Court File and Parties
COURT FILE NO.: CR-15-G54848 DATE: 2019/02/15 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen – and – Mark Sealy-Ward
Counsel: Giuseppe Cipriano for Her Majesty the Queen Eric Granger for Mark Sealy-Ward
HEARD in Ottawa: October 9, 10 and 11, 2018
Reasons for Decision – Defence Motion
O’Bonsawin J.
Background
[1] By way of background, this motion relates to Mr. Sealy-Ward’s arrest on December 2, 2015.
[2] This motion took place over a period of three days from October 9-11, 2018, and written arguments were then submitted in November. Cst. Tessier and Cst. Lachance were called as witnesses. Mr. Sealy-Ward did not testify.
[3] The following is the evidence that I accept.
[4] On December 2, 2015, Cst. Tessier and Cst. Lachance were on patrol as neighbourhood officers in the south end of Ottawa. Just before 7:30 p.m., both officers were conducting a door knock on an unrelated call on Siren Private, near Lorry Greenberg Drive, in the City of Ottawa.
[5] While conducting the door knock, both officers observed a BMW parked at the bend of Siren Private. According to police, upon seeing the officers, a black male, later identified as Mr. Sealy-Ward, exited the front driver side area of the vehicle and entered the front passenger seat. A second male, later identified as Brian Enache, was observed exiting the front passenger side and entering the driver seat of the BMW. Basically, both switched positions.
[6] The officers found this change in seating suspicious. According to Cst. Lachance, he thought this change in seating was a reaction to being observed by the police. Cst. Lachance thought Mr. Sealy-Ward might be a suspended driver and upon observing police presence decided to change seats.
[7] As the officers made their way back to their vehicle, the BMW departed and drove southbound on Siren Private.
[8] Cst. Tessier and Cst. Lachance departed eastbound onto Kimito Private and then turned onto Lorry Greenberg heading west. They later observed the BMW heading west on Lorry Greenberg Drive and they were located approximately eight to ten car lengths behind the BMW. Cst. Tessier was driving and Cst. Lachance was the passenger.
[9] Cst. Lachance started to query the license plate of the BMW. He testified that this is a common practice for him. As he conducted his queries, both he and Cst. Tessier observed the BMW to make a U-turn and then head south into the parking lot of 268 Lorry Greenberg Drive.
[10] They thought this was an illegal U-turn and decided to conduct a traffic stop at 7:36 p.m. The officers parked their vehicle approximately one car length behind the BMW. Cst. Tessier approached the driver’s side and Cst. Lachance approached the passenger side. It was a matter of seconds between 7:36 p.m. and the time they arrived at the BMW.
[11] According to Cst. Lachance the reason for the stop was an accumulation of factors: the suspicious change in seats between Mr. Sealy-Ward and Mr. Enache, the time of day, the area (known for crime) and the illegal U-turn. However, he was clear in his evidence that it was the U-turn which was the driving point behind the stop. Prior to the U-turn, the officers were unlikely to have stopped the vehicle.
[12] Both officers smelled a strong odour of marijuana coming from the vehicle. Cst. Tessier testified he smelled an odour of both burnt and vegetative marijuana. Cst. Lachance testified he observed a strong odour of vegetative marijuana. Both officers testified that they had experience with the odour of marijuana as police officers and have come across it numerous times.
[13] Cst. Tessier asked the driver for his documents. Cst. Lachance testified that his intention upon approaching the passenger was to warn him about driving while suspended. He indicated that he often stopped vehicles for possible Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) infractions and issued warnings.
[14] Cst. Lachance asked Mr. Sealy-Ward to lower the window. As he did so, Cst. Lachance noticed that the odour of marijuana intensified. Cst. Lachance also noticed a blue backpack between Mr. Sealy-Ward’s legs in the foot well of the car. Cst. Lachance asked Mr. Sealy-Ward if there was any marijuana in the vehicle. Mr. Sealy-Ward denied that there was marijuana and asked the officer the reason for the stop. Cst. Lachance again asked if there was marijuana in the vehicle to which he did not receive a response.
[15] Given the overwhelming odour, Cst. Lachance believed that marijuana was present in the vehicle. Consequently, he decided to arrest the occupants for possession of marijuana. At 7:39 p.m., Cst. Lachance radioed dispatch from the radio on his left shoulder to advise that they had arrested three men for possession of drugs. Cst. Lachance testified: “I tell them all arrested for Schedule II or I said marijuana”. All occupants were ordered out of the vehicle. They were immediately told the reason for the arrest and placed under arrest.
[16] When Mr. Sealy-Ward got out of the passenger door of the BMW, Cst. Lachance took custody of him. As was his practice and as he was trained, Cst. Lachance asked Mr. Sealy-Ward if he had any drugs/needles or weapons on him prior to the search of his person for officer safety reasons. Cst. Lachance noticed a clear sandwich type baggie partially sticking out of Mr. Sealy-Ward’s left jacket pocket. Cst. Lachance asked Mr. Sealy-Ward if the baggie contained marijuana and the latter went to reach in. Since Cst. Lachance had not yet searched Mr. Sealy-Ward, the former grabbed the latter’s hand for safety reasons and pulled the baggy out of the pocket. It contained little white rocks and powder that Cst. Lachance suspected to be cocaine or crack cocaine. As a result, Cst. Lachance arrested him for possession of cocaine. Mr. Sealy-Ward was then handcuffed and searched incident after arrest.
[17] Mr. Sealy-Ward and the other two occupants of the BMW were then seated on the curb while the police officers waited for back-up to arrive. Ordinarily, the detained individuals would be handcuffed, searched and placed in the rear of a police vehicle where they would be cautioned and read their rights to counsel. However, in this case, there were only two officers, two sets of handcuffs and one police vehicle. According to the police officers, there was no safe place for Mr. Sealy-Ward or others to wait until back-up arrived.
[18] While awaiting back-up, Cst. Lachance returned to the vehicle and searched the blue backpack that was located between Mr. Sealy-Ward's legs. The following items were located within the backpack:
- 2 clear plastic bags of marijuana (approximately 1 lb each)
- a black digital scale with marijuana residue on it
- multiple individual dime bags (some red, some clear and some with a black design on clear plastic), typically used to package and sell marijuana by the gram or less.
- a box of plastic ziplock bags
- elastics
- a plastic strawberry yogurt cup with marijuana residue
- a green and flashy colored journal book with a debt list on the first page
- 3 gold teeth in a plastic bag
- 3 ziplock bags with small amounts of marijuana in it
[19] As a result, Cst. Lachance advised the three males they were under arrest for possession for the purpose of trafficking.
[20] The smell of marijuana still persisted in the BMW. As a result, Cst. Lachance searched the remainder of the car including the trunk. Upon searching the trunk, Cst. Lachance located a black cloth grocery bag and a blue duffle bag.
[21] The following items were inside of the cloth grocery bag:
- a clear ziplock bag with 8 red rifle shells along with 1 rifle bullet;
- a sawed off break action single shotgun with some army green camouflage tape on the handle and the barrel; the serial number had been scratched off;
- a black balaclava; and
- a white plastic grocery bag.
[22] The following items were located within the blue duffle bag:
- 2 sealed ziplock bags containing marijuana (approximately 1 lb each);
- a black hoodie;
- 2 pairs of red shorts;
- white/black socks;
- a grey muscle shirt;
- checkered boxers;
- 3 black homemade slings; and
- a black bag that contained a small dime bag that appeared to be crack cocaine along with 2 small brown balls of what appeared to be heroine.
[23] A machete was also located in the trunk.
[24] As a result, Cst. Lachance advised all three men that they were also under arrest for possession of a firearm and possession of a weapon for a dangerous purpose.
[25] Back-up arrived shortly before 8:16 p.m. With other officers on scene, Cst. Lachance read the rights to counsel and cautions to Mr. Pescar at 8:16 p.m. and Cst. Tessier read the rights to counsel and caution to Mr. Enache. Cst. St-Denis took custody of Mr. Sealy-Ward. The police officers were not able to confirm if Mr. Sealy-Ward was read the cautions or if his right to counsel was provided. It must be noted that Mr. Sealy-Ward does not argue that he was deprived of the opportunity to speak with counsel. Instead, he submits that he was not read his rights to counsel.
Issues
[26] There are five issues raised by the Defence in this Canadian Charter of Rights and Freedoms Application:
- Was Mr. Sealy-Ward arbitrarily detained contrary to ss. 7 and 9 of the Charter because the police lacked the legal authority to stop the vehicle?
- Was Mr. Sealy-Ward advised of the reason for being detained as per s. 10(a) of the Charter?
- Was Mr. Sealy-Ward arbitrarily detained contrary to ss. 7 and 9 of the Charter because the police lacked the legal authority to remove him from the vehicle and arrest him as he was a passenger in the vehicle?
- Was Mr. Sealy-Ward read his rights to counsel as per s. 10(b) of the Charter at the time of his arrest?
- Was the search of the vehicle unlawful since there was not a proper search incident to arrest, or alternatively, did the search of the trunk exceed the scope of a lawful search incident to arrest contrary to s. 8 of the Charter?
- If this Court determines that the police officers breached any of Mr. Sealey-Ward’s rights, should the evidence gathered be excluded as per s. 24(2) of the Charter?
Position of the Parties
[27] The Defence submits that while this is a Defence Charter application, this is a Crown onus Charter application. Since the evidence that is sought to be excluded was obtained without a warrant, the search and subsequent seizure of all evidence by Cst. Lachance is presumed to be unreasonable and unlawful unless the Crown can satisfy the court that the search and seizure was lawful and reasonable. The Defence argues the Crown cannot meet its onus.
[28] The Defence further submits the real reason for stopping Mr. Sealy-Ward was to further investigate him because the police officers thought his action of switching seats with the driver was suspicious. As a result, the Defence claims that Mr. Sealy-Ward’s rights to be free from arbitrary arrest and detention, to be free from unreasonable search and seizure, and his right to counsel have been violated. Therefore, the Defence seeks to exclude all of the evidence seized by the police officers.
[29] The Crown argues that the police are entitled to have more than one purpose in mind when conducting a traffic stop. The police were entitled to stop the BMW for a valid HTA infraction. Having properly stopped the vehicle, the police were permitted to make observations and arrest the occupants of the BMW for any criminal offence for which they had grounds. Having arrested the occupants for possession of marijuana, the search of the vehicle was incident to the lawful arrest. Consequently, the Crown submits that the Defence's application should be dismissed. In the alternative, the evidence ought to be admitted pursuant to s. 24(2) of the Charter.
Analysis
1) Was Mr. Sealy-Ward arbitrarily detained contrary to ss. 7 and 9 of the Charter because the police lacked the legal authority to stop the vehicle?
[30] In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the Supreme Court of Canada stated the following regarding search powers incident to investigative detention (at para. 36):
36 Any search incidental to the limited police power of investigative detention described above 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] 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. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, at para. 32.
[31] The existence of a concurrent lawful purpose to stop a vehicle does not in itself make a stop that is otherwise authorized by law unlawful. In R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at paras. 36-43, the Supreme Court of Canada stated as follows:
36 Wilkinson J.A., for the majority in the court below, found the dual purpose debate unhelpful and succinctly expressed the view that
the lawful aim cannot be used as a pretext, ruse, or subterfuge to perpetuate the unlawful aim. That, ultimately, is the focal point of the inquiry. It is not a question of degree, or determining which purpose is predominate or subordinate. Rather, it is a question whether a lawful purpose is being exploited to achieve an impermissible aim. [para. 85]
37 It is to be expected that RCMP officers patrolling the Trans-Canada Highway are interested in any number of potential infractions including criminal offences as well as provincial matters. It could hardly be otherwise. However, as pointed out by Martin J.A., “[t]he lawful search was not converted into an unlawful or an unreasonable search because the officers, in addition, had the expectation that the search might also uncover drugs”: R. v. Annett (1984), 17 C.C.C. (3d) 332 (Ont. C.A.), at p. 335, leave to appeal refused, [1985] 1 S.C.R. v. (note) (S.C.C.).
38 In Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (C.A.), the police used the Ontario equivalent H&TA powers to stop and question bikers attending a gathering of the Paradise Riders Motorcycle Club, suspected to be a criminal organization. The police took advantage of the stop to gather information about the individuals and the gathering. Doherty J.A., for the court, while upholding as valid the police conduct in that particular case, stated:
While I can find no sound reason for invalidating an otherwise proper stop because the police used the opportunity afforded by that stop to further some other legitimate interest, I do see strong policy reasons for invalidating a stop where the police have an additional improper purpose. Highway safety concerns are important, but they should not provide the police with a means to pursue objects which are themselves an abuse of the police power or are otherwise improper. [p. 238]
39 Police power, whether conferred by statute or at common law, is abused when it is exercised in a manner that violates the Charter rights of an accused. This is a better framework of analysis, in my opinion, than the "predominant purpose" test applied here by the trial judge. If the Charter is violated, it makes little difference, I think, that the police had in mind multiple purposes. A valid regulatory purpose, whether predominant or not, would not sanitize or excuse a Charter violation.
41 I agree with Wilkinson J.A. that the question is not “determining which purpose is predominate or subordinate” (para. 85). As long as there is a continuing regulatory purpose on which to ground the exercise of the regulatory power, the issue is whether the officer’s search of the duffle bag infringed the reasonable expectations of privacy of the appellants. I do not think that it did, having regard to the totality of the circumstances as they had progressed to the time of that search.
As was the case in Annett, “the expectation that the search might also uncover drugs” (p. 335) did not convert a Charter-compliant regulatory search into a Charter violation: R. v. Sewell, 2003 SKCA 52, 175 C.C.C. (3d) 242 (Sask. C.A.).
[32] Dual purpose stops have been held to be valid in a variety of circumstances. The Crown refers me to the decisions of R. v. Bui (2005), 132 C.R.R. (2d) 219 (Ont. S.C.), at paras. 15-29, R. v. Lucas, at para. 22 and R. v. Omar, 2014 ONSC 810, 302 C.R.R. (2d) 252, at paras. 20-25.
[33] In R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 59, the Court of Appeal found that:
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 Regional Police Force, at paras. 31 and 33; R. v. Storrey, [1990] 1 S.C.R. 241 (S.C.C.), at pp. 254-55.
[34] The relevant HTA provisions in this matter are ss. 142(1) and 143. They state as follows:
142 (1) The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.
143 No driver or operator of a vehicle upon a highway shall turn the vehicle so as to proceed in the opposite direction when,
(a) upon a curve where traffic approaching the vehicle from either direction cannot be seen by the driver of the vehicle within a distance of 150 metres.
[35] Sub-section 142(1) creates two separate offences: first, the failure to see if the turn can be made safely, and second, the failure to signal to the operator of any other vehicle that may be affected by the movement: see R. v. Tajdeen, 2014 ONCJ 789, at para. 4.
[36] The prosecution must only prove one of the two elements for a conviction to register. It is important to note that a police officer only requires reasonable grounds to believe that the U-turn was unlawful; an officer need not have a prima facie case.
[37] The Defence argues that the police officers’ stop of the BMW that lead to the search was an unlawful “pretext stop”. The purported HTA violation was not the true subjective basis for the stop; rather the true subjective reason for the stop was to investigate the officers’ generalized suspicions of Mr. Sealy-Ward. This was not a permissible and lawful purpose for the stop and it resulted in an arbitrary detention of Mr. Sealy-Ward and an infringement of his rights as protected under ss. 7 and 9 of the Charter. The ensuing search was a direct result of this unlawful detention; it was therefore unlawful and infringed s. 8 of the Charter. The Defence relies on Mann at paras. 34-35, R. v. Gayle, 2015 ONCJ 575, 24 C.R. (7th) 124, at paras. 13-16 and 21 and Gonzales at paras. 49-79.
[38] In the alternative, the Defence submits that there was no lawful basis for this traffic stop under the HTA either subjectively or objectively.
[39] In this case, the police officers stopped the BMW because they observed it making an illegal U-turn. The police officers gave two reasons for the stop. Cst. Tessier testified that the BMW failed to properly pull to the right and signal for a left turn. Cst. Lachance testified that in addition to failing to signal, the BMW executed the U-turn near a curve in the road where the vehicle does not have a clear line of sight in either direction of a distance of 150 meters.
[40] The Defence argues that there were a number of material inconsistencies between the evidence of Cst. Tessier and Cst. Lachance. It is correct that they were not completely consistent in their reasons for the infraction. However, I have determined that their evidence was credible. I am not being asked to determine the merits of the infraction or to determine the guilt or innocence of the driver, Mr. Enache.
[41] The evidence presented supports that the BMW turned left. The stop was initiated in the parking lot of 268 Lorry Greenberg Drive. The BMW necessarily tuned left to get there. Furthermore, there is no evidence to contradict that the vehicle did not signal and that the U-turn was conducted upon a curve in the road in which the BMW did not have a clear line of sight in either direction of a distance of 150 meters. Neither Mr. Sealy-Ward nor Mr. Enache testified.
[42] The only evidence I have been provided is that the BMW passed 268 Lorry Greenberg Drive and executed a turn in order to enter the parking lot at that location. Both police officers described the manoeuvre as a U-turn given the location of the BMW when executing the turn.
[43] The Defence argues that the stop was unlawful because no other vehicle was affected. The Crown argues the evidence of Cst. Tessier was that he had to slow down as a precaution but his vehicle was not affected. In this sense, his vehicle may have been affected. The Crown pursues further that in any event, the BMW made the U-turn within 150 meters from the curve in the road. Both officers’ evidence taken together amount to reasonable and probable grounds to conduct the traffic stop. Simply put, police officers are permitted to be wrong without making an arrest unlawful: as long as the police officers are acting in the lawful execution of their duty, it does not matter that an accused person may ultimately be acquitted. I agree with the Crown’s position.
[44] It is clear on the evidence that Cst. Tessier was unsure which section of the HTA applied regarding the traffic stop. On the other hand, Cst. Lachance knew the law at trial and testified that he did not know if any vehicle was affected by the vehicle as it performed its U-turn. He also testified that the vehicle did not have 150 metres of visibility ahead of it which is an offence under the HTA.
[45] Mr. Sealy-Ward was a passenger in the BMW. Cst. Lachance testified that when he approached the passenger side, he was going to warn Mr. Sealy-Ward about the consequences of driving while suspended, as a result of him seeing Mr. Sealy-Ward initially switching seats with the passenger. Cst. Lachance was entitled to speak with Mr. Sealy-Ward about this issue which was directly related to the HTA. However, the focus for Cst. Lachance changed when he smelled a strong odour of marijuana. He then asked Mr. Sealy-Ward if there was any marijuana in the car, which he denied, despite the overwhelming odour. Cst. Lachance did not believe Mr. Sealy-Ward’s response which led him to repeat the question; Mr. Sealy-Ward did not respond. Consequently, he immediately arrested Mr. Sealy-Ward and advised him of the reason for his arrest. Cst. Lachance’s testimony in this regard was not contradicted nor was it shaken in cross-examination.
[46] The Defence raised the issue of inconsistencies between Cst. Tessier and Cst. Lachance’s testimonies regarding the smell of marijuana. Cst. Tessier testified that he smelled an odour of both burnt and fresh marijuana and Cst. Lachance testified that he smelled fresh vegetative marijuana.
[47] The Crown argues that the issue about whether the odour of marijuana is burnt or fresh is immaterial. What is relevant is the circumstances in which the observation is made and whether that is sufficient evidence of present possession. The Crown relies on the following passage from Gonzales at para. 97 to support its position:
No bright line rule prohibits the presence of the smell of marijuana as the source of reasonable grounds for an arrest. However, what is dispositive are the circumstances under which the olfactory observation was made. Sometimes, police officers can convince a trial judge that their training and experience is sufficient to yield a reliable opinion of present possession. As with any item of evidence, it is for the trial judge to determine the value and effect of the evidence: R. v. Polashek (1999), 134 C.C.C. (3d) 187 (Ont. C.A.), at para. 14; R. v. Morris, 2013 ONCA 223, 106 W.C.B. (2d) 279, at para. 8; R. v. Hoang, 2013 ONCA 430, 107 W.C.B. (2d) 661, at para. 5.
[48] I agree with the Crown’s arguments. These inconsistencies do not lead me to question the police officers’ credibility. What is relevant in this matter is that there was an odour of marijuana which led to Mr. Sealy-Ward’s arrest.
[49] While it may be true that the police officers thought that there was something suspicious about the BMW, the evidence supports that they had a valid reason to stop the BMW for a possible HTA violation. In line with the principles noted in Nolet and Gonzales, I find that the stop of the vehicle was lawful and that Mr. Sealy-Ward was not arbitrarily detained.
2) Was Mr. Sealy-Ward advised of the reason for being detained as per s. 10(a) of the Charter?
[50] In accordance with the Charter, an individual has a right not to be arbitrarily detained and to also be informed immediately of the reason for his/her arrest or detention. The case law is clear: an individual must be advised immediately or promptly and without delay of the reason for the arrest or detention. The reasons for the arrest should be in plain and simple language, they need not be technical or precise. Simply put, the person should know why he/she is being detained (R. v. Nguyen, 2008 ONCA 49, 55 C.R. (6th) 82, at para. 16). The reason for this is to ensure the detainee is aware of the jeopardy he/she faces and if he/she is detained, he/she can exercise any further rights such as the right to remain silent and the right to counsel.
[51] The evidence is clear that Cst. Lachance advised Mr. Sealy-Ward that he was being detained for possession of drugs. Consequently, I find that he was provided with the reason for his detention.
3) Was Mr. Sealy-Ward arbitrarily detained contrary to ss. 7 and 9 of the Charter because the police lacked the legal authority to remove him from the vehicle and arrest him as he was a passenger in the vehicle?
[52] With regards to this issue, the Defence argues in a limited fashion that Mr. Sealy-Ward was not committing an offence by simply being the passenger in a motor vehicle. I have already addressed this matter in Issue 1.
4) Was Mr. Sealy-Ward read his rights to counsel as per s. 10(b) of the Charter at the time of his arrest?
[53] The Defence argues that Mr. Sealy-Ward was never advised of his right to counsel prior to being transported to the police station. The Crown concedes that the police officers did not immediately advise Mr. Sealy-Ward of his rights to counsel. However, the Crown argues that a delay in informing an individual about the right to counsel is permitted on the basis of concerns for officer or public safety (R. v. A.H., 2018 ONCA 677, 366 C.C.C. (3d) 69, at para. 33).
[54] Cst. Lachance testified that it was his normal practice to tell the person he/she is under arrest and that he/she will speak to a lawyer when he/she arrives to “cells” and he does not try to have a conversation with him/her. The Defence further submits that even if Cst. Lachance had told Mr. Sealy-Ward he would get the opportunity to speak to counsel at the police station, he was unsure he had done so in this case and this clearly falls well short of the police obligation to inform a detainee of his right to counsel. The Defence relies on R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 41-43 and R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 27-28.
[55] The Defence also raises the issue of a further breach: the duty to hold off seeking to obtain incriminatory information from a detainee prior to that detainee exercising his right to counsel. In this case, the Defence argues the duty to hold off was clearly breached by Cst. Lachance. He asked Mr. Sealy-Ward questions about the presence of marijuana in the vehicle and about the presence of drugs in a bag sticking out of his pocket. The Defence submits that Cst. Lachance was seeking admissions from Mr. Sealy-Ward of both the presence of controlled substances on his person or in the vehicle as well as his knowledge of their presence, which would provide further evidence of his possession of anything found.
[56] The Crown replies in this case that Mr. Sealy-Ward was not deprived of speaking to a lawyer. He simply was not read his rights to counsel. However, during the time in which Mr. Sealy-Ward ought to have been read his rights, the police officers did not question him and no statements were made.
[57] Based on the evidence and the concession of the Crown, Mr. Sealy-Ward was not read his rights. Cst. Lachance seems to indicate in his testimony that this was due to police officer security: there were three individuals under arrest, two police officers with only two sets of handcuffs. Due to this situation, the three men were asked to sit on the curb until back-up arrived while Cst. Lachance searched the vehicle and Cst. Tessier oversaw the detainees.
[58] In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 37-40, the Supreme Court described the rationale for the rights to counsel as follows:
37 Once an individual is detained, s. 10(b) of the Charter is engaged and guarantees an individual the right to retain and instruct counsel without delay, and to be informed of that right. The issue raised on this appeal asks whether the words “without delay” require the police to execute their duties to facilitate a detainee’s right to counsel immediately upon detention, or whether this obligation can be fulfilled at a later point in time.
38 Once engaged, s. 10(b) imposes both informational and implementational duties on the police. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation imposed on the police under s. 10(b), requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. This obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so.
39 The content of the police duties under s. 10(b) is not at issue in this appeal. Instead, the question is whether the right to retain and instruct counsel “without delay” means that these duties must be executed immediately at the outset of a detention, or whether these duties manifest at some later point subsequent to the start of a detention.
40 As with “detention”, any interpretation of the phrase “without delay” must be consistent with a purposive understanding of the Charter provision in which it occurs. As this Court noted in R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-42, and in R. v. Bartle, [1994] 3 S.C.R. 173, the purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.
[59] I find that Mr. Sealy-Ward’s s. 10(b) right to counsel was breached. If police officer security was such an issue, the officers could have waited until back-up arrived and both supervised the three men sitting on the curb and read Mr. Sealy-Ward his rights to counsel instead of Cst. Lachance leaving Cst. Tessier alone with the men to go search the vehicle.
5) Was the search of the vehicle unlawful since there was not a proper search incident to arrest, or alternatively, did the search of the trunk exceed the scope of a lawful search incident to arrest contrary to s. 8 of the Charter?
[60] The Defence argues that the legality of the search of Mr. Sealy-Ward and of the BMW is inexorably tied to the legality of the arrest itself. If the arrest was unlawful, there is no legal justification for the search and it too is unlawful. If the arrest itself was lawful, a search incident to that arrest would also be lawful. As the Applicant submits that the arrest for possession of marijuana was unlawful, he submits that the subsequent searches were also unlawful.
[61] The Defence submits that in the event the Court finds the arrest to be lawful, the search of the trunk exceeded the permissible limits of search incident to arrest. In order to search the trunk, Cst. Lachance needed a reasonable basis for concluding he would find evidence of an offence in the trunk. The Defence argues that Cst. Lachance’s claim that the fact the smell of marijuana lingered in the vehicle after the marijuana was removed from the passenger compartment caused him to believe there was further marijuana in the trunk is not a reasonable or rational conclusion. As Cst. Lachance acknowledged, when marijuana is removed from a location, the smell does not immediately disappear. Furthermore, to the extent a smell remained in the passenger compartment of the vehicle, it is irrational to attribute that smell to a belief that there is marijuana in a separate, closed compartment of that vehicle, namely the trunk. Therefore, the decision to search the trunk incident to arrest on that basis is not reasonable, and the search of the trunk independently infringed s. 8 of the Charter. The Defence relies on R. v. Caslake, [1998] 1 S.C.R. 51, at para. 20 to support its position. Lastly, the Defence submits that the search of the BMW was not incidental to arrest and therefore was performed without lawful authority.
[62] I have previously found that Mr. Sealy-Ward’s arrest was lawful. Therefore, as conceded by the Defence, the search incident to that arrest was lawful. The issue remains with the search of the BMW’s trunk.
[63] In Caslake, the Supreme Court explained the purposes of search incident to arrest as follows:
19 As L’Heureux-Dubé J. stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee's trial. The restriction that the search must be “truly incidental” to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the officer’s belief that this purpose will be served by the search must be a reasonable one.
20 To be clear, this is not a standard of reasonable and probable grounds, the normal threshold that must be surpassed before a search can be conducted. Here, the only requirement is that there be some reasonable basis for doing what the police officer did. To give an example, a reasonable and probable grounds standard would require a police officer to demonstrate a reasonable belief that an arrested person was armed with a particular weapon before searching the person. By contrast, under the standard that applies here, the police would be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether the person might be armed. Obviously, there is a significant difference in the two standards. The police have considerable leeway in the circumstances of an arrest which they do not have in other situations. At the same time, in keeping with the criteria in Cloutier, there must be a “valid objective” served by the search. An objective cannot be valid if it is not reasonable to pursue it in the circumstances of the arrest. [Emphasis added.]
[64] In this matter, Cst. Lachance testified that incident to arrest, he searched all quadrants of the front and rear of the BMW. During this time, all of the car doors were open however, the “pretty strong smell of marijuana coming from that car didn’t seem to dissipate much” which led him to believe that there was probably more marijuana in the trunk. He then searched the trunk and located the items listed in paragraphs 21-23 of this Decision.
[65] I find that Cst. Lachance had a reasonable basis to search the trunk of the BMW. He had searched the interior of the BMW and even with the doors open during the search, the odour of marijuana remained. This led him to believe that there may be more marijuana in the trunk of the vehicle. This was a reasonable assumption on his part.
6) If this Court determines that the police officers breached any of Mr. Sealey-Ward’s rights, should the evidence gathered be excluded as per s. 24(2) of the Charter?
[66] Since I have determined that Mr. Sealy-Ward’s rights to counsel were breached, I must perform the s. 24(2) Charter analysis. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada determined the three factors that a Court must review in order to determine if the evidence should be admitted. The court stated as follows:
71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
[67] The lines of inquiry are not in themselves individual tests for the admission or exclusion of evidence. The seriousness of the breach, its impact and society’s interest in adjudication on the merits are each important considerations in determining whether the admission of evidence could bring the administration of justice into disrepute.
Grant analysis: i) the seriousness of the Charter infringing conduct
[68] The Defence argues that the breaches were multiple and serious in nature. It submits that the actions of the police officers showed a disregard for Mr. Sealy-Ward’s rights in many respects ranging from the initial pretext stop, to his continued detention after the initial arrest and the subsequent search of the vehicle. It must be noted for this first step of the exclusion analysis, the Defence focused its arguments on the other Charter breaches and not on the breach of the right to counsel. I have found that there were not multiple breaches of Mr. Sealy-Ward’s Charter rights.
[69] The Crown conceded that the police officers ought to have read Mr. Sealy-Ward his rights to counsel. However, as noted above, the police officers did not deprive him from speaking with counsel. In addition, the police officers did not question Mr. Sealy-Ward nor did they take any statements from him. As such, the Crown argues the s. 10(b) Charter breach is more technical than serious. I agree with the Crown that since the police officers did not question Mr. Sealy-Ward nor take any statements from him, albeit this remains a Charter breach, it is not a serious one.
Grant analysis: ii) the impact of the Charter-protected interests of Mr. Sealy-Ward
[70] With respect to the second factor, the Defence argues that the second branch of the Grant test also favours exclusion. The infringement of Mr. Sealy-Ward’s Charter-protected interests was significant. The Defence further states that had his Charter rights been fully complied with, Mr. Sealy-Ward ought to have been free to carry on his way and go about his business. Instead, the vehicle Mr. Sealy-Ward was in was stopped, he was detained, arrested, handcuffed, searched, not advised of his most fundamental constitutional right in the circumstances and ultimately transported to cellblock for a further detention. The intrusion on his Charter-protected interests was significant and favours exclusion.
[71] On the other hand, the Crown submits that the impact is not serious. The fact that Mr. Sealy-Ward was arrested, detained and prosecuted ignores the fact that apart from any traffic stop issues, police had the grounds to arrest him based on the smell of marijuana. None of the searches in this case offended Mr. Sealy-Ward’s dignity or intruded upon his bodily integrity. The bulk of the evidence sought to be excluded was obtained in the searches incident to a lawful arrest. There were no covert entries, or evidence that the police acted in bad faith.
[72] I agree with the Crown’s arguments that the impact on Mr. Sealy-Ward’s Charter-protected interests was not serious. The search was incident to a lawful arrest, the searches did not offend his dignity or intrude on his bodily integrity and there is no evidence that the police officers acted in bad faith.
Grant analysis: iii) society’s interest in adjudication on the merits
[73] The Defence concedes that the real evidence found in the BMW is reliable and favours inclusion, it argues however that the seriousness of any offences charged is a neutral factor in the analysis. The Defence focused its arguments on the first two branches of the Grant analysis to favour exclusion particularly in the face of multiple serious breaches. However, I have found that there have not been multiple serious breaches in this matter.
[74] The reliability of the evidence sought to be excluded is an important factor in this respect. “[E]xclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute” (Grant at para. 81). In addition, “the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution” (Grant at para. 83).
[75] As conceded by the Defence, the evidence in this matter is reliable. I find that the evidence in question is relevant, reliable and important to the Crown’s case. The viability of the prosecution will be undermined by the exclusion of this evidence.
Grant analysis: iv) balancing
[76] In Grant, the Supreme Court determined that after pursuing the three steps, the Court must determine whether, on balance, the admission of the evidence would bring the administration of justice into disrepute.
[77] In this matter, there is no evidence to support a finding that the police officers acted in bad faith or in a manner that sought to mislead or misrepresent. The breach of the right to counsel was not serious or highly intrusive. I agree with the Crown that at its core, this case is about the discovery of drugs, a sawed off shotgun and ammunition. This is reliable evidence and vital to the viability of the prosecution. There is a clear societal interest in the charges against Mr. Sealy-Ward being determined on their merits. Given the nature of the charges, it would bring the administration of justice into disrepute to exclude the evidence.
Conclusion
[78] Based on my reasons above, I dismiss the Defence’s motion to exclude the evidence.
Justice M. O’Bonsawin