COURT FILE NO.: CR-18-1344
DATE: 2019 10 09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Nick Cooper, for the Crown
- and -
KAMALJIT GREWAL
Ayesha Abbasi, for the Accused
Accused
HEARD: September 30, October 1 and October 2, 2019
REASONS FOR RULING
COROZA J.
A. Overview
[1] On October 2, 2019, I granted a defence application to exclude heroin seized by Peel Regional Police officers during an investigation into an allegation of domestic assault made against Kamljit Grewal. I promised I would release written reasons explaining why I granted the application. These are my reasons.
B. Background
[2] On November 17, 2017, Mr. Grewal was sitting in a Nissan Altima parked in the driveway of his home. As a result of a complaint made by his wife, he was arrested for domestic assault in the driveway. After he was arrested, the police searched the Nissan and discovered heroin in a tin container located in the centre console of the car.
[3] Mr. Grewal brings this application before trial to exclude the heroin under s. 24(2) of the Canadian Charter of Rights and Freedoms on the ground that the police had violated his constitutional rights. He claims that the police search of his car was unreasonable and contrary to s. 8 of the Charter because it was carried out without any valid purpose connected to the arrest.
C. The Evidence
[4] Two witnesses were called on this application. I will now briefly review the evidence of both.
(i) The Evidence of Cst. Olton
[5] Cst. Ryan Olton was dispatched to the original domestic assault call at 8:33 p.m. on November 1, 2017.
[6] He learned that a complaint had been made by a woman who claimed that her husband had slapped her. The complainant had left her husband at the home and was now in the area of a nursing home.
[7] Cst. Olton drove to the complainant’s location. He met the woman and spoke to her. As a result of their conversation, he learned the following:
• The woman had been assaulted by her husband;
• He was acting out of sorts;
• He was unstable; and
• She feared for her safety.
[8] After receiving this information, Cst. Olton then drove with the complainant to the home (2 Chatelaine Boulevard in Brampton, Ontario). They arrived at 8:56 p.m.
[9] At some later point, Cst. Thomas also arrived at the scene to assist.
[10] Cst. Olton described the area as dark with poor lighting. Cst. Olton testified that there were two cars parked in the driveway of the home. A Nissan Altima was in front of the garage with the headlights facing the garage.
[11] According to the officer, the complainant pointed to the Nissan and told the officer that her husband was sitting in that car. Cst. Olton approached the car. He testified that as he was walking towards the Nissan, he saw damage to the garage door. It caught him off guard and he believed the car had possibly hit the garage door. When he reached the car, he saw Mr. Grewal sitting in it. He asked him to get out of the car.
[12] According to Cst. Olton, Mr. Grewal was behaving oddly. He testified that Mr. Grewal did not know where he was and he was not aware of his surroundings.
[13] Cst. Olton placed Mr. Grewal under arrest for the assault and searched him. He located approximately $1,740.00 in cash, his wallet, and a folded piece of paper towel.
[14] Cst. Olton testified that he took Mr. Grewal back to the police cruiser, put the items he had seized on top of his trunk, and handcuffed Mr. Grewal.
[15] After arresting Mr. Grewal for assault, Cst. Olton decided to search the car. He testified that his reasons for doing so was in relation to Mr. Grewal's demeanour and the complainant's statement to him that her husband had been acting oddly. He explained that there may have been a substance abuse issue or a mental health issue and believed a search might provide information about the assault charge.
[16] Cst. Olton explained that an arrest for domestic assault is a common occurrence. He further testified that domestic assault investigations include looking at drug or alcohol use, as it is an indicator for the likelihood for reoffending and is relevant to release procedures.
[17] During his search of the car, Cst. Olton eventually found a metal tin inside the centre console. He could not recall if the tin was in plain view or whether he had to open up the console to locate the tin.
[18] It is not disputed that the tin contained eight grams of heroin.
[19] During cross-examination, Cst. Olton acknowledged that he provided a supplementary typed “will say” statement dated September 24, 2019, disclosing additional information supporting his rationale for searching the car.
[20] He also agreed with Mr. Grewal’s counsel that he did not note down drugs or alcohol as being a factor in the initial complaint. Nor, did he note down that there was anything unusual about Mr. Grewal's behaviour in his notes related to drugs and alcohol. He also agreed that the complainant did not mention drug or alcohol use as being a factor in the assault or her husband’s behaviour.
[21] With respect to the damage of the garage door, he agreed that he did not note that in his notes.
(ii) The Evidence of Cst. Thomas
[22] Cst. Thomas arrived at the nursing home, where the complainant was located, at around 8:51 p.m. on November 1, 2017.
[23] Cst. Thomas explained that Cst. Olton was already present when he arrived. Cst. Thomas did not believe that he had any personal interaction with the complainant.
[24] He followed Cst. Olton and the complainant to 2 Chatelaine Court. As he recalled it, he saw the Nissan Altima reversed into the driveway, facing the road. He followed Cst. Olton up the driveway.
[25] Cst. Thomas explained that he saw Mr. Grewal sitting in the Nissan with a towel over his face, recalling that he was emotional. Mr. Grewal was very upset and appeared to be acting in a strange manner that was connected to the dispute.
[26] He stood by Cst. Olton while he arrested Mr. Grewal. He saw Cst. Olton remove cash and a paper towel from Mr. Grewal.
[27] He recalled that they then escorted Mr. Grewal back to Cst. Olton's police car. He testified that once Mr. Grewal was placed in the back of the cruiser, he went through the property of Mr. Grewal. He could not recall where he did this.
[28] Cst. Thomas testified that he opened up the paper towel, which was scrunched up, and observed a brown rock-like substance inside. He believed it was heroin, and secured it and the paper towel in a property bag.
[29] He testified that he could not recall if he had mentioned this to Cst. Olton.
[30] Cst. Thomas eventually did search the Nissan, but it would have been after 9:24 p.m. and only after the ambulance had arrived to assist Mr. Grewal.
[31] In cross-examination, he agreed that he did not notice any damage to the garage nor any damage to the Nissan.
[32] He also acknowledged that Mr. Grewal was emotional when he was first approached by the officers. He also testified that there was nothing notable or strange about his behaviour considering the assault that was alleged.
D. Positions of the Parties
[33] On behalf of the Crown, Mr. Cooper argues that the search of the car was reasonable. The police had the authority to search the car incident to arrest. The Crown argues that a search incident to arrest is reasonable if it was conducted to ensure the safety of the police or public, protect evidence from destruction, or discover evidence which can be used at the accused’s trial.
[34] On behalf of Mr. Grewal, Ms. Abassi does not dispute that his arrest for domestic assault was lawful. However, counsel argues that the search incident to arrest must be truly incidental to the arrest in question. She argues that the search of the car was not truly incidental to the lawful arrest. She argues that the power to search incident to arrest is not an automatic or “all-or-nothing” power. In this case, there was no justification for the search of the car.
E. The Law: Searches Incident to Arrest
[35] The police possess a common law power to search a car incident to a lawful arrest. This power is an exception to the ordinary requirements for a reasonable search because it requires neither a warrant nor independent reasonable and probable grounds. Instead, the right to search a car arises from the fact of the arrest and is justifiable because the arrest itself requires reasonable and probable grounds or an arrest warrant.
[36] The purpose behind the authority to search arises out of a need for law enforcement authorities to gain control of the situation or obtain information, which outweigh the individual's interest in privacy: see R. v. Bacchus, 2012 ONSC 5082, at paras. 64-75.
[37] This power to search incident to arrest is not absolute. The Supreme Court of Canada in Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, identified three important limits on the power to search incident to arrest. First, the power does not impose a duty, as the police have some discretion whether to conduct a search. Second, the search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the public, or the accused, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case, for example, if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions. Third, the search must not be conducted in an abusive fashion.
[38] In R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, Lamer C.J. repeated the test as follows, at para. 25:
In summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable.
F. Findings Regarding Cst. Olton’s Credibility
(i) Cst. Olton's Testimony is Not Credible
[39] The testimony of Cst. Olton does not leave me with any confidence that his search of the car comes within the confines of Cloutier.
[40] I do not find Cst. Olton to be a credible witness for the following two reasons: first, his notetaking is deficient; and second, he provided a late supplementary “will say” statement about a week before trial.
[41] Turning to the first reason, I start with the comments of Hill J. in R. v. Thompson, 2013 ONSC 1527, about the importance of notetaking:
[212] By way of postscript, something must be said about the police note-taking as described in this trial. As a general rule:
(1) because police officers don't wear head-cams and have to discharge their duties in often risky and fast-moving circumstances, it is to be recognized that there is a limit to the degree of detail that can be recorded in a notebook at the scene of an incident or indeed subsequently
(2) reasonable efforts should be made, however, to contemporaneously record significant details, including those relevant to constitutional rights of a suspect - note-taking should not be routinely deferred to later in a shift at a police facility
(3) where multiple officers participate in investigation of an incident, their notes should be made independently and not as a collective and not after a (de)briefing where the incident is discussed as a group
(4) an officer should record when notes were made, where and in whose company if not alone.
[42] See also Schaeffer v. Wood, 2011 ONCA 716, 107 O.R. (3d) 721 (C.A.), at paras. 67-70 (rev’d on other grounds, 2013 SCC 71).
[43] Clearly, Cst. Olton’s notetaking is deficient because he did not note down significant details. The following chart illustrates that there are no notes made in relation to several significant factors that the Crown suggests justify the search of the car.
| Factor/Justification for Search | Notes |
|---|---|
| Complainant’s Statements Prior to encountering Mr. Grewal, Cst. Olton spoke with the complainant and she advised that he was acting unstable. Cst. Olton suggested that this may have been a mental health, drug or alcohol issue. |
No verbatim notes of this conversation. Cst. Olton agreed he was “paraphrasing” what the complainant said during his testimony. He also agreed that he did not note down alcohol, drugs, or the underlying cause for Mr. Grewal’s behaviour in his notebook. |
| Evidence of a Potential Collision The Crown suggests that Mr. Grewal’s presence in the car, combined with the damage to the garage door, suggested impairment. |
No notes about garage door damage. |
| Mr. Grewal’s Demeanour According to Cst. Olton, Mr. Grewal appeared to be “out of it”. The Crown argues that it was proper to search the car to see if there was evidence that would explain this demeanour. |
No notes about Mr. Grewal’s demeanour. No notes about concerns relating to alcohol or drug use. |
[44] Second, I am troubled about the late disclosure of a “will say” statement, prepared on September 24, 2019, that purports to further explain the officer’s rationale for searching the car. The existence of this statement is not disputed. The timing of the statement is not disputed. To be clear, I am not criticizing the Crown for requesting that a “will say” statement be prepared if it was a result of a meeting in preparation for trial. My point is this: Cst. Olton was given an opportunity to explain his rationale for searching the car, in detail, at a time when his memory of the event would have been fresher in his mind – that is, in his notebook on November 1, 2017. Furthermore, he could have provided the details at the preliminary hearing on November 19, 2018.
[45] Indeed, Cst. Olton agreed, in cross-examination, that he was given an opportunity to expand on his reasons for searching the car during the preliminary hearing, and agreed that he was certainly asked about his reasons for searching the car.
[46] Yet, in his “will say” statement, disclosed only a few days before this hearing, Cst. Olton mentioned that what he had learned in domestic violence courses acted as further support for his reasoning to search the car. In my view, I give this evidence very little weight because of the way that his evidence has evolved.
(ii) Findings of Fact Regarding the Heroin in the Paper Towel
[47] As I see it, the Crown’s strongest argument is that the search of the car was reasonable because Mr. Grewal was found to be in possession of heroin as discovered in the paper towel. The Crown argues that the search of Mr. Grewal’s car incident to arrest would have been justified for this reason.
[48] This is indeed a very important piece of Cst. Thomas’ evidence. In his evidence, Cst. Thomas testified that he was given the paper towel by Cst. Olton. He opened the paper towel and saw a brown rock-like substance secreted in the folded piece of paper towel. Cst. Olton also testified that he saw the substance. However, Cst. Olton could not recall at what point he saw this brown substance. It is not in his notes. If I accept that Cst. Olton saw the brown substance before the initial search of the car, then that would strengthen the Crown’s argument that the search was incidental to an arrest for possession of drugs.
[49] After assessing this evidence, I make the following findings:
I prefer Cst. Thomas' evidence over Cst. Olton’s evidence respecting the seizure of heroin in the paper towel. Specifically, I find that Cst. Olton likely handed over the paper towel to Cst. Thomas. Although Cst. Olton testified that at some point he saw a substance in the folded paper towel, this likely occurred after he had already searched the car. Moreover, the discovery of the heroin in the paper towel did not have any bearing on Cst. Olton’s decision to search the car. I say this because Cst. Olton did not advance the possession of a substance as a basis for searching the car in his testimony.
I find that Cst. Thomas opened the paper towel, discovered the heroin, and lodged it in a property bag. Although he searched the car after the ambulance left, Cst. Olton had already searched the car and discovered the metal tin on his own. Cst. Thomas does not recall telling Cst. Olton about the discovery of the heroin in the paper towel.
(iii) Cst. Olton's Search of the Car Was Not Truly Incidental to Arrest
[50] In the end, possession of heroin is not a basis that was advanced by Cst. Olton to search the car. As I see it, Cst. Olton likely searched this car because he believed the search naturally flowed from the domestic assault arrest of Mr. Grewal.
[51] As I have set out above, I have concerns about the credibility and reliability of Cst. Olton as a witness. It is important to note that at no time did he attempt to justify the search for the purpose of officer safety or the detection of a possible weapon in the context of an assault arrest. The reasons advanced by Cst. Olton were connected to his description of Mr. Grewal’s demeanour at the arrest scene.
[52] In my view, there was no objectively reasonable basis to search the car on the grounds of discovering evidence related to demeanour. Cst. Olton’s notetaking about demeanour is deficient. There is nothing about his notes that suggest that the search or Mr. Grewal’s car was tied to drug and alcohol use. Indeed, Cst. Thomas acknowledged that Mr. Grewal appeared to be emotional and that he did not necessarily think his demeanour was tied to drugs or alcohol.
[53] To be truly incidental to the arrest, the police must be attempting to achieve some valid purpose connected to the arrest. Whether one of those objectives exists will depend on what the police were looking for and why. The police must have had one of the purposes for a valid search incident to arrest in mind when the search is conducted. In addition, the officer's belief that the purpose will be served must be an objectively reasonable one.
[54] I find that Cst. Thomas discovered the drugs. However, by the time he did that, Cst. Olton had already conducted a search of the car and discovered the metal tin. Cst. Olton searched the car on the basis that he was trying to find evidence in relation to the domestic assault. In his own words, drugs and alcohol were relevant to the assault. However, I find that his belief was not objectively reasonable.
[55] It follows from this conclusion that the Crown has not discharged his burden of proof. Specifically, I am unable to find that the search of the Nissan was reasonable. I therefore find that Mr. Grewal's s. 8 right under the Charter was breached.
F. Section 24(2)
[56] Based on my findings that Mr. Grewal’s s. 8 Charter right was violated, the onus falls on Mr. Grewal to establish, on a balance of probabilities, why the admission of evidence in the proceedings would bring the administration of justice into disrepute.
[57] In deciding whether or not to exclude evidence in this case, I must, as directed by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, "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."
(i) The Seriousness of the Charter-Infringing State Conduct
[58] In my view, the police misconduct here falls at the very serious end of the spectrum. The law respecting a search incident to arrest has been clear since at least 1990 when Cloutier was released. Further, Cst. Olton is an experienced officer. When it came time to explain the basis for the search, in my view, it is clear that Cst. Olton did not advance a lawful basis to search the car. He disregarded the rights of Mr. Grewal under s. 8 the Charter.
[59] At the first stage of the inquiry, a violation will be considered more serious if the evidence could have been discovered through legal means.
[60] In this case, I acknowledge that Cst. Thomas could have searched the car legally once he discovered that Mr. Grewal could have been arrested for possession of heroin found in the paper towel. An officer's search for drugs incident to an arrest for possession of drugs would have been entirely reasonable.
[61] But that is not what occurred here. Cst. Olton had already decided to search the car following the arrest for domestic assault. The fact that Cst. Thomas could have searched the car legally does not change the fact that Cst. Olton, an experienced police officer who routinely investigates domestic assaults, had no grounds to search the car, and did so before Cst. Thomas had a chance to. The fact that Cst. Thomas could have searched the car lawfully is a relevant consideration, but in my view, does not impact on the seriousness of Cst. Olton’s conduct.
[62] Respectfully, in my view, Cst. Olton had absolutely no basis to go into the car, open up the console, and search it to look for drugs or evidence. This is evidence of a callous disregard of Charter rights. Cst. Olton's actions involved an unjustifiable use of police powers and he crossed the line of what the law permitted. It is Cst. Olton's conduct that led to the seizure of the drugs. The Crown’s discoverability argument therefore does not have any impact on the first prong of the Grant test.
[63] I can find little, if anything, that might be said to mitigate Cst. Olton's conduct on that day. I cannot condone the conduct in this case. The Charter breach is not technical or minor. The first Grant factor therefore weighs heavily in favour of exclusion.
(ii) The Impact of the Breach on the Charter-Protected Interests of the Accused
[64] I now turn to the impact of the breach on Mr. Grewal’s Charter protected interests.
[65] First, while the expectation of privacy that Mr. Grewal had in his car was lower than if it had been his house, I still find that Cst. Olton took advantage of the search incident to arrest power when he blatantly entered the car and searched it while Mr. Grewal was seated in the back of the police cruiser. 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. Grewal still maintained an expectation of privacy in the car and the contents found in it.
[66] Second, the Charter-protected privacy and dignity interests of Mr. Grewal are attenuated by the fact that he was lawfully arrested for domestic assault and the police could have conducted the search lawfully (see R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 64 to 74).
[67] I accept Cst. Thomas’ evidence that he searched the car after finding the substance in the paper towel. Indeed, he would likely have found the heroin in the car incident to arresting Mr. Grewal for a drug offence. On the authority of Côté, this is a relevant consider on the second prong of the Grant test.
[68] However, the existence of a basis for Cst. Thomas to properly search the car does not change the fact that Cst. Olton had no basis to search the car.
[69] Furthermore, Cromwell J. emphasizes in Côté that discoverability is not determinative, as stated at para. 70:
While discoverability may still play a useful role in the s. 24(2) analysis, it is not determinative. A finding of discoverability should not be seen as necessarily leading to admission of evidence. Nor should courts engage in speculation. As stated in Grant, where it cannot be determined with any confidence whether evidence would have been discovered in absence of the Charter breach, discoverability will have no impact on the s. 24(2) inquiry.
[70] In my view, this second Grant factor is neutral in the admissibility analysis.
(iii) Society's Interests
[71] The third factor of the Grant test favours admission. The allegations in this case are serious and involve offences relating to heroin. The evidence from the search is reliable and vital to the Crown's case. Society has an interest in the adjudication of this case on its merits.
(iv) Balancing the Considerations
[72] After examining the factors outlined above, I conclude that the seriousness of the breach is significant and the impact of the breach on the accused is neutral. I recognize that the evidence is reliable and is crucial to the Crown's ability to prove the case beyond a reasonable doubt. However, when I balance all three factors, it is my view that the evidence should be excluded.
[73] I am very much aware that police officers on the street are required to make decisions quickly when they interact with the public. I acknowledge that both officers were exercising good proactive policing by quickly responding to the complainant's request for help. However, the end cannot justify the means. On the record of this case, the arrest of Mr. Grewal for domestic assault did not give the officers an open invitation to search his car.
[74] The balance must be struck in favour of exclusion. I have concluded that the court must dissociate itself from this deliberate violation of Charter rights.
[75] The application is therefore granted and the heroin seized from the search of the car is excluded from this trial pursuant to s. 24(2) of the Charter.
Coroza J.
Released: October 9, 2019