient to briefly detain the vehicle in the context of a free-standing investigatory detention is arguable. Motor vehicle operation is highly regulated. The Supreme Court of Canada did not struggle with the issue in Wilson.
[26] That is; however, the wrong starting point. Impaired driving - CCC, driving while disqualified - CCC and HTA, driving while licence suspended- HTA and others are derivative offences each to the other designed to lessen carnage on highways.
[27] The defence argument suggests that a motorist disqualified from driving under the Criminal Code, has a layer of immunity from a traffic stop for the purposes of confirming sobriety, proper licencing, insurance and vehicle fitness the a motorist with a clean record does not.
[28] This was a section 216(1) traffic stop, falling centrally into the circumscribed purpose of road safety.
[29] It is the very scenario envisioned by Justice Cory in Ladouceur at paragraph 47. There was no interest in this vehicle save licencing, insurance and identification. Stops made under s. 216(1) will not result in an arbitrary detention provided the decision to stop is made in accordance with some standard or standards which promote the legislative purpose underlying the statutory authorization for the stop, that is to say, road safety concerns.
[30] DC Lamarche was not investigating drugs – Simpson or stolen property – Gonzales.
Conscripted evidence
[31] Mr. Gore submitted that the identification evidence was conscripted against him. The driver of a vehicle in Ontario does not have a privacy interest in his/her identity – Hufsky v. The Queen, 1988 CanLII 72 (SCC), [1988] 1 S.C.R.621 page 638. A motorist, as a condition of operation, is required to provide identification evidence on a traffic stop. DC Lamarche knew Mr. Gore from prior experience.
[32] I agree with the Crown submission that the evidence at issue existed regardless of any claimed violation, so there is no evidence to exclude.
Charter s. 24(2)
[33] PC Lamarche acted in accordance with his obligations to ensure persons using the road are properly licenced and insured and properly used the powers given to him under the statue.
[34] As I am unable to discern an arbitrary detention or any other Charter infringing conduct in this matter, Mr. Gore was not prejudiced by the stop.
[35] The defence application is dismissed.
The Honourable Mr. Justice Rick Leroy
Released: July 30, 2018
COURT FILE NO.: CR-17-35
DATE: 2018/07/30
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
Duane Gore
Ruling
The Honourable Mr. Justice Rick Leroy
Released: July 30, 2018