COURT FILE NO.: CR-18-863 DATE: 20190322

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN N. Cooper, for the Crown

- and -

RYAN REEVES C. Levien, for the Defence

HEARD: March 18, 19, 20, 2019, at Brampton

RULING ON CHARTER APPLICATION

André J.

[1] A member of the Peel Regional Police Force charged Mr. Reeves on May 12, 2017, with possession of cocaine for the purpose of trafficking after finding 34 grams of cocaine in the centre console of Mr. Reeves’ black BMW. Mr. Reeves brings an application for a finding that the officer violated his ss. 8, 9 and 10(b) rights, and that pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, the drugs allegedly found in his car should be excluded from his trial and any statements attributed to him should be held to be inadmissible.

BACKGROUND FACTS

Summary of the Crown’s Evidence

Cst. Golia

[2] Cst. Julian Golia testified that at approximately 3:00 a.m., he was on a “proactive patrol” in Malton, an area which he described in his notes as a “high crime” area. He approached an intersection and saw a 2006 black BMW parked at the side of a road with the engine running and the headlights on. He pulled behind the vehicle and saw two males inside. He did a query on the vehicle and advised dispatch of the “traffic stop”.

[3] Cst. Golia approached the vehicle from the driver’s side. While standing next to the driver, he saw a Hennessey Whiskey bottle in the centre console between the front seats. He could not recall if the lights within the vehicle were on or off. He conceded in cross-examination that the driver door window may have been up and that it was possible that there were no lights on in the vehicle. However, he recalled that there were street lights in the area. He could not recall whether the glass window was down or up, if the car’s windows were tinted or whether he had used a flashlight to illuminate the interior of the vehicle. However, he recalled seeing the bottle of alcohol. The bottle was closed, but the seal had been broken. He saw the passenger place the bottle somewhere on the floor in front of the passenger seat.

[4] The officer told Mr. Reeves of the Liquor Licence Act, O.Reg. 461/11, infraction of having an “open” bottle of alcohol in a public place and asked both occupants to vacate the vehicle. He advised them that he had the authority under the Liquor Licence Act to search them and the vehicle. The two males said they had been drinking and were about to go to the residence of Mr. Amoah, the passenger of the vehicle.

[5] Cst. Golia had Mr. Reeves and Mr. Amoah stand by the curb and patted them down. He then called for assistance. Cst. O’Connor arrived in his cruiser 5 to 10 minutes later. Cst. Golia then searched Mr. Reeves’ vehicle and retrieved the whiskey from within it. He also found baggies of cocaine in a closed compartment in the centre console of the vehicle.

[6] When Cst. Golia emerged from the vehicle with the baggies in hand, Mr. Reeves spontaneously stated that the cocaine belonged to him, not Mr. Amoah.

[7] Cst. Golia arrested Mr. Reeves for simple possession and placed him in the back of his cruiser after handcuffing him to the rear. He then read Mr. Reeves his requisite rights to counsel, caution and secondary caution, all of which Mr. Reeves stated he understood. The officer then decided to charge Mr. Reeves with possession for the purpose after ascertaining how much cocaine was in the baggies. He re-read Mr. Reeves his rights to counsel but did not re-read a second secondary caution to him because he had already done so.

[8] Mr. Reeves again insisted that the drugs belonged to him and that Mr. Amoah should not be charged. Cst. Golia then decided to release Mr. Amoah unconditionally. The officer gave Mr. Reeves a ticket for “having liquor in [an] open container other than a licenced premise, residence or private place”. The officer testified that he later realized that he had charged Mr. Reeves under the wrong section of the Liquor Licence Act, and that the appropriate offence should have been having care and control of a vehicle with an open bottle of alcohol. Cst. Golia further testified that he did not smell alcohol on Mr. Reeves’ breath. The officer denied that the search for alcohol was merely a pretext to search Mr. Reeves and his vehicle for drugs. He denied that he investigated the two men after seeing them outside their vehicle.

Cst. O’Connor

[9] Cst. O’Connor testified that Mr. Reeves and Mr. Amoah were standing outside the vehicle when he arrived. He did not smell alcohol on the breath of either man. He also testified that he decided not to charge Mr. Amoah with a drug charge after Mr. Amoah had given him a written statement indicating that he had no knowledge of the cocaine in the vehicle. The officer could not recall Mr. Reeves saying anything after Cst. Golia found drugs in Mr. Reeves’ car.

Summary of Mr. Reeves’ Evidence

[10] Mr. Reeves testified that he and Mr. Amoah were walking to Mr. Amoah’s residence when Cst. Golia approached them. They had gone to the BMW earlier in search of a lighter. Mr. Amoah had then retrieved the whiskey from the car and had it in his hand when Cst. Golia approached them. Mr. Reeves’ denied that he told the officer that the cocaine belonged to him. He also denied any knowledge of its presence in his vehicle.

GOVERNING PRINCIPLES

[11] Section 8 of the Charter guarantees the right to be secure from unreasonable search and seizure.

[12] In Collins v. The Queen, [1987] 1 S.C.R. 265, at p. 278, the Supreme Court of Canada stated that “a search will be reasonable if it is authorized by law, and if the manner in which it was carried out is reasonable.”

[13] In R. v. Belnavis, [1997] 3 S.C.R. 341, at paras. 38-39, and R. v. Caslake, [1998] 1 S.C.R. 51, at para. 34, the court held that while there is a reduced expectation of privacy in a motor vehicle, it is not a Charter-free zone. See also R. v. Bernshaw, [1995] 1 S.C.R. 254; and R. v. Wise, [1992] 1 S.C.R. 527.

[14] A warrantless search or seizure is presumptively unreasonable and the Crown bears the burden of rebutting this presumption: see R. v. Monney, [1999] 1 S.C.R. 652, at para. 29.

[15] Section 9 of the Charter guarantees the right of everyone not to be arbitrarily detained.

[16] A person is detained when a state agent restricts his or her movement: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44 and; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 3.

[17] An accused bears the burden of proving, on a balance of probabilities, that his s. 9 Charter rights were violated: R. v. Daley, 2015 ONSC 7367; and 7367, at para. 8; and; R. v. Davidson, 2010 ONSC 1508, 207 C.R.R. (2d) 34, at para. 56.

ANALYSIS

[18] This application raises the following issues:

1. Did Cst. Golia violate Mr. Reeves’ s. 8 Charter rights?
2. Did Cst. Golia violate Mr. Reeves’ s. 9 Charter rights?
3. Did Cst. Golia violate Mr. Reeves’ s. 10(b) Charter rights?
4. If Cst. Golia violated Mr. Reeves’ Charter rights, should the fruits of the investigation be excluded under s. 24(2) of the Charter?

Did Cst. Golia violate Mr. Reeves’ s. 8 Charter rights?

[19] A determination of this issue, as with the following two others, inevitably involves an assessment of the credibility of the witnesses called in this hearing.

[20] Cst. Golia stated repeatedly that while standing next to the driver’s door he saw the bottle of Hennessey whiskey with a quarter of its contents having been consumed. He then advised the occupants of the Liquor Licence Act infraction and asked them to exit the vehicle. He decided to search the two males and their vehicle, which he testified he was authorized to do after observing the infraction. He denied all suggestions that he decided to investigate Mr. Reeves because Mr. Reeves was a black male who owned a luxury vehicle. The officer testified that he did not think that the BMW was a luxury vehicle.

[21] However, I have a few concerns about Cst. Golia’s testimony. He agreed under cross-examination that he had made his notes in a sequential manner. However, he also agreed that the first reference in his notes to a Liquor Licence Act infraction appeared after a reference to conducting a pat-down search of Mr. Reeves. This corroborates Mr. Reeves’ testimony that he was searched before any search of his vehicle.

[22] Second, the officer issued a ticket to Mr. Reeves for having liquor in an open container other than in a licenced premise, residence or private space. The officer testified that he later realized that this was a mistake and that the appropriate charge should have been having care and control of a vehicle with an open bottle of alcohol.

[23] However, the Liquor Licence Act infraction which Cst. Golia laid against Mr. Reeves confirms the accused’s testimony that the officer saw Mr. Amoah with the bottle in his hand outside the vehicle. I also find it strange that the first time Cst. Golia disclosed this “mistake” was while testifying in this hearing.

[24] Third, I am also concerned about Cst. Golia’s version of events based on some of the notes he made about his investigation. Under cross-examination, defence counsel showed him a copy of the synopsis which he had prepared. The officer was reluctant to concede that he had prepared the synopsis. Under re-examination however, he testified that there was a mistake in the synopsis “that I included drinking as well”.

[25] What mistake was the officer referring to? Cst. Golia noted in the synopsis he prepared approximately three hours after his investigation that “police observed two occupants of the vehicle to be drinking from an open container of alcohol.” Additionally, the synopsis prepared by the officer makes no reference to the officer searching Mr. Reeves’ car and finding alcohol within it. This statement in the synopsis, suffice it to say, is significantly at odds with the officer’s testimony that he saw the bottle of Hennessey in the centre console of the vehicle.

[26] Fourth, I am concerned about the officer’s testimony that he saw the bottle within the vehicle while standing outside the driver’s door. He could not remember if the glass window was down or up, if the interior light of the vehicle was on or if he used his flashlight. He testified, however, that there were street lights in the area which was rather well lit.

[27] However, Cst. O’Connor testified that the lighting where Mr. Reeves’ car was parked was not great and indeed the area was “pretty dark”. In my view, if there were no lights on within Mr. Reeves’ vehicle and the officer did not use his flashlight, he would not have been able, given the poor lighting in the area, to have seen the bottle of whiskey in the centre console and observe that one quarter of its contents had been consumed. This is even more apparent if the driver’s glass window had been up when the officer allegedly saw the whiskey in the centre console.

[28] I should note, parenthetically, that I place no weight on Mr. Reeves’ testimony that the windows of the vehicle were tinted. He identified a photograph, which purports to show the back of his vehicle, as proof that the windows were tinted. However, the licence plate of the vehicle is not visible thereby making it difficult to confirm that the BMW shown in the photograph is indeed Mr. Reeves’ vehicle. I therefore place no weight on his testimony to that effect.

[29] Cst. O’Connor’s testimony further conflicts with that of his colleague in another important respect. Cst. Golia testified that he decided to release Mr. Amoah unconditionally because of Mr. Reeves’ repeated statement that the cocaine belonged to him. However, Cst. O’Connor also testified that he decided to release Mr. Amoah after Mr. Amoah had given a written statement indicating that the cocaine did not belong to him.

[30] The Crown correctly asserts that minor discrepancies in the testimony of both officers are the hallmarks of truth. However, major discrepancies are the hallmarks of evidence that is neither credible or reliable.

[31] I am also concerned that Cst. Golia was reluctant to admit to even well-known facts such as, for example, that a BMW is a luxury vehicle. He testified that he was not sure if it could be considered as such. By contrast, Cst. O’Connor had no problem conceding that BMW is a luxury brand. Furthermore, Cst. Golia testified that he took no notice of the skin colour of Mr. Reeves and Mr. Amoah or of the kind of car they were driving.

[32] Mr. Reeves testified that before they encountered Cst. Golia, they had been at Mr. Amoah’s residence. They ordered pizza. Mr. Reeves also needed to get a lighter from his car to smoke cigarettes while Mr. Amoah wanted to retrieve a bottle of whiskey from the car. The two men entered the car and exited it with the lighter and bottle of whiskey. As they walked back to Mr. Amoah’s residence, Cst. Golia approached them. The officer asked them what they were up to. Mr. Amoah told the officer they were going to have a drink. Mr. Amoah had the bottle of whiskey in his hand. The officer told Mr. Reeves and Mr. Amoah that he had to issue them a ticket for consuming alcohol in a public place.

[33] Cst. Golia then searched Mr. Reeves, including his pants pockets. He found a key in one of Mr. Reeves’ pockets. The officer said he had to search the vehicle. He asked the two men to sit on the curb. The officer then radioed for another officer to assist him. After another police officer arrived, Cst. Golia searched Mr. Reeves’ vehicle. He later announced that he had found cocaine in the car. The officer then arrested Mr. Reeves. Mr. Reeves advised the officer that he did not know that there was cocaine in the car.

[34] The Crown urges me to reject Mr. Reeves’ testimony for a few reasons. He questions Mr. Reeves’ testimony about ordering a pizza given that a pizza delivery person never arrived at the scene and that Mr. Reeves never had a missed call concerning the pizza. However, it is unlikely that Mr. Reeves would have known if a pizza delivery person arrived at Mr. Amoah’s building, given that Cst. Golia arrested him and placed him in the back of his cruiser. Second, Cst. O’Connor testified that following his arrival, the two males told him that they had ordered pizza.

[35] The Crown also questioned why Mr. Reeves would have had a need to obtain a lighter from his car given that Mr. Amoah’s family would have had a barbecue lighter or matches at their home. However, it is a matter of speculation whether Mr. Amoah’s family had these items in their residence.

[36] The Crown also submits that if Mr. Reeves had gone for his lighter, there would have been no need for him to get into the car. However, Mr. Reeves testified that he entered the car to look for the bag where his lighter was.

[37] The Crown also put to Mr. Reeves that Mr. Amoah was drinking when Cst. Golia approached them. Mr. Reeves denied this. His evidence is corroborated by Cst. Golia and Cst. O’Connor, both of whom testified that they did not smell alcohol on Mr. Reeves or Mr. Amoah’s breath. Indeed, Cst. Golia testified that his synopsis of the incident, which states that he had seen Mr. Reeves and Mr. Amoah drinking, was a “mistake”. Mr. Reeves was never shaken during cross-examination that he had been outside his car when Cst. Golia investigated him.

Findings of Fact

[38] For the above reasons, I find that Mr. Reeves and Mr. Amoah were outside Mr. Reeves’ car when Cst. Golia investigated them. Mr. Amoah had a bottle of Hennessey whiskey in his hand and advised the officer that they were going to drink at his residence. The officer likely saw that some of the bottle’s contents had been consumed and then decided to charge the men for having alcohol in an open container other than in a licenced premise, residence or private place. The officer then searched Mr. Reeves. He decided to search Mr. Reeves’ car after finding a car key in Mr. Reeves’ pocket. Cst. Golia effectively detained both men after forming the intention to charge them with a Liquor Licence Act infraction. He decided to charge the two with a criminal offence after finding cocaine in the vehicle.

[39] In my view, Cst. Golia acted unlawfully when he first searched Mr. Reeves and later Mr. Reeves’ car. He had no legal authority to do either. Neither did he have any legal authority to charge Mr. Reeves with a Liquor Licence Act infraction.

Did Cst. Golia violate Mr. Reeves’ s. 9 Charter rights?

[40] In my view, the officer violated Mr. Reeves’ s. 9 Charter rights. The officer detained Mr. Reeves when he decided to arbitrarily and unlawfully search him at the scene. Mr. Reeves was clearly not free to leave the scene while Cst. Golia searched him and later his vehicle. This search was not justified as incidental to the Liquor Licence Act infraction, given that Mr. Reeves was not in possession of the bottle of whiskey. Furthermore, the officer did not smell alcohol on Mr. Reeves’ breath.

[41] For the above reasons, the detention of Mr. Reeves at the scene was unlawful and a violation of his s. 9 Charter rights.

Did Cst. Golia violate Mr. Reeves’ s. 10(b) Charter rights?

[42] Mr. Reeves denied that he told the officer that the cocaine found in the vehicle belonged to him. I am somewhat skeptical about the officer’s testimony concerning this spontaneous utterance because of a conflict in the testimony of the two police officers. Cst. Golia testified that he initially charged Mr. Reeves with simple possession but later decided, after arresting Mr. Reeves and reading him his Charter rights, to charge him with possession for the purpose of trafficking. On the other hand, Cst. O’Connor testified that four minutes after Cst. Golia started to search Mr. Reeves’ vehicle, the two men could then be arrested for possession for the purpose of trafficking. Second, Cst. O’Connor testified that he could not recall Mr. Reeves saying anything during the search of his vehicle or shortly after Cst. Golia found drugs within it.

[43] For the above reasons, I am not persuaded that Mr. Reeves made the utterances attributed to him by Cst. Golia.

[44] Even if I find as a fact that Mr. Reeves admitted to having knowledge of the cocaine found in the car, that statement, in my view, was obtained following a violation of Mr. Reeves’ ss. 8 and 9 Charter rights.

Should the evidence obtained as a result of the violation of Mr. Reeves’ ss. 8 and 9 Charter rights be excluded?

[45] In Grant, at para. 71, the Supreme Court of Canada set out the appropriate tripartite test for exclusion of evidence following a Charter breach or breaches. These are:

1. The seriousness of the Charter infringing state conduct;
2. The impact of the offending conduct on the Charter protected rights of the accused; and
3. Society’s interest in having the case adjudicated on its merits.

Seriousness of the Charter-infringing state conduct

[46] In my view, the state conduct in this case is very serious. There was simply no legal justification for detaining Mr. Reeves, searching him and searching his car. Any Liquor Licence Act infraction which may have been committed by Mr. Amoah did not justify the detention and search of Mr. Reeves or his motor vehicle.

[47] The Charter is not a document of recent vintage but rather has a distinguished provenance. The rights and freedoms set out within it must be respected by persons in authority at all times.

[48] Cst. Golia’s actions cannot be justified on the basis of the need to conduct “proactive patrols” in a “high crime” area. Persons who reside in areas described in such a manner are as entitled to equal protection and respect for their Charter protected rights as any other persons who reside in affluent areas. Additionally, Cst. Golia was less than forthright with the court about his conduct during the investigation. This factor therefore favours exclusion of the evidence.

Impact on Mr. Reeves’ Charter-protected rights

[49] In my view, the impact of the state-infringing conduct on Mr. Reeves’ Charter protected rights is also very serious. He was detained in the early morning hours of May 14, 2017, in a residential neighbourhood. His privacy was violated when he was arbitrarily searched. His vehicle was then searched. He was handcuffed at the scene and placed in the back of a police cruiser. He was held there for some time until his eventual release.

[50] In my view, this factor also favours exclusion of the evidence obtained during the investigation.

Society’s interests in the adjudication of the case on its merits

[51] While this factor favours admission of evidence in some cases, it does not in this case. Admittedly, cocaine is an insidious drug that has wreaked untold havoc in the community. Our society has an abiding interest in ensuring that persons involved in the insidious drug trade are prosecuted to the full extent of the law. However, a reasonable person, fully apprised of an accused’s Charter-protected rights, the presumption of innocence and the equality provisions of the Charter would likely conclude that the admission of the evidence in question would more likely bring the administration of justice into disrepute than its exclusion.

CONCLUSION

[52] The drugs found in Mr. Reeves’ car and any statements attributable to him during the course of the investigation are excluded.

André J.

Released: March 22, 2019