Court File and Parties

COURT FILE NO.: CR-18-06-MO DATE: 2019-04-18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – THANH TRAN HUU Applicant

Counsel: Courtney D. Cottle, for the Crown William Webber, for the Applicant

HEARD at Kingston: 27 March 2019

Mew J. (ORALLY)

REASONS FOR DECISION (Application under section 24(2) of the Charter of Rights and Freedoms)

Facts

[1] In December 2016, the Kingston Police Drug Squad was conducting an investigation into drug trafficking operations in the City of Kingston. As part of that investigation, they had an individual, TW, under surveillance.

[2] On 30 December 2016, police observed TW entering a brown BMW SUV and being taken to a parking lot near his apartment. The BMW was driven by an Asian male and had a Quebec licence plate. Once the car was parked, the driver reached behind the passenger seat and handed TW a brown and gold cylinder as well as a cereal box-sized package with green and white Christmas wrapping paper. TW exited the vehicle and removed a large box with blue and white sides from the trunk. TW took the items into his residence and the BMW departed.

[3] Constable Kyle Brown, who was involved in the drug investigation, followed the BMW. He kept in contact with Sergeant Patrick Benoit, who was coordinating the investigation. Sergeant Benoit requested the officer in charge at the police station to have a general patrol officer conduct a traffic stop of the vehicle under the Highway Traffic Act, R.S.O. 1990, c H.8 (the “HTA”). His goal was to identify the driver of the vehicle.

[4] Constable Dan Atwood conducted the traffic stop and identified the applicant through his driver’s licence. The applicant was told that he had been stopped for a dirty licence plate. He was not advised of the true reason for the stop, nor was he provided with his rights to counsel. The applicant was sent on his way after being identified.

[5] Shortly after the traffic stop, police arrested TW. His keys were obtained and his apartment was searched under the authority of a search warrant that had previously been obtained. One of the items seized during that search was the large box with blue and white sides which officers had observed being passed by the applicant to TW. Inside was a large quantity of suspected cannabis. The police charged TW and the applicant with possession of cannabis for the purposes of trafficking. The police used the applicant’s identity, which had been obtained during the traffic stop, to obtain an arrest warrant.

[6] A month and a half later, on 15 February 2017, Constable Brown observed the same brown BMW in Kingston. He stopped the vehicle and arrested the applicant pursuant to the outstanding arrest warrant. A subsequent search of the applicant’s vehicle resulted in the seizure of large quantities of cannabis, cocaine, and methamphetamine. The applicant was charged with three counts of possession for the purposes of trafficking.

Issues

[7] The applicant submits that the evidence was seized in a manner that infringed his rights under sections 7, 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms. He applies for an order under s. 24(2) of the Charter excluding the identification of the applicant obtained on 30 December 2016, and the drugs seized on 15 February 2017.

[8] The applicant argues that the police engaged in a “ruse” or “pretext” traffic stop on 30 December 2016. This stop itself is said to have violated his s. 9 Charter rights (the right not to be arbitrarily detained or imprisoned). The stop enabled the police to obtain the applicant’s identification, which he submits was in violation of his right under s. 8 of the Charter (unreasonable search or seizure). He further submits that he was not advised of the true reason for his detention, nor his right to counsel, contrary to sections 10(a) and 10(b) of the Charter. Finally he argues that his arrest on 15 February 2018 violated his s. 7 Charter rights (life, liberty and security of the person).

[9] The Crown asserts that there were no violations of s. 8, 9, 10(a), 10(b) or 7. In her factum, counsel for the Crown submits that the traffic stop was a dual-purpose stop authorised pursuant to s. 216(1) of the HTA. She submits that the HTA purpose was the applicant’s dirty licence plate and the other purpose was to identify the driver due to his suspected connection with an ongoing drug investigation.

Section 9

[10] Section 216(1) of the HTA states:

A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop and the driver of a vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

[11] In Brown v. Durham Regional Police Force (1998), 167 D.L.R. (4th) 672 (Ont. C.A.), the Court of Appeal recognised that the HTA “authorizes the stopping of vehicles for what may be broadly described as highway regulation and safety purposes” but that the stop need not be limited solely to HTA purposes. The Court held that: “As long as the additional police purpose is not improper and does not entail an infringement of the liberty or security of the detained person beyond that contemplated by the purpose animating s. 216(1) of the HTA, we see no reason for declaring that a legitimate police interest beyond highway safety concerns should taint the lawfulness of the stops and detention”.

[12] If, however, the HTA concerns were merely a ruse used by the police to justify the stopping of the Applicant, the stop is not authorised: see Brown, at paras 21, 25 and 31; R. v. Ravindra, 2018 ONSC 3200, at para 4.

[13] If, as the Crown submits, the dirty licence plate provided the valid HTA purpose, the other purpose of collecting the applicant’s identification and information in furtherance of a criminal investigation would not render the search improper.

[14] I disagree. The traffic stop was unlawful. The evidence clearly demonstrates that the applicant’s allegedly dirty licence plate was merely a ruse used to justify the stop.

Evidence

[15] Sergeant Benoit was refreshingly candid about the purpose of the traffic stop. Asked if the stop was merely a pretext to find out who was driving the vehicle, he responded, “That’s correct”. He was also asked about whether he had any knowledge of any breach of the HTA by the applicant. He responded “… so whatever the officer that was going to stop him, he was going to do whatever he needed to be done.”

[16] Sergeant David Green was the “road boss” of the surveillance team. When asked about the reason for stopping the applicant’s vehicle, he responded, “Well, I think the primary reason was we wanted the driver identified for this ongoing investigation”.

[17] Constable Atwood testified during a discovery proceeding that a broadcast went out over the radio from the drug/street crime unit requesting a uniformed officer to stop a vehicle in order to identify the driver. Constable Atwood was able to get behind the vehicle and completed the traffic stop. He testified that he informed the driver that the reason for the stop was his dirty licence plate. He checked the applicant’s driver’s licence and took it back to his vehicle. From the licence, he obtained the applicant’s information and confirmed it with the drug/street crime unit.

[18] Constable Atwood confirmed that the licence plate, while dirty, was not obstructed. He testified “it was my reason for telling him to stop, but my reason for stopping him was at the request of the surveilling units, which isn’t uncommon”.

[19] During cross-examination, it was put to Constable Atwood that he had written in his police notes that the purpose of the stop was due to a dirty licence plate. He was asked whether this was the reason for the stop, to which he responded “no, I was requested to stop”.

[20] This case is similar to R. v. Gonzales, 2017 ONCA 543, where the Court of Appeal held, at para. 45:

The decision in Brown v. Durham Regional Police Force that the trial judge found to be dispositive has no application. In Brown v. Durham Regional Police Force, unlike here, there were legitimate highway safety concerns, in addition to criminal intelligence purposes… the evidence revealed but a single dual purpose here, a purpose which had nothing to do with s.216(1).

[21] As in Gonzales, there were no legitimate highway safety concerns in this case. The sole purpose of the stop was to obtain the identification of the applicant, a purpose which is unrelated to an officer’s authority under the HTA. As s. 216(1) of the HTA did not provide lawful authority to stop the vehicle and detain the applicant, the powers associated with and predicated upon those concerns cannot be summoned to legitimise the stop. Some other legal authority must be found as a sponsor: R. v. Simpson (1993), 12 O.R. (3d) 182 (C.A.) at p 492-493.

[22] The stop was arbitrary because it was not based upon any common law or statutory power and Constable Atwood did not have the basis to detain the applicant at that point in time. Accordingly, the applicant’s s. 9 Charter right was infringed.

Section 8

[23] The applicant submits that Constable Atwood asking for his driver’s licence constituted an unreasonable search and seizure contrary to his rights under section 8 of the Charter.

[24] Answers to police questions do not always give rise to a s. 8 claim. It must be determined whether the search or seizure was non-consensual and whether the accused exercised a reasonable expectation of privacy in the totality of the circumstances: R. v. Edwards, [1996] 1 S.C.R. 128 at para 31. A fact-specific inquiry is required.

[25] In R. v. Mellenthin, [1992] 3 S.C.R. 615, the accused was stopped in a routine roadside check stop. He did not show any signs of impairment but the police officer asked to see the accused’s driver’s licence. The officer used the opportunity afforded by the stop to investigate other crimes. He asked the driver about the contents of a bag in his vehicle. After noticing glass vials in the bag, the officer searched the bag and found narcotics. The Crown submitted that the accused voluntarily answered the questions. The court rejected this submission finding (at para. 16) that:

It is true that a person who is detained can still consent to answer police questions. However, that consent must be one that is informed and given at a time when the individual is fully aware of his or her rights. This was certainly not the situation which was present in this case.

[26] The same is true for the applicant. As will be discussed later in these reasons, he was not aware of the true reason for his detention nor of his right to counsel. As such, his decision to surrender his licence information to the police cannot be said to have been consensual.

[27] The next question is whether the applicant had a reasonable expectation of privacy in the information contained on his driver’s licence, specifically, his name.

[28] In R. v. Hufsky, [1988] 1 S.C.R. 621, the Supreme Court held that there was no reasonable expectation of privacy when a driver was asked to surrender his licence during a HTA stop. However, unlike in the present case, the HTA stop under consideration in Hufsky was found to be a valid stop with a true HTA purpose.

[29] In R. v. Harris, 2007 ONCA 574, the Court of Appeal considered whether there was an expectation of privacy in one’s name. While acknowledging that a reasonable expectation in one’s name is not present in many contexts, they held that where someone is under police detention, and feels compelled to provide the information, there may be a reasonable expectation of privacy (Harris, para. 34).

[30] In the present case, Constable Atwood had a specific purpose in mind when asking for identification. He was not asking out of curiosity or for another innocent purpose. He intended to provide the identification to the surveilling units to implicate the applicant in a drug investigation. In other words, the applicant’s identification was a piece of incriminating evidence.

[31] Because Constable Atwood’s questions as to the applicant’s identity arose during an arbitrary detention, during which the applicant had not been advised of his right to counsel or silence, I find that the applicant was entitled to a reasonable expectation of privacy in the content of his driver’s licence. Further, there was a reasonable basis to infer that the applicant felt compelled to give answers to the officer’s questions. Thus, the information that was seized was in violation of his right to freedom from unreasonable search and seizure under s. 8 of the Charter.

Section 10(a)

[32] The applicant submits that his rights under s. 10(a) of the Charter were breached as Constable Atwood failed to inform him of the reason for his detention.

[33] The evidence is clear that Constable Atwood told the applicant that the reason for the stop was his dirty licence plate. At no time did Constable Atwood inform the applicant that he was being investigated for implication in an on-going drug investigation. Thus, s. 10(a) of the Charter was breached when Constable Atwood failed to inform the applicant of the real reason for his detention: see R. v. Caines at para. 53.

Section 10(b)

[34] The applicant submits that his 10(b) rights were breached because Constable Atwood did not inform him of his right to counsel at any point during his detention.

[35] Section 10(b) is engaged from the moment an individual is detained. Police have an obligation to inform a detainee of his or her rights to counsel “without delay”. The immediacy of this obligation is subject only to concerns for officer safety, public safety, or to reasonable limits that are prescribed by law and justified under s. 1 of the Charter: R. v. Suberu, 2009 SCC 33 at para 2.

[36] A brief stop pursuant to a valid HTA investigation does not trigger s. 10(b) of the Charter: R. v. Harris, at para. 47. However, given my finding that the nature of the detention was for criminal investigative purposes, the police were obliged to advise the applicant of his right to retain and instruct counsel immediately: R. v. Mhlongo, 2017 ONCA 562 para 49.

[37] This did not occur and so the applicant’s right to counsel was breached.

Section 7

[38] The applicant did not address the issue of his section 7 rights in his factum and made only passing reference to s. 7 in oral submissions. I will not attempt a further analysis of the alleged breach of his s. 7 rights in the absence of any attempt by the applicant to develop his position on this issue further.

Section 24(2)

[39] Having concluded that the applicant’s section 8, 9, 10(a) and (b) rights were violated, I must consider whether the evidence should be excluded under s. 24(2) of the Charter.

[40] The leading case on the admissibility of evidence obtained in violation of an accused person’s Charter rights is R. v. Grant, 2009 SCC 32, at paras 72-86, in which the Supreme Court directs courts to examine and consider:

1. the seriousness of the Charter- infringing state conduct;
2. the impact of the breach on the Charter protected interests of the accused; and
3. society’s interest in an adjudication on the merits.

[41] In order to be entitled to the exclusion of evidence under s. 24(2), the applicant must establish that the evidence was “obtained in a manner” that infringed the Charter.

[42] In this case, a clear causal connection exists between the arbitrary detention and subsequent search leading to the applicant’s identification. Without this identification, a warrant for his arrest would not have been authorised. The arrest under this warrant produced the impugned evidence.

[43] It is conceded that if this evidence is excluded, the charges against the applicant cannot be sustained.

Seriousness of the Charter- infringing state conduct

[44] Constable Atwood detained the applicant without any reasonable grounds to believe that he was involved in any crime, in violation of his s. 9 rights. He then used the detention to conduct an unauthorised search of his driver’s licence in violation of his s. 8 rights. He used his driver’s licence to obtain the applicant’s identity. Throughout the detention, the applicant was never informed of the true reason for his detention, nor of his right to counsel. His actions show a clear disregard for constitutional rights.

[45] While the police breached their section 8, 9, and 10 obligations, they did so to protect their investigation and not to intentionally circumvent the applicant’s rights. Constable Atwood did not use the opportunity presented by the detention to ask the applicant about where he had been, or about the drugs. He did not take any steps to take advantage of the applicant’s lack of access to counsel: R. v. Dibble, 2011 ONSC 399 at para 42.

[46] However, the Charter breaches in this case were not the result of an innocent mistake. While the police did not deliberately set out to breach the Charter, their actions demonstrated an indifference to Charter rights. Ignorance of, or failure to conform with, Charter standards should not be rewarded or encouraged: see, generally, R. v. Kokesch, [1990] 3 S.C.R. 3 at p 32-33. Indeed, the Brown decision, which held that using an HTA violation as a ruse is not authorised at law, was released as long ago as 1998. The officers should have known this.

[47] Most troubling is that this seems to be a systemic attitude within Kingston Police. During the preliminary inquiry, Constable Atwood testified that the applicant’s licence plate “wasn’t obstructed, it was my reason to tell him for the stop, but my reason for stopping him was at the request of the surveilling units, which isn’t uncommon”.

[48] Where police continue to engage in conduct specifically denounced by the court, the violation is serious: R. v. Dale, 2012 ONCJ 692 at para 38. The court must disassociate itself from this conduct. Furthermore, “[s]ystemic or institutional abuse of constitutional rights may be an aggravating factor rendering police misconduct more serious”: R. v. McGuffie, 2016 ONCA 365 at para 67.

[49] Overall, I find that the officer’s conduct was towards the higher end of the spectrum of severity.

Impact of the breach on the Charter protected interests of the accused

[50] The detention and search of the applicant was very short, lasting less than two minutes. It was not overly public or otherwise humiliating or demeaning. Additionally, the impact of the violation of privacy is not as severe as one dealing with bodily integrity or the privacy of one’s home. However, as held by the Supreme Court in R. v. Harrison, 2009 SCC 34, at paras. 30-31:

It is true that motorists have a lower expectation of privacy in their vehicles than they do in their homes. As participants in a highly regulated activity, they know that they may be stopped for reasons pertaining to highway safety… This said, being stopped and subjected to a search by the police without justification impacts on the motorist’s rightful expectation of liberty and privacy in a way that is much more than trivial… A person in the appellant’s position has every expectation of being left alone – subject, as already noted, to valid highway traffic stops.

[51] In Harrison, after making an initial traffic stop which the court found he should not have made, the officer discovered that the accused’s licence had been suspended. Having arrested the accused for that reason, he then proceeded to search the vehicle and found boxes of cocaine. The Supreme Court found that deprivation of the accused’s liberty and privacy was “a significant, although not egregious, intrusion on the appellant’s Charter- protected interests.

[52] The search in the present case was limited to asking the applicant for his driver’s licence. The Crown argues that because police can validly stop a vehicle for the purpose of ensuring compliance with licence, registration and insurance requirements, the impact of the breach of the applicant’s Charter-protected interests was minimal.

[53] While the circumstances of the breach of the applicant’s Charter-protected interests in the present case are distinguishable from those in Harrison, the impact of the breach was nevertheless, ultimately significant. It led to the issuance of an arrest warrant and the subsequent arrest of the applicant and seizure of drugs found in his vehicle.

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

[54] This prong of the Grant test favours inclusion of the evidence. The evidence is real and sufficiently reliable that without exclusion, the defence concedes it establishes guilt. It is essential to the Crown’s case. The assessment provided by the majority of the Supreme Court in R. v. Harrison, at para. 34, is equally applicable in the present case:

The evidence of the drugs obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. With that caveat in mind, the third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public’s interest in having the case adjudicated on its merits.

Balancing

[55] As advised by the Court of Appeal in R. v. McGuffie, 2016 ONCA 365 at para 63, the third factor cannot overwhelm the analysis:

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: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.

[56] There are circumstances in which the use of a ruse can be regarded as a legitimate policing technique, notwithstanding that Charter violations may occur as a result (see, for example, R. v. Dibble, 2011 ONSC 399 and R. v. Bielli, 2016 ONSC 6866, where ruses were regarded as legitimate because of the nature of ongoing investigations). And, as the Court of Appeal recognised in Brown, so-called “dual purpose stops can be lawful, provided that there are genuine HTA concerns.

[57] In the present case, however, the officers concerned openly acknowledged that the traffic stop was a ruse. No attempt was made to excuse the police conduct on the basis of protecting the ongoing drug investigation or otherwise. Although the applicant was told that he had been pulled over for a dirty licence plate, the police conceded that this was an artifice. Significantly, the evidence was that making traffic stops at the request of surveilling units is not uncommon.

[58] The first two factors pull towards exclusion of the evidence, strongly in the case of the seriousness of the Charter- infringing conduct, a little less so on the “impact” prong, where the breach was significant but not egregious.

[59] Ultimately, well-trained police officers would know that they cannot, as a general rule, conduct pretext traffic stops. By doing just that in this case, the police ran roughshod over the applicant’s constitutional rights. That is unacceptable. While my ultimate disposition of this matter is a very close call, balancing all of the factors as best I can, I have concluded that the evidence obtained as a result of the unlawful stop and subsequent actions of the police in violation of the applicant’s Charter rights should be excluded.

[60] The application is therefore granted.

Graeme Mew J.

Hand down (orally): 18 April 2019