Court File and Parties
Court File No.: cr-17-738 Superior Court of Justice
Between: Her Majesty the Queen And: Andre Raumond Denis
Before: The Honourable Justice S. Coroza
On: September 11, 2018, at Brampton, Ontario
Appearances: E. Taggart, Counsel for the Crown J. Rybak, Counsel for Mr. Denis
Reasons for Judgment
Okay. Thank you very much. I am going to read out my Reasons. Please thank Mr. Weinstock for his submissions. Mr. Rybak, thank you for your submissions. If these Reasons are ordered I do reserve the right to add any citations or some minor edits.
Introduction
Andre Denis is charged with possession for the purpose of trafficking in cocaine. Mr. Denis was arrested by Constable Andrews of the Peel Regional Police on April the 1st, 2017. At the time, Mr. Denis was parked illegally in front of an apartment building fire route. Constable Andrews believed that Mr. Denis had committed the offences of failing to remain at the scene of a car accident and breaching his bail conditions a few months earlier on July the 12th, 2016.
After he was placed in Constable Andrews’ police cruiser, Constable Andrews searched a satchel that was left in the car. As a result of finding what he believed was drug paraphernalia, he went on to conduct a more intrusive search of the car and discovered cocaine hidden in a false compartment in the dashboard.
Counsel for Mr. Denis argues that the police violated his constitutional rights. Counsel makes two submissions.
First, Constable Andrews did not have reasonable grounds to believe that Mr. Denis had committed the offences in July 2016.
Second, the search of the car after the arrest was done without any legal authority.
If I accept that there was a violation of the Charter rights of Mr. Denis he seeks exclusion of the drugs from this trial.
The Crown argues that the arrest was lawful, the search of the car was lawful, and the police did not violate any rights of the accused. The Crown argues that the evidence should not be excluded if I find that the police did violate the rights of the accused.
Before turning to my analysis of the issues, I wish to make it clear that the resolution of this motion is a straightforward application of well-known principles of the law on arrest powers; search and seizure; and the right to counsel.
During his oral submissions, counsel for Mr. Denis advanced many interesting policy arguments. I will not deal with these arguments because it is not necessary. It has been repeatedly held that courts should not decide issues of law, that are not necessary to the resolution of the matter before the court. This application turns on specific findings of fact.
Indeed, I have some reservations, serious reservations about the correctness of counsel’s arguments as to when police officers should affect arrest if they possess the requisite reasonable grounds. There are no bright line rules as to the timing of an arrest. It is quite clear that the case law supports flexibility. Indeed, police officers must respond to a number of different situations on the street.
Turning to the issues, I must resolve the following questions:
1Did Constable Andrews possess reasonable grounds to believe that Mr. Denis had committed an offence?
2Did Constable Andrews have the authority to search the car?
3Did Constable Andrews violate the s. 10(b) rights of Mr. Denis by failing to re-advise him of his rights once he discovered the drugs?
If any of these Charter violations have been established, I must go on to consider whether the cocaine should be excluded pursuant to s. 24(2) of the Charter.
Issue 1: Did Constable Andrews possess reasonable grounds to believe that Mr. Denis had committed an offence?
For an arrest under s. 495(1)(a) of the Criminal Code to be lawful, number one, the arresting officer must personally believe that he or she has reasonable and probable grounds to make the arrest, and two, it must be objectively established that those reasonable and probable grounds existed.
I make the following observations.
First, whether or not reasonable and probable grounds exist depends on the facts.
Second, I have pointed out, the standard has both subjective and objective components. Not only must Constable Andrews personally believe that he possessed the requisite grounds to arrest, those grounds must be objectively established. In other words, would a reasonable person standing in his shoes believe that there was reasonable and probable grounds to make the arrest.
Third, the reasonable and probable ground standard is something less than proof beyond a reasonable doubt or a prima facie case and something more than reasonable suspicion.
Having made these observations let me review the facts in some detail.
The Failure to Remain on July 12, 2016
Constable Ryan Andrews who had been a police officer for about three years was on patrol on July 12, 2016, at about 2:00 a.m. he pulled into the driveway of a strip club in Mississauga. He testified that the parking lot of the club is lit up by artificial lighting.
His attention was drawn to a car that was pulling out of the parking lot at a slow speed. The car passed his driver’s side and he could see into the other car’s driver side window. He testified that he could see a male in the car, with dark complexion and short dark hair. He was reclining in the seat.
He testified that what distinguished this male was that his left eyelid drooped.
He described that he looked at this male for a short period of time. He felt the male had stared him down and appeared uncomfortable so he decided to follow the car onto the street.
According to Constable Andrews, the car accelerated out of the parking lot without signalling. At this point, he made the decision to investigate the driver for sobriety. He followed the car and was behind it at a distance of about six to seven car lengths when he noticed the car not stopping for lights and not signalling. He activated his emergency lights to signal to the driver that he had to stop.
He eventually followed the car into a private driveway, but as the car pulled into the driveway it struck the rear of another car causing that other car to rock.
The driver side door of the car opened and a male got out and fled around the side of the house. This encounter lasted about one minute.
Constable Andrews got out of his police car and noticed that the car was still running.
He noticed that the front passenger seat contained a six pack of Heineken beer, and one half consumed beer in the car.
There were also two cell phones in the car. Since he believed that the car had been abandoned by the driver, he took one of the cell phones to get the identity of the driver.
He examined a grey coloured cell phone and he dialed 911. He then asked the 911 dispatcher details of the number. He obtained the number and it is not disputed that he checked the number on the police databases.
The number was associated to Andre Denis. Mr. Denis was on bail for assault and had a listed address of 129 Acorn Place in Mississauga, Ontario.
Constable Andrews noticed that the bail required Mr. Denis to be on a house arrest and he had a curfew. He believed that if the male that he saw was Mr. Denis, then he was out past his curfew.
He was able to obtain a photo of Mr. Denis that he looked at on his terminal.
Once Constable Andrews left the scene, he believed that he had the grounds to arrest the driver for failing to remain at the scene of an accident, and two, if Mr. Denis was the driver, then violating the bail conditions related to the assault.
Constable Andrews decided, however, not to put out a warrant on the system for the arrest for Andre Denis. He could not be certain that the photo matched the male that had left the car. He explained that although the photograph was very similar, he was not 100 percent sure that it was the same male.
The Attendance at 129 Acorn
Some time after July the 12th, Constable Andrews decided to follow up at the address of 129 Acorn and determine if Mr. Denis was the driver of the car.
However, Mr. Denis was not there. He spoke with a woman he believed to be his mother or aunt and she advised that he was out with his surety. Other than leaving a voice mail for him at the number, following July the 12th, he did not take any other steps. He explained that he had believed he had been brushed off at 129 Acorn and that his investigation was going nowhere.
The Discovery of Mr. Denis on April 1, 2017
A few months later, on April 1, 2017, Constable Andrews discovered a car illegally parked in a fire route of an apartment building in Mississauga. The car was running. It was empty. He waited for the driver to come back so he could tell him to move the car.
He ran the license plate on his system. The car came back registered to Andre Denis. Constable Andrews waited for the driver to come back to the car.
A male exited the building, went to the car and Constable Andrews immediately recognized this as the male that had fled the car on July the 12th. He testified that what stood out was the lazy left eye.
Constable Andrews believed this was Mr. Denis and that he had grounds to arrest him for the offences of July 12th and he blocked him off using his police cruiser. Constable Andrews got out of his cruiser, approached the car, but Mr. Denis would not shut off the car and only opened his driver side window.
The Arrest
He told Mr. Denis he was under arrest. Mr. Denis would not comply and kept telling him that he was harassing him and profiling him.
When Constable Andrews looked into the interior he saw that a satchel was positioned on the lap of Mr. Denis near the groin and stomach area. Constable Andrews testified he was concerned for his safety because the satchel could hide a weapon.
Eventually, Mr. Denis left his car and was arrested by Constable Andrews for breach of recognizance and failing to remain. Constable Andrews took control of him by putting his hands behind his back and handcuffing him and he patted him down for weapons. At this time the satchel was left in the car.
Constable Andrews acknowledged that he had no officer safety concerns at this time. He placed Mr. Denis in the back of his police cruiser, and he searched him and discovered that he had $400 in cash. He testified that he was searching him to look for a means to escape and a piece of identification.
Constable Andrews then testified, once Mr. Denis was secure in the back of his police cruiser, that he went back to the car to look for the “best evidence” of identification in order to confirm that Andre Denis was connected to the phones he had seized on July the 12th and to provide evidence of the breach of recognizance on July 12th.
There is no dispute that when he was first arrested for failing to remain and breach of a recognizance he was given his rights to counsel.
This is my review of the facts. Applying these facts to the first issue, it is evident that Constable Andrews believed he had reasonable grounds to arrest Mr. Denis when he came back to the car parked in the driveway. Therefore, the subjective part of the test has been met.
Was this belief objectively reasonable? In my view it was.
First, Constable Andrews testified the male in July and Mr. Denis had a left droopy eye. He was not challenged on this point. Constable Andrews testified that as soon as he saw Mr. Denis on April 1st, 2017, he was a hundred percent sure that this was the male he saw at the strip club parking lot, the male that was identified as Mr. Denis when he was looking at the terminal in his cruiser. The common significant feature was a left loopy eye.
Second, the phone in the car that he had seized was connected to Andre Denis because of the investigation into the phone number.
Third, the license plate of the car that was parked illegally on April 1st was registered to Andre Denis. A name he was familiar with.
Counsel for Mr. Denis focused his submission on the well-known frailties of identification and other policy considerations.
If I were to focus only on the question of identification, I agree with counsel that the identification is weak. It may very well not have met the test for committal at a preliminary hearing. But, in the end, this is not the right question to ask. I must not focus on the identification in isolation.
The totality of the circumstances must be considered in the context of the dynamics of the arrest situation. Justice Doherty’s comment in Regina v. Golub from the Ontario Court of Appeal bears repeating:
“In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant”.
Using a contextual analysis it is clear that Constable Andrews had reasonable grounds to arrest Mr. Denis, and that there was an objective basis for those grounds. Constable Andrews’ decision to arrest was a good-faith choice, objectively supported by the facts available to him at the time of the arrest.
Issue 2: Did Constable Andrews have authority to search the car?
The jurisprudence holds that in order to comply with s. 8 of the Charter, a warrantless search conducted by a police officer must be authorized by law, and both the law and the manner in which the search is conducted must be reasonable.
The Crown relies on the long-standing common law power of search incident to arrest as a justification for the arrest.
However, there are limits to a power to search incident to arrest.
First, it must be for a valid criminal justice objective and not unrelated to the objectives of the proper administration of justice. Valid objectives include efforts to locate objects that may be a threat to the safety of the police, the accused or the public, that may facilitate an escape or that may be evidence against the person under arrest.
Second, the purpose of the search must not be contrary to the proper administration of justice such as to intimidate, ridicule or pressure the accused into making admissions.
Third, the search must not be conducted in an abusive manner, and fourth, the search must be truly incidental to the arrest.
Ultimately, the question is whether Constable Andrews has provided a reasonable basis, in other words, protecting the police, protecting the evidence, discovering evidence, for the search that is related to the arrest.
On this record, the only basis advanced by Constable Andrews for his initial search of the car and the satchel that was in the car was for identification.
His view was that it would provide the best evidence for the crimes that he believed Mr. Denis had committed. Constable Andrews specifically testified that he went back into the car to look for the “best evidence” of identification in order to confirm that Andre Denis was connected to the phones he had seized on July the 12th and to provide evidence of the breach of recognizance on July 12th.
I find that the search for identification was not objectively reasonable in the circumstances.
First, I see no link between a piece of identification and the connection to the phones that he seized. Indeed, prior to April the 1st, Constable Andrews had already confirmed that the phones were registered to Mr. Denis on July the 12th and by attending at the Acorn address. He had also left a voice mail message at the number because he believed it was associated to Mr. Denis.
Second, I fail to see how a piece of identification would provide the best evidence that Mr. Denis was breaching a recognizance or failing to remain on July the 12th. The best evidence on this charge is the direct observations of Constable Andrews on the evening in question and whether the person he saw was Mr. Denis. The Crown would have to prove that Mr. Denis was on a recognizance at the time. Surely the Crown could prove that without a piece of identification. The significance of a piece of identification, seized from Mr. Denis months later during his arrest, to this police investigation escapes me.
Third, there is no evidence on this record that Constable Andrews was looking for identity because Mr. Denis did not identify himself, or that he was trying to confirm the identification that had been given by Mr. Denis.
In my view, the stated purpose for the search, in other words identification, was not related to the objectives of the proper administration of justice, and did not amount to a valid objective for a search incident to arrest. It was not a search to locate objects that may be a threat to the safety of the police, the accused or the public, or that may facilitate an escape and it was not evidence that could legitimately be said to be used as evidence against the person under arrest.
Therefore, in my view, when he seized the satchel from the car and searched it for identification Constable Andrews violated the s. 8 rights of Mr. Denis. There was no lawful basis to do this search. It follows that the discovery of drug paraphernalia in plain view, once the satchel was opened, was also unlawful. It is only these further observations that led Constable Andrews to change his focus to searching for drugs and to conduct a more intrusive search of the car.
In respect of that search of drugs, I would also make a finding that Constable Andrews did not have reasonable grounds to believe that Mr. Denis had drugs in the car as a result of what he found in the satchel.
The Crown relies on cases such as R. v. Debot and R. v. Polashek from the Court of Appeal, in which the Court has observed that a search preceding an arrest may nonetheless be a search incidental to an arrest if at the time of the search the officer had valid grounds for the arrest and the arrest followed quickly after the search.
I take no issue with the principles in those cases. The issue is whether Constable Andrews had valid grounds to make an arrest for a drug offence.
According to Constable Andrews as soon as he saw what was in the satchel he believed that there were drugs in the car. I cannot accept that argument. The existence of a box of Saran Wrap on the seat, a scale, dime bags, rubber bands and cigars is highly suspicious. However, objectively, I do not believe that all of these circumstances meant that there were drugs in the car.
I acknowledge that Constable Andrews also relied on the smell and odour of marihuana. This may have been a significant factor in his formulation of grounds. He repeatedly referred to this factor. However, I would note the following.
First, Constable Andrews testified that he noticed the smell of marihuana when he was deeper into the interior of the car. I have already ruled that he had no authority to search the car. In other words, he was noting this smell when he was already situated illegally in the car. This is consistent with his testimony that after he saw what was in the satchel he changed his focus to a drug search.
Second, Constable Andrews at the time was a fairly new officer. I am not satisfied that his expertise nor experience in detecting its odours, was brought out during his testimony. For example, he certainly was not asked by anyone about whether there is a distinction between a substance recently removed from the car and one still in the car. In Polashek, the Court of Appeal has held that the sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory and thus largely incapable of objective verification.
I recognize that this is not the only factor that Constable Andrews was relying on. Nevertheless, the limited record introduced on this motion does not afford reasonable grounds individually, or collectively with other factors that there was the presence of drugs in the car.
Issue 3: Did Constable Andrews violate the s. 10(b) rights of Mr. Denis by failing to re-advise him of his rights once he discovered the drugs?
After discovering the drugs Constable Andrews advised Mr. Denis of the seizure but he did not re-read him his rights to counsel, although he did arrest him for the seizure. He explained that the threshold had not changed and that it slipped his mind. I am unclear about what he meant about the threshold.
In my view, his failure to re-read him his rights to counsel was a violation of s. 10(b).
The seizure of the drugs added a fundamentally different and discrete charge in the investigation. It involved an unrelated and more serious offence than that contemplated when Constable Andrews first read Mr. Denis his right to counsel. The whole point of the s. 10(b) caution is so that people under detention or arrest can know the extent of the jeopardy they face and whether they should talk to a lawyer. Constable Andrews was required in these circumstances to read him his rights to counsel again and afford him the opportunity to contact counsel for this offence.
I am going to speculate that what Constable Andrews testified to and meant when he talked about the “threshold” is that he did not believe the circumstances or jeopardy had changed in relation to Mr. Denis when he seized the drugs. I disagree. When the drugs were seized and he arrested Mr. Denis for them Mr. Denis was now facing more serious charges.
I find a violation of s. 10(b).
Issue 4: 24(2) And the Exclusion of Evidence
Based on my findings that his s. 8 rights and s. 10(b) rights were violated, the onus falls on Mr. Denis to establish, on a balance of probabilities, why the admission of the evidence in the proceedings would bring the administration of justice into disrepute.
In deciding whether or not to exclude evidence in this case, I must, as directed by the Supreme Court in Grant, “assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to, number one, the seriousness of the Charter-infringing state conduct, in other words admission may send the message the justice system condones serious state misconduct. Number two, the impact of the breach and the Charter-protected interests of the accused, in other words admission may send the message that individual rights count for little, and three, society’s interest in the adjudication of the case on its merits.”
The Seriousness of the Charter-infringing State Conduct
I now turn to that factor. I have found two breaches. I find that Constable Andrews did not have a lawful basis to search the satchel in the car and I have found that he violated Mr. Denis’ s. 10(b) rights when he seized the drugs and simply told him that he had seized the drugs from the car without re-reading him the s. 10(b) caution.
While the s. 10(b) violation did not lead to the seizure of the drugs, counsel argues that it must be considered as part of the same transaction here and is relevant to the s. 24(2) analysis as a factor to take into account. I agree that this breach can be taken into account in placing Constable Andrews’ conduct along a spectrum of seriousness.
The police misconduct here falls at the very serious end of the spectrum. When it came time to search the car of Mr. Denis, in my view, Constable Andrews disregarded the rights of Mr. Denis under ss. 8 and 10(b) of the Charter.
First, although the arrest was lawful, he did not have a basis to search the car incident to arrest.
Second, he did not have reasonable grounds to search the car more thoroughly after he saw the items in the satchel.
Third, when it came to re-reading the rights to counsel caution, Constable Andrews seemed unconcerned about his obligations under s. 10(b). I repeat, his answer was that the threshold had not changed and that it “slipped his mind”. These two answers are actually contradictory. Either he knew about the obligation and felt that it was not warranted because of the circumstances, or he forgot to fulfill his obligations.
The Crown relies on the fact that prior to the confrontation on April the 1st, the officer was very cautious about putting a warrant on the system for the arrest. I do not think this behaviour mitigates the seriousness of the breaches here. I acknowledge that caution is a trait that may be prudent for some police officers and depending on the circumstances can and should be encouraged.
However, if Constable Andrews had exercised caution on April 1st, he would have taken Mr. Denis to the station and obtained a warrant to search the car and the satchel. The existence of other lawful techniques can render a violation more serious and the submission that he was a cautious officer, in my view, cuts both ways.
My point in saying all of this is that I must assess the officer’s conduct on April the 1st and I can find little, if anything, that might be said to mitigate his conduct on that day.
What started out as a lawful arrest led to unreasonable searches of the satchel and car. There is merit to Mr. Rybak’s position that what occurred here was an arrest followed by an unlawful search for drugs.
This is not a close call. As I said at the outset, the principles of search and seizure and right to counsel are well established. There is no excuse for Constable Andrews not adhering to well established limits on police powers.
I cannot be seen to condone the conduct in this case and this factor weighs heavily in favour of exclusion. I am very much aware that police officers on the street have to make decisions quickly when they interact with the public, and I acknowledge that some may view that Constable Andrews was exercising good proactive policing by using his instincts to discover a serious substance that is illegal. However, the end cannot justify the means. On this record, in this case, the arrest of Mr. Denis for offences in July 2016 did not give the officer an open invitation to search the car and the satchel.
The second factor, the Impact of the Breach on the Charter-Protected Interests of the Accused
As I have made it clear, none of the Charter breaches could be characterized as technical or minor.
While the expectation of privacy that Mr. Denis had in his car was lower than if it had been his house, I still find that Constable Andrews took advantage of the search incident to arrest power to blatantly enter the car and search the satchel located in it. He had no basis for going into the car and that conduct led directly to the discovery of incriminating evidence. In my view, while it was low, Mr. Denis still maintained an expectation of privacy in the car and the contents found in it.
I also accept that Mr. Denis had a high reasonable expectation of privacy in the satchel and that this privacy interest was not trivial. The satchel is like a wallet, a briefcase or a knapsack. It contained personal information. Constable Andrews noted that it was a logical place to locate Mr. Denis’ identification and wallet. Objectively it would have held items that were private in nature. I am prepared to treat his privacy interest in the satchel as significant. The context here matters.
Constable Andrews noted that Mr. Denis was in possession of the satchel when he first confronted him. Although he expressed officer safety concerns when Mr. Denis was in his own car and refusing to comply with police commands, Constable Andrews testified that he had no safety concerns when Mr. Denis was seated in the back seat of his cruiser. As I have found, in my view, he had absolutely no basis to go into the car, pick up the satchel and search it looking for identification.
This is evidence of a callous disregard for Charter Rights. Constable Andrews’ actions involved unjustifiable use of police powers, and he crossed the line of what the law permitted and this factor favours exclusion.
The third factor is Society’s Interests
This factor favours admission. The allegations in this case are most serious and involve offences that involve a significant amount of cocaine. The evidence from the search is reliable and vital to the Crown’s case. Society has an interest in the adjudication of the case on its merits.
Balancing the Considerations
In R. v. McGuffie, the Court of Appeal held that the first two inquiries of the Grant inquiry work in tandem in the sense that both pull towards exclusion of the evidence.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence.
If the first and second inquiries make a strong case for exclusion, the court has held the third inquiry will seldom, if ever, tip the balance in favour of admissibility.
After balancing all the factors, I conclude after examination of the following factors; the seriousness of the breaches is significant, the impact on the breaches of the accused is also significant. Both factors outweigh society’s interest in adjudication on the merits and the evidence should be excluded.
Conclusion
The application is granted. Okay. That is my Ruling. I take it the Crown is not calling any further evidence.
MS. TAGGART: That’s correct, Your Honour.
THE COURT: All right. In light of my Ruling, Mr. Denis will be found not guilty of the count on the Indictment. Can I have the Indictment, please. Any orders you wish me to sign?
MS. TAGGART: I’ve just given my friend a copy of a draft Property - Property Disposition Order, Your Honour. He is just reviewing it.
THE COURT: Yes. Okay.
MR. RYBAK: Your Honour, that’s very agreeable. Yes, no difficulty.
THE COURT: All right. Could you hand it up, please? Thank you, Ms. Taggart.
MS. TAGGART: Thank you.
THE COURT: The Indictment is noted as follows; for oral reasons delivered this morning evidence is excluded pursuant to s. 24(2) of the Charter. Mr. Denis is found not guilty. The Crown calling no further evidence. Order for Disposition of Property signed today on consent. Thank you very much counsel.
MS. TAGGART: Thank you, Your Honour.
MR. RYBAK: Thank you, Your Honour.
Transcript Certificate
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
EVIDENCE ACT
I, JANICE LAW, certify that this document is a true and accurate transcript of the recording made by G. Kaur of R. v. Denis in the Ontario Court of Justice held at 7755 Hurontario Street, Brampton, Ontario taken from Recording No. 3199_406_20180911_093656__30_COROZAS, which has been certified in Form 1.
September 19, 2018 (Signature of authorized person(s))
Transcript Details: Transcript Ordered: September 12, 2018 Transcript Completed: September 18, 2018 Ordering Party Notified: September 19, 2018