COURT FILE NO.: 17-G5554
DATE: 2019/12/11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Joseph Lomilo
BEFORE: Justice A. Doyle
COUNSEL: Zachary Horricks, Counsel for the Public Prosecution Service of Canada Joseph Addelman, Counsel for the Accused
HEARD: November 21 and 22, 2019
Ruling on CHARTER Application to exclude Evidence
[1] The accused, Mr. Joseph Lomilo, is charged with the following offences:
Possession of crack cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”);
Possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the CDSA; and
Possession of proceeds of crime; namely, money of a value not exceeding five thousand dollars, to wit $2,330.00, contrary to s. 354(1) of the Criminal Code, R.S.C. 1985, c. C-46 (“Criminal Code”).
[2] Mr. Lomilo has brought an Application alleging that his rights under ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms were violated and that evidence seized by the Ottawa Police Service (“OPS”) should be excluded pursuant to s. 24(2) of the Charter.
[3] The central issue in this Application is as to when Mr. Lomilo, a passenger, was legally detained. This Application turns on its facts and the evidence leading up to his detention and arrest.
[4] Counsel agreed to proceed by way of a blended trial and Charter Application. On consent, the evidence from the voir dire will form part of the trial proper.
[5] The defence has admitted:
Jurisdiction;
The Identity of the Accused;
The Report to Justice setting out the items seized;
The Continuity of the items seized; and
The Certificate of analysis identifying that the substances seized were phenacetin and cocaine.
Issues
[6] The subject of Mr. Lomilo’s Charter Application is specifically whether any of the following rights were violated:
The right not to be arbitrarily detained;
The right to be free from unlawful search and seizure;
The right to be promptly informed of the reasons for his detention or arrest; and
The right to retain and instruct counsel without delay and be informed of that right.
[7] In determining this Application, the Court will consider the following issues:
When was Mr. Lomilo detained?
Was Mr. Lomilo’s detention and subsequent arrest unlawful?
Was there a s. 8 breach?
Was there a s. 10 breach?
If there was a Charter violation, should the evidence be excluded under s. 24(2) of the Charter?
Analysis
Issue 1: When was Mr. Lomilo detained?
[8] The Court heard from the four officers who attended the scene of the arrest.
Officer Tardiff’s evidence
[9] Before 2:30 a.m. on October 7, 2017, OPS Patrol Constable Christine Tardiff, who was in uniform, was pumping gas into her marked cruiser at the gas station located at the corner of Montreal Road and Vanier Parkway. She observed a white Chrysler vehicle heading eastbound on Montreal Road stop at the red light at the intersection. It was first in line at the intersection and was in the inside lane; that is, the lane closest to the centre yellow line. Montreal Road in that vicinity is a four-lane road with two lanes going in each direction.
[10] She then observed a silver BMW, heading eastbound, pull up right beside the Chrysler vehicle and stop at the intersection.
[11] Officer Tardiff observed the BMW and Chrysler vehicles at the intersection and saw a passenger in the BMW seated on the window sill of the rear passenger window with his upper body outside the vehicle. He was putting on his hoodie while yelling at a passenger in the front seat of the Chrysler vehicle. She believed he had something in his hand but could not identify it. She recalled yelling “hey” at them. Both the BMW and Chrysler vehicles proceeded through the intersection when the light turned green. Officer Tardiff followed them as she was concerned that a passenger was not wearing a seatbelt and worried that this was a road rage incident.
[12] At 2:26 a.m. she radioed for assistance as there were two vehicles and multiple people.
[13] The BMW vehicle was driving in front of the Chrysler vehicle. Officer Tardiff maneuvered her vehicle between the two vehicles and then activated her siren and roof lights. She says that the Chrysler vehicle was already pulled over when she directed its driver to pull over. The Chrysler vehicle stopped behind her cruiser.
[14] She was stopping the BMW vehicle under the authority of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (“HTA”) as a passenger was not wearing a seat belt. Her intention was to issue a seat belt ticket and also to investigate the apparent road rage incident. She states that her focus was on the seat belt and public safety. She was also concerned with what the passenger in the BMW had in his hand when he was yelling at the passenger in the Chrysler vehicle. She was concerned that it was something dangerous.
Officer De Souza Lima’s evidence
[15] Constable Gustavo De Souza Lima had been in uniform with OPS for one year and was assisted by his coach, Constable Allan Galipeau, at the time of the incident. Officers Galipeau and De Souza Lima were in their marked cruiser when they heard the call from dispatch requesting assistance with two vehicles and multiple parties in a traffic stop. They were in the vicinity.
[16] Officers De Souza Lima and Galipeau arrived at the scene at 2:27 a.m. and parked behind the Chrysler vehicle. Officer De Souza Lima observed Officer Tardiff speaking to the driver of the BMW vehicle.
[17] Officer Galipeau approached the Chrysler to speak with its driver. It was their practice that he would speak to the driver and Officer De Souza Lima would go to the passenger side.
[18] Officer De Souza Lima was not told this was a road rage incident. He was only aware that an officer needed assistance and that two vehicles were involved. He understood that it was an issue of officer safety.
[19] Officer De Souza Lima used his flashlight to view the rear passenger seat as it was dark. He observed Mr. Lomilo holding a clear baggie in his hand but could not see its contents. The window was rolled up so he could not talk or engage with the passengers. He believed that Mr. Lomilo looked anxious and unsteady. A few seconds later, Mr. Lomilo bent forward, looking at his feet. He did not keep his hand steady on his lap and his hands were moving.
[20] Officer De Souza Lima was told by Officer Galipeau that the passenger had marijuana and to place him under arrest for possession.
[21] As the door was locked, Officer De Souza Lima tapped the window. When it was opened, he asked Mr. Lomilo to step out of the vehicle. At 2:32 a.m., he advised Mr. Lomilo that he was under arrest for possession and gave Mr. Lomilo his rights to counsel. He read Mr. Lomilo his rights using his duty book, which included the following: the reasons for the arrest, Mr. Lomilo’s right to contact a lawyer of his choice, and that if that person was unavailable, they would find him a duty counsel lawyer to speak with.
[22] He was brought to the sidewalk and placed in handcuffs. A quick search of his jacket and baggy pants disclosed 1,600 Canadian dollars, 100 American dollars, and a blackberry cellular phone.
Officer Galipeau’s evidence
[23] Officer Galipeau indicated that he arrived with Officer De Souza Lima at 2:27 a.m. He was his coach, and this was their last shift together. Officer Galipeau noticed the Chrysler vehicle behind the cruiser and was suspicious of its location. He was not sure why it was parked behind the cruiser. Normally, in a traffic stop, vehicles would travel up ahead and park in front of the cruiser and the subject vehicle.
[24] At 2:26 a.m., he had heard the dispatch call requesting assistance. When he and Officer De Souza Lima arrived, he noticed Officer Tardiff talking to the driver of the other vehicle that was located in front of the cruiser.
[25] He says he spoke to the driver of the Chrysler vehicle but does not recollect their discussion; he knew he was interested in the reason why it had stopped behind the cruiser.
[26] He says he smelled burnt marijuana in the car and then saw a passenger in the back seat “fussing with his hands.” That was Mr. Lomilo.
[27] Mr. Lomilo was also observed trying to put something down his pants. He also saw him moving a plastic bag from his left hand to his right hand.
[28] He saw an empty plastic bag with green markings. He indicated in his Investigative Action report that he believed that this type of baggie was consistent with those used to package drugs.
[29] He went over to the other side of the vehicle. Beside Mr. Lomilo he saw an open pouch. The pouch contained leaves and a green marijuana bud. He searched the back seat and found a large amount of Canadian currency. Mr. Lomilo never touched the pouch.
[30] At 2:30 a.m., he told Officer De Souza Lima to arrest Mr. Lomilo for possession of marijuana.
[31] He is a designated coach with the OPS. Not all officers are coaches. He took a course that teaches officers how to coach. As a coach he teaches officer safety, arrest procedures, and how to conduct oneself in various situations, including drug seizures and robbery calls.
Officer Muldoon’s evidence
[32] Officer Brodie Muldoon testified that he arrived at 2:33 a.m. to the scene. Since he was a more senior officer, he assisted Officer De Souza Lima with the search of Mr. Lomilo outside of the vehicle.
[33] He had been advised by Officer De Souza Lima that Mr. Lomilo was found with a Schedule II substance.
[34] He searched Mr. Lomilo’s waistline and pants and he found the following:
a health card;
a bag of white powder that he believed to be cocaine; and
a smaller bundle of rocks that he originally thought to be Methylenedioxyamphetamine (“MDA”) but was later found to be crack cocaine.
[35] He advised Officer De Souza Lima that he could re-arrest Mr. Lomilo on charges of cocaine possession and possession of proceeds of crime. Officer De Souza Lima did so at 2:37 a.m.
Defence Position
[36] The defence submits that motorists are legally required to stop their vehicles when requested to do so by police and by doing so they are “detained” for Charter purposes. See R. v. Mitchell, 2019 ONSC 2613, at para. 93.
[37] As stated in R. v. Ladouceur, 1990 108 (SCC), [1990] 1 S.C.R. 1257, at p. 1287:
Officers can stop persons only for legal reasons -- in this case reasons related to driving a car such as check the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds.
[38] In Brown v. Regional Municipality of Durham Police Service Board, 1998 7198 (ON CA), 43 O.R. (3d) 223 (C.A.), the Court of Appeal stated that there are strong policy reasons for invalidating a proper stop by the police where the police have an additional improper purpose.
[39] The defence submits that the Chrysler vehicle detention was not a traffic stop but rather part of a criminal investigation. The defence questions Officer Tardiff’s concern regarding a “suspicious” road rage incident. Officer Galipeau was not even aware of the reasons for the stop when he arrived on the scene and began investigating the Chrysler vehicle passengers.
[40] The defence submits there were no grounds to detain the Chrysler vehicle occupants, including Mr. Lomilo, and therefore his detention was arbitrary.
[41] The defence also submits that Mr. Lomilo was detained when Officer Tardiff signalled to the Chrysler vehicle to pull over behind her.
[42] The defence questions the credibility and reliability of the officers and what, if anything, Officer Galipeau could have seen in the rear of the Chrysler vehicle; that is, given the lighting and his position, the defence submits that Officer Galipeau could not have seen the contents of the pouch and the small marijuana bud therein.
[43] The defence submits that Officers Galipeau and DeSouza Lima’s evidence are contradictory, which detracts from their credibility.
[44] Finally, the defence submits that the detention and arrest of Mr. Lomilo was motivated by racial profiling.
Crown Position
[45] The Crown submits that Mr. Lomilo was not detained until his lawful arrest.
[46] It submits that not all interactions between the police and citizens result in a legal detention within the meaning of s. 9 of the Charter. According to R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, a detention requires “significant physical or psychological restraint.” The Court should consider all of the circumstances of the police encounter when making an assessment as to whether or not an individual has been detained.
[47] The officers did not engage with Mr. Lomilo until the moment that Officer Galipeau formed grounds for his arrest.
[48] The Ontario Court of Appeal in R. v. Harris (2007), 2007 ONCA 574, 87 O.R. (3d) 214 (C.A.) held that whether a passenger is detained in a vehicle that has been stopped is a fact-specific inquiry.
[49] There is no evidence of racial profiling. There was no cross-examination on this issue and no evidence on what impact, if any, Mr. Lomilo’s colour had on the officers’ conduct in this case.
Legal Principles
[50] Section 9 of the Charter provides the following:
- Everyone has the right not to be arbitrarily detained or imprisoned.
[51] The Supreme Court of Canada in Grant, at para. 20, explained that the purpose of s. 9 is “to protect individual liberty from unjustified state interference.” Citing R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, the Court further stated at para. 56 that for a detention to be non-arbitrary, it must be authorized by a law that itself is non-arbitrary.
[52] Mr. Lomilo has the burden of establishing when he was detained within in the meaning of s. 9 on the balance of probabilities. See: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 74.
[53] The general principle that determines when detention occurs for Charter purposes was set out in R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, at p. 644, where the Court stated that a person is detained where he or she “submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.”
[54] In other words, a person is detained when physically restrained by the police. Psychological restraint will also constitute detention. A person who complies with a police direction or command and reasonably believes that he or she has no choice but to comply with it is detained for the purposes of ss. 9 and 10 of the Charter. (See para. 17 of Harris.)
Decision
Introduction
[55] I will first give a brief introduction, make findings, and then apply the law to this case.
[56] For the reasons that follow, I find that Mr. Lomilo was detained when Officer Galipeau told him to stop what he was doing when he was in the back of the Chrysler vehicle.
[57] Secondly, I find that Officer Galipeau’s focus was questioning the driver of the Chrysler vehicle about why the car was parked where it was.
[58] Thirdly, I find that it was Mr. Lomilo’s own actions that attracted Officer Galipeau’s attention to him. There was no interaction or discussion between Officer Galipeau and Mr. Lomilo until Officer Galipeau told him stop “fussing with his hands”.
[59] Finally, it was Mr. Lomilo’s actions that caused Officer Galipeau to direct him to stop moving his hands, thereby resulting in a legal detention.
Traffic Stop
[60] It is noteworthy that the officers’ accounts of what occurred were consistent. There was a dispatch and back up officers arrived within minutes. Officer Tardiff was speaking to the BMW vehicle driver and she never spoke to anyone else. Officer Galipeau spoke to the driver of the Chrysler vehicle. Officer De Souza Lima was at the passenger side of the Chrysler and Officer Muldoon assisted Officer De Souza Lima with the bodily search of Mr. Lomilo.
[61] Firstly, I find that the Chrysler vehicle was detained for the purpose of a traffic investigation, not a criminal investigation.
[62] I find that Officer Tardiff gave her evidence in forthright and detailed manner. I accept that she was legitimately concerned with the two vehicles given what she observed at the intersection.
[63] She confirmed that her view of the vehicles at the intersection was not obstructed and that she was 100 feet from the intersection. She was concerned that the BMW vehicle would leave the intersection with the passenger on the window sill.
[64] Her account also included the detail that the BMW vehicle was stopped close to Hannah Street facing east on Montreal Road.
[65] I accept her evidence that she detained the BMW vehicle, she spoke to the BMW driver, and all occupants were told to leave the vehicle. They were searched, and the BMW vehicle was searched for weapons. Nothing was found.
[66] She was concerned about the Chrysler vehicle and it was to be investigated as well. If it had left, she would have broadcast for more help. She did not interact with anyone in the Chrysler vehicle.
[67] Her testimony was consistent on the reason for stopping the BMW and then directing the Chrysler to pull over. Her Investigative Action notes confirm that the Chrysler vehicle had already pulled over behind her when she signalled it to pull over. I find that her hand movement communicated to the driver of the Chrysler was a gesture that detained the Chrysler vehicle. She was concerned with public safety: as the passenger in the Chrysler vehicle was interacting with the BMW passenger, the BMW passenger looked like he was carrying something in his hand. It was not just a focus on one vehicle. This was a reasonable and proper highway traffic stop to complete an investigation of the BMW vehicle.
[68] She was consistent that she needed to know what was happening in the BMW vehicle.
[69] She was not shaken in cross-examination. Her testimony was credible. She radioed for extra units due to the number of people and vehicles involved. She did that as she initiated the traffic stop. She was interested in both vehicles.
[70] She also admitted when she did not remember details such as the lighting, what other individuals were in the vicinity, and exactly what she said on the call to dispatch. She did not guess on details that she did not remember or were not in her notes.
[71] I find that Officer Galipeau gave his evidence in a detailed and credible manner. His evidence was not shaken in cross-examination. He did not embellish his evidence and was consistent on what he saw in the back seat of the Chrysler vehicle. His evidence of the call from dispatch at 2:26 a.m., the arrival at 2:27 a.m. at the scene, and the location of the vehicles was consistent with the evidence of other officers.
[72] I accept that it was reasonable for him ask the driver of the Chrysler vehicle why he had stopped. His evidence was consistent on this point both in chief and in cross-examination: the reason for his inquiry was why the Chrysler was behind the cruiser. In Officer Galipeau’s view, the way the Chrysler was parked was unusual. I accept that he was gathering information from the driver as to why he was stopped. I accept that he had “heightened alertness” due to the location of the parked Chrysler vehicle.
[73] I therefore find that the purpose of the inquiry with the driver of the Chrysler vehicle was to ask questions regarding the traffic stop.
[74] Initially, Officer Galipeau had no interaction with Mr. Lomilo.
[75] The questions were focussed on why the driver was stopped. Officer Galipeau was not paying attention to Officer Tardiff’s actions and her involvement with the BMW vehicle.
[76] I accept his evidence regarding the details of the interaction with the occupants of the Chrysler. He was consistent in his evidence that within seconds of talking with the driver, he could smell the burnt marijuana and perfume or body spray. His Investigative Action notes mention the smell of burnt marijuana.
[77] Officer’s Galipeau’s focus was diverted due to Mr. Lomilo’s actions and movements: he was fussing with his hands and putting them down his pants. Those are actions that certainly alerted the officer and raised some concerns for him.
[78] He saw something being moved from Mr. Lomilo’s left hand to his right hand. He then saw Mr. Lomilo place his right hand on his right thigh. He saw that Mr. Lomilo had a clear plastic baggie with green markings on it in his right hand on his right thigh. He told Mr. Lomilo to stop moving.
[79] Officer Galipeau immediately moved to the right rear passenger side of the vehicle and shined his flashlight at Mr. Lomilo’s hands. He was concerned for his safety. He noticed a clear plastic bag with green marijuana leaf markings beside Mr. Lomilo. He then noticed a pouch with leaves and a green marijuana bud the size of a loonie. It was to the right of Mr. Lomilo’s right thigh. He did not see Mr. Lomilo touch the pouch.
[80] He immediately told Officer De Souza Lima to place Mr. Lomilo under arrest. He said about three minutes passed from the time he approached the driver of the vehicle until he told Officer De Souza Lima to place Mr. Lomilo under arrest. This evidence is consistent with Officer De Souza’s evidence that he was told to place him under arrest. Officer De Souza Lima says he arrested Mr. Lomilo at 2:32 a.m.
[81] I accept that Officer Galipeau was able to view the inside rear of the vehicle without a flashlight. He was standing at the vehicle by what he described as a “pillar”, which is at the driver’s side rear mirror. He had a view of the driver and the rear passenger. He says he was about three feet from Mr. Lomilo. His mode is to approach a vehicle from B pillar first (i.e. the window).
[82] He was also detailed in his description. I accept from his view he could see something being shifted from Mr. Lomilo’s left hand to right hand and then saw it on Mr. Lomilo’s right thigh. He admitted that the driver’s right shoulder and the right seat would have obstructed the view of Mr. Lomilo’s left side. That is why he moved to the passenger side. He was credible when he said he could see three quarters of Mr. Lomilo’s body.
[83] As will be discussed below, I find that Mr. Lomilo was detained when Officer Galipeau directed him not to “fuss” with his hands.
Application of the law to the facts
[84] It is a question of fact as to whether a passenger is detained. Officers De Souza Lima and Galipeau did not engage with Mr. Lomilo. There was no interaction nor discussion until grounds were formed to detain.
[85] In Harris, the accused was a passenger in a car when it was stopped by a police officer after the driver had failed to signal a left turn. Before stopping the car, the officer noticed that the accused was not wearing a seat belt. He told all the occupants to keep their hands visible and asked them to identify themselves. Upon checking their identification, the officer noted that the accused was in violation of a curfew condition of a bail order. He arrested him and found crack cocaine after a search incident to arrest.
[86] The Ontario Court of Appeal stated that whether a person is detained demands a fact-specific inquiry. At para. 21, Doherty J.A. declined to decide whether Harris as a passenger was detained when the vehicle was stopped.
[87] For the purposes of the appeal, the Court found the accused was detained when he was told by the officer to keep his hands in open view.
[88] Defence argues that no reasonable person in Mr. Lomilo’s shoes would have thought they could leave when the car was stopped. Defence submits that any reasonable passenger would have understood that the officers were exercising control to the point that no one in the car was free to depart without police permission.
[89] Of course, a traffic stop curtails a driver’s and passenger’s travel.
[90] However, there is a distinction between a traffic stop where the likely wrongdoing involves the driver and a criminal investigation where all occupants in the vehicle are implicated.
[91] In United States v. Martinez-Fuerte, 428 U.S. 543, the U.S. Supreme Court found that all passengers in vehicles are detained during a traffic stop. The Court found it is reasonable for passengers to expect that an officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize the officer’s safety.
[92] In Canada we have not gone that far. The Court of Appeal in Harris has not said a passenger is automatically detained when the car he is in has been stopped. The driver is who will be questioned. It is fact specific. Detention occurs when a passenger is told, “Don’t move your hands” (as in this case), or “Keep your hands in view” (as in Harris).
[93] In R. v. Johnson 2013 ONCA 177, [2013] O.J. No. 1308, the Ontario Court of Appeal referred to Harris, and stated at para. 30 “If a person obeys a police command on the basis that he or she believes there is no alternative, that person is detained for the purposes of ss. 9 and 10 of the Charter”.
[94] At para. 34 of Johnson, the Court reviews the cases that have stated that upon a Highway Traffic Act stop, the driver and the passengers are immediately and automatically detained. See Pinto, and R. v. J.R.M. [2005] O.J. No. 4708 while other cases have held that something more is needed before it can be said that a passenger is detained. See R. v. Frank 2012 ONSC 6274 and R. v. Bradley 2008 NSCA 57.
[95] As previously mentioned, in Harris the Ontario Court of Appeal declined to decide this issue, rather deciding the case based on the fact specific approach.
[96] In Johnson, the Court found that “view(ed) objectively, Johnson would reasonably believe that that he was not free to move his hands off the seat in front of him” after he was directed by the officer. “Johnson would reasonably believe he was not free to get out of the care and walk away”. (Para. 41)
[97] In R. v. Simpson (1993), 1993 3379 (ON CA), 12 O.R. (3d) 182 (C.A.), the Ontario Court of Appeal found that the purpose of the stop did not relate to the motor vehicle. The officer admitted that he was seeking confirmation of a report about a crack house and wanted to ask the occupants of the vehicle about drug related offences.
[98] The Court stated that while s. 216(1) of the Highway Traffic Act, R.S.O. 1990, C. H.8 permits an officer to stop a motor vehicle in the lawful execution of his or her duties and responsibilities, only stops made for the purpose of enforcing driving laws and promoting the safe use of motor vehicles are authorized by s. 216(1) of the Act, even where those stops are random.
[99] The Court held that this was not a stop under the HTA and hence not authorized by s. 216(1).
[100] The Court stated, at p. 199:
In deciding whether an interference with an individual's liberty is authorized under the common law, one must first decide whether the police were acting in the course of their duty when they effected that interference. In this case, Constable Wilkin indicated that he was investigating the possible commission of drug-related criminal offences at the suspected "crack house". While a police officer's stated purpose is not determinative when deciding whether the officer was acting in the course of his or her duty, there is no suggestion here that Constable Wilkin was not pursuing an investigation into the possible commission of drug-related crimes when he stopped and detained the appellant. The wide duties placed on police officers in relation to the prevention of crime and the enforcement of criminal laws encompass investigations to determine whether criminal activities are occurring at a particular location as well as efforts to substantiate police intelligence. I am satisfied that Constable Wilkin was engaged in the execution of his duty when he stopped and detained the appellant. The lawfulness of that conduct will depend on whether the stop and detention involved an unjustifiable use of the powers associated with Constable Wilkin's duty.
[101] This case is distinguishable from Mitchell. In that case, the driver of the vehicle was pulled over under the guise of the HTA violation for the purpose of a criminal investigation.
[102] In R. v. Humphrey, 2011 ONSC 3024, 237 C.R.R. (2d) 109, Code J. provides an overview of stops permitted by the police, at para. 79:
Section 216(1) of the Highway Traffic Act authorizes a police officer to stop a vehicle, even in the absence of any reasonable grounds to believe that an offence is being committed against the Act. Arbitrary stops pursuant to this statutory provision have been held to violate s. 9 of the Charter, but are nevertheless saved by s. 1 of the Charter, provided the officer’s true purposes for the arbitrary stop relate to enforcement of the Highway Traffic Act. In this regard, fixed road blocks can be used to stop entirely innocent drivers and random roving stops, without any articulable grounds, have also been held to be justified under s. 1 of the Charter, provided the police act on the basis of “reasons related to driving a car such as checking the driver’s license and insurance, the sobriety of the driver and the mechanical fitness of the vehicle”. In other words, the s. 1 justification for arbitrary H.T.A. stops depends on the officer’s subjective motivation, and not on the existence of objective grounds. See: R. v. Hufsky (1988), 1988 72 (SCC), 40 C.C.C. (3d) 398 at 406-7 and 409 (S.C.C.); R. v. Ladouceur (1990), 1990 108 (SCC), 56 C.C.C. (3d) 22 at 37 and 44 (S.C.C.); R. v. Mellenthin (1992), 1992 50 (SCC), 76 C.C.C. (3d) 481 at 487 and 490 (S.C.C.).
[103] In Ladouceur, Cory J. states at p. 1287:
Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds. Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s. 24(2) of the Charter.
[104] Therefore, I find that when Officer Galipeau told Mr. Lomilo to stop fussing, he was detained. He was under the command of the officer and, objectively, Mr. Lomilo would have thought he was not free to leave.
[105] Here, I found that Officer Tardiff had honest and legitimate reasons for stopping the BMW vehicle for two reasons: one passenger was not wearing a seat belt, and the previous interaction between that passenger and an occupant of the Chrysler vehicle had indicia of road rage.
[106] I also accept that whether she motioned to the Chrysler vehicle to pull over or whether it had already pulled over, she had honest and legitimate reasons to ensure that the Chrysler vehicle was also pulled over.
[107] Here, Officer Galipeau was questioning the Chrysler vehicle parked behind the cruiser. I accept that he was speaking to the driver to gather information about what had happened. He had not received information from Officer Tardiff that there was a possible incident of road rage.
[108] Officer Galipeau’s stop was not a random stop; it was one directly related to a call from an officer who said there were two vehicles, multiple occupants, and that she needed help. However, it was not a stop where he observed the Chrysler driver commit an offence. He had no conversation with Officer Tardiff to gain information about the reason for the involvement of the Chrysler.
[109] He stated that he did not know the reasons for the stop and that if a passenger had exited the vehicle he would have let him go. He also said he would have asked Officer Tardiff for more information as to whether there was an issue with this passenger.
[110] He would not have detained Mr. Lomilo.
[111] In those circumstances, pursuant to s. 216(1) of the HTA, he was entitled to do what he did without articulable grounds. He was checking the reason the vehicle was stopped behind the cruiser, which was related to driving and road safety.
[112] I find that his questions to the driver were related to driving. However, circumstances quickly changed when Mr. Lomilo exhibited behaviour that called for more intrusive procedures.
[113] Given the circumstances of this case, I do not find that Mr. Lomilo was detained until he was directed by Officer Galipeau not to move. Up until that point, he was free to go if he did not want to stay.
There was no racial profiling
[114] I do not find that there is any evidence that Mr. Lomilo was detained and arrested due to the colour of his skin. This allegation was raised for the first time during final submissions.
[115] Without question, racial profiling has no role to play in policing.
[116] This is not a case about profiling in policing.
[117] Although there are various reports in the media of racial profiling in law enforcement, it does not mean that just because the accused is a visible minority that he was the target of racial profiling. Our courts make decisions based on the evidence before them.
[118] This Application is about Mr. Lomilo and what happened to him in the early morning hours of October 7, 2017.
[119] This issue was not explored in the cross-examination of the officers. In fact, Officer Galipeau could not remember the colour of the Chrysler vehicle driver. There was no evidence led suggesting that the officers involved in this incident targeted Mr. Lomilo because he was black.
[120] There is absolutely no evidence in this case that racial profiling occurred.
[121] An allegation of racial profiling is serious. In this case, it was not warranted.
Conclusion
[122] The detention occurred when Officer Galipeau told Mr. Lomilo to stop what he was doing. A person who complies with a police direction or command reasonably believing that he or she has no choice is detained for the purposes of ss. 9 and 10 of the Charter. (See para. 17 of Harris.) There was such a command by an officer and, in my view, Mr. Lomilo was psychologically detained within the meaning of Suberu.
Issue 2: Was Mr. Lomilo’s detention and subsequent arrest unlawful?
Defence Position
[123] The defence submits that a warrantless search is prima facie unreasonable. Here, the search included questioning and a vehicle inspection with a flashlight prior to arrest. The defence submits that the inspection of the vehicle with the flashlight, the search of the backseat, and the subsequent search incident to arrest violated Mr. Lomilo’s s. 8 rights.
[124] The defence submits that Mr. Lomilo’s arrest was unlawful and that and his s. 9 Charter rights were violated.
[125] The defence submits that the mere fact that Mr. Lomilo was fidgety and holding a plastic bag does not provide grounds to search the back seat.
Crown Position
[126] The Crown submits that shining a flashlight into a vehicle did not violate Mr. Lomilo’s s. 8 Charter rights as there is a reduced expectation of privacy in a vehicle.
[127] In Hufsky, the Supreme Court of Canada held that visually inspecting the interior of a car with a flashlight during a lawful traffic stop is not a s. 8 breach.
[128] In R. v. Lotozky (2006), 2006 21041 (ON CA), 81 O.R. (3d) 335 (C.A.), the Ontario Court of Appeal stated at para. 13 that “it seems that merely peering into a car window at night with the aid of a flashlight on a public highway is not a search”.
[129] In R. v. Mohamed, [2008] O.J. No. 3145 (S.C.), the Court found that looking through car windows in a public parking area at night a flashlight does not engage s. 8 of the Charter. In that case, what was seen was in plain view and clearly observable from outside the car.
[130] In R. v. Daley, 2015 ONSC 7367, Fairburn J. (as she then was) following Suberu, reiterated at para. 8 that an accused who argues they have been arbitrarily detained in contravention of s. 9 of the Charter bears the onus of establishing the alleged breaches on a balance of probabilities. If a breach is established, the accused bears the further onus of demonstrating that evidence should be excluded (at para. 11). The accused must prove on balance of probabilities, having regard to all of the circumstances, that admitting the evidence would bring the administration of justice into disrepute (at para. 11).
[131] The Crown must show that there were reasonable grounds to arrest an accused. To discharge its onus, the Crown relies on s. 495(1) of the Criminal Code, which provides that an officer may arrest without a warrant if he has reasonable grounds to believe that the accused has committed an indictable offence. The case law has described this onus as “reasonable and probable grounds” which is the standard that police may rely on to compromise an individual’s liberty and expectation of privacy. (See para. 26 of R. v. Denovan (6 April 6 2017), Ottawa, (Ont. C.J.) per Paciocco J. (as he then was).)
[132] This standard has objective and subjective components. The officer must subjectively have an honest belief that the accused committed an offence. He must also have reasonable grounds for that belief when it was formed. The objective analysis requires the Court to determine whether the police officer’s opinion was supported by the facts, viewed objectively. The decision to arrest is often made in a fluid situation when events are occurring quickly without the luxury of hindsight and ample reflection. The officer’s decision is made on the available information based on the officer’s perception of facts. (See R. v. Mackenzie, 2013 SCC 50, [2013] S.C.R. 250, at para. 62.) When evaluating whether grounds existed, a reasonable person’s perspective is that of the officer at the time, armed with information understood by the officer and the benefit of what he has learned from training and experience. “[A] fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police”. (See Mackenzie, at para. 62.)
[133] In R. v. Hardy, 2015 MBCA 51, 325 C.C.C. (3d) 50, the Manitoba Court of Appeal dismissed an appeal from the decision of a trial judge who held that the accused bore the burden of establishing a breach of s. 9 of the Charter. In that case, the accused failed to do so. The Court confirmed that the trial judge was correct in placing the onus on the accused to show that his detention was arbitrary. The Court stated at para. 4 that in certain circumstances the Crown’s burden may become engaged during the course of a s. 9 Charter application, though the ultimate burden remains with the accused.
[134] In R. v. Davidson, 2010 ONSC 1508, 75 C.R. (6th) 56, at para. 56, Wilson J. confirmed that the onus is upon the accused to prove a Charter breach and referred to Collins. In speaking to the determination of whether a s. 9 violation occurred, at para. 56, Wilson J. clarified that “the applicant must demonstrate on a balance of probabilities that he or she was detained.” If a detention is established, the Crown must then satisfy the Court on a balance of probabilities that it was not arbitrary and in violation of the Charter (at para. 56). To do so, Wilson J., relied on the Ontario Court of Appeal’s decision in Simpson. At para. 60, Wilson J. states:
In order to show that a detention was not arbitrary, the Crown must show that the police had reasonable grounds to suspect that the individual in question was criminally implicated in the activity being investigated, based on a constellation of objectively discernible facts.
[135] In Simpson, the Ontario Court of Appeal stated, at pp. 199-200 O.R.:
The reasons of Le Dain J. in Dedman, supra, at pp. 35-36 S.C.R., pp. 121-22 C.C.C., indicate that the justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference. This "totality of the circumstances" approach is similar to that found in the American jurisprudence referrable to the constitutionality of investigative stops: United States v. Cortez, 449 U.S. 411 at pp. 417-18, 101 S.Ct. 690 (1981); Alabama v. White, 110 S. Ct. 2412 (1990) at p. 2416; and in the Canadian case law relating to s. 8 of the Charter: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at pp. 1454-55, 60 C.C.C. (3d) 161 at pp. 189-90.
Analysis
[136] For the reasons that follow, I find that the police had reasonable and probable grounds to make an arrest and the detention of Mr. Lomilo was not arbitrary.
[137] Mr. Lomilo must satisfy the Court, on a balance of probabilities, that his s. 9 rights were violated.
[138] As stated above, I have found that stopping the Chrysler vehicle was lawful.
[139] The use of the flashlight to illuminate its occupants did not encroach on their expectation of privacy.
[140] The parameters of police search powers is set out at para. 13 in Lotozky, where the Court of Appeal for Ontario stated:
The breadth of police activity found to constitute a search demonstrates the reach of the s. 8 protections. In Evans, the police activity consisted of no more than approaching the door of the accused's residence and knocking with the intent of sniffing for marijuana when the occupant opened the door. In R. v. Kokesch, 1990 55 (SCC), [1990] 3 S.C.R. 3, [1990] S.C.J. No. 117, 61 C.C.C. (3d) 207, the Crown conceded that the police activity in going on to private property to peer into windows and attempt to detect the odour of marijuana, constituting a so-called perimeter search, was a search within s. 8. There are, however, some limits. It seems that merely peering into a car window at night with the aid of a flashlight on a public highway is not a search. See R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615, [1992] S.C.J. No. 100, 76 C.C.C. (3d) 481, at pp. 486-87 C.C.C. Admittedly, it is unclear whether the conduct in Mellenthin was not a search because there was no reasonable expectation of privacy or because the interference or intrusion was not sufficiently invasive.
[141] Further, I find that there was a lawful arrest as there were reasonable and probable grounds to make the arrest given Constable Galipeau’s experience and what he could see; namely:
Mr. Lomilo was moving his hands;
Mr. Lomilo was putting something in his pants;
He was moving a baggie from his left hand to his right hand; and
There was a smell of burnt marijuana emanating from the car, which suggested recent consumption.
[142] After he moved to the right side of the vehicle, he was able to confirm that the empty baggie had a marijuana leaf on it and that there was a pouch beside Mr. Lomilo containing a marijuana bud.
[143] Officer Galipeau had nine years’ experience with the OPS at the time. He had spent most of his time in Vanier (the place of this incident and an area which he says has “a high crime rate”) and had experience in low-level drug cases. He was very familiar with the smell of fresh and burnt cannabis. He was trained to detect the smell of cannabis and part of his training at police college included viewing cannabis in various states. He had experience seizing numerous drugs including cocaine, crack cocaine, and fentanyl.
[144] Given his experience and training, I accept that he knew what he saw. He understood that the markings on the outside of the pouch identified the flavour of the marijuana. The bag was a couple of inches from Mr. Lomilo’s legs. He was detailed when describing the angle. He believed that he was fussing with his hands because he was placing the bud in the pouch.
[145] I also accept Officer Galipeau’s evidence that he moved to the passenger side of the Chrysler vehicle to obtain a better view of Mr. Lomilo’s right hand and that he had seen him hold a plastic bag. Officer De Souza Lima testified that he did not recall Officer Galipeau doing that. I accept Officer Galipeau’s evidence over Officer De Souza Lima’s evidence for the following reasons:
Officer Galipeau provided a detailed account of his observations of Mr. Lomilo and the location of the pouch;
Officer Galipeau’s movement to the passenger side to get a better view is consistent with his account of events; and
Officer De Souza Lima was relatively inexperienced at the time. His notes lack detail. He was under the authority of Officers Galipeau and Muldoon at the time.
[146] I have found that Mr. Lomilo was detained when he was told to stop what he was doing. Immediately thereafter, Officer Galipeau moved over to the passenger side of the Chrysler vehicle and saw the leather pouch. He then told Officer De Souza Lima to make the arrest.
[147] Officer Galipeau made the following observations of Mr. Lomilo:
He smelled burnt marijuana in the car, which suggested recent consumption;
He saw Mr. Lomilo in the back fidgeting with his hands;
He saw him trying to put something down his pants;
Mr. Lomilo was alone in the back seat and there was marijuana and small baggies in close proximity to him; and
He observed Mr. Lomilo moving a baggie from his left hand to his right hand in an effort to conceal something.
[148] When Officer Galipeau promptly went to the passenger side of the vehicle and shone a flashlight into the rear of the vehicle towards Mr. Lomilo’s hands, he saw a pouch open with a marijuana bud in it.
[149] Taken together, these facts satisfy the Court that Officer Galipeau had reasonable and probable grounds to instruct Officer De Souza Lima to arrest Mr Lomilo for possession of a Schedule II substance.
Issue 3: Was there a s. 8 breach?
[150] Section 8 of the Charter provides protection from unreasonable search and seizure.
[151] A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable: Collins, at p. 278. Absent a warrant, a police search or seizure is presumed to be unreasonable: Collins. It is the Crown’s burden to prove that a warrantless search was reasonable.
[152] In Caslake, the Supreme Court stated that a warrantless search of a car incident to the arrest of its driver is lawful if the objective is to search for evidence logically connected to the reason for the arrest. There is no requirement that the police may do so only when obtaining a warrant as this would be impractical.
[153] In that case, the Court found that the search of the vehicle was incident to arrest. The officers believed that the search of the vehicle would produce evidence relating to identification, the registration plates in the other individual’s name, or the purchase of the car. The search was logically connected to the accused’s arrest for possession of property obtained by crime.
[154] As stated in R. v. Lubansa, 2016 ONCJ 235, a warrantless search of a motor vehicle incident to arrest can be justified even if the police could have obtained a warrant.
Decision
[155] Given that the Court has found that the arrest was lawful, the search incident to arrest of Mr. Lomilo was also lawful.
[156] The warrantless search of the Applicant was in accordance with the common law doctrine of “search incident to arrest.”
[157] As stated in Caslake, the legality of a search incident to an arrest is derived from the legality of the arrest itself.
[158] Therefore, the warrantless search was authorized in accordance with the police power of search incident to arrest. I also find that the search incident to arrest was lawful. The arrest was for illegal drugs and it was reasonable for them to search the accused and the vehicle for drugs.
[159] As stated in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 75, the common law power to search incident to arrest allows the police to guarantee the safety of the police, and the accused, to prevent escape, and to obtain evidence against the accused.
Issue 4: Was there a s. 10 breach?
Defence Position
[160] The defence submits that Officer Galipeau should have advised Mr. Lomilo of his rights as soon as the officer’s attention was drawn to his purported fidgeting. The defence relies on Suberu, where the Supreme Court of Canada stated that “without delay” means “immediately”: para 41. This is so that accused persons are not placed in legal jeopardy and to mitigate the legal disadvantage of the accused in such situations.
Crown Position
[161] The Crown submits that there was no delay in informing Mr. Lomilo of his rights to counsel and he was provided an opportunity to exercise those rights. It was reasonable for the police to complete the initial search prior to giving the accused an opportunity to speak with a lawyer.
[162] The Crown submits that to require the police to advise Mr. Lomilo of his rights the moment Officer Galipeau noticed him fidgeting would not only hamper their investigation, but put their lives in danger.
Legal Principles
[163] The Supreme Court in Suberu stated that, barring exigent circumstances, s. 10(a) and (b) of the Charter require that a detained person be advised of the reason for their detention and be informed of their right to counsel.
[164] The right to counsel obligates arresting officer to inform detained persons of their right to counsel and facilitate its exercise, if requested, before any information is gathered from the person, absent any exigent circumstances.
[165] “Without delay” means “immediately” and “at first reasonable opportunity.”
[166] Since a detained person is in legal jeopardy, the right to counsel is important to an individual to ensure that they do not incriminate themselves or compromise themselves without the benefit of speaking to counsel.
[167] At para. 41, the Court in Suberu stated the following:
A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase “without delay” must be interpreted as “immediately”. If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.
[168] In Suberu, at para. 2, the Supreme Court of Canada found that an accused’s right to be advised of the right to counsel under s. 10(b) of the Charter is engaged at the moment they are detained. However, not every interaction with the police will amount to a detention for the purposes of the Charter, and s. 9 of the Charter does not require that police abstain from interacting with the public until they have specific ground to connect an individual to a crime (at para. 23).
[169] At para. 25, the Court in Suberu lays out the principles from Grant; that is, whether the purposive approach demanded under ss. 9 and 10 of the Charter refers to the suspension of the liberty of an individual by a significant physical or psychological restraint. The Supreme Court of Canada held that the onus is on the applicant to show that he or she was effectively deprived of his or her liberty of choice (Suberu, at para. 28).
Analysis
[170] As stated at para. 70 of R. v. Ashby, 2013 BCCA 334, 5 C.R. (7th) 173, there are caveats to the “without delay” requirement. As stated in Suberu, safety concerns can excuse immediate compliance.
[171] I find that there was a momentary delay from Mr. Lomilo’s detention to the time that Officer Galipeau went to the other side of the vehicle and observed the marijuana bud in the pouch. He said it was a matter of three minutes. He arrived at the scene at 2:27 a.m.
[172] Officer De Souza Lima’s evidence is that he placed Mr. Lomilo under arrest and gave him his s. 10 rights at 2:32 a.m.
[173] I find that a delay of 3 minutes to 5 minutes to provide Mr. Lomilo with his rights under s. 10 of the Charter was not a violation.
[174] It is clear from the case law that Officer Galipeau telling Officer DeSouza Lima to make the arrest is sufficient. In R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1167, the Supreme Court held that an officer can act on the instructions of another officer who has the reasonable and probable grounds. These situations are dynamic and a full briefing is not always possible.
[175] Therefore, I find that there was no violation of Mr. Lomilo’s s. 10 rights.
[176] In the event that I am wrong and that Mr. Lomilo’s s. 10 rights were violated, I would conclude that the evidence should not be excluded under s. 24(2) of the Charter.
Issue 5: If there was a Charter violation, should the evidence be excluded under s. 24(2) of the Charter?
Legal Principles
[177] In Grant, the Court outlined three lines of inquiry when determining whether evidence should be excluded:
The seriousness of the Charter-infringing state of conduct: In this analysis, the Court must concern itself as to whether the police acted in a willful way with a complete and deliberate disregard for Charter rights. The more deliberate the conduct, the more the Court will seek to dissociate itself from it. If there is good faith, however misguided, the need for the Court to dissociate itself is not as great. Unfamiliarity with the law, negligence, or willful blindness is not good faith: see para. 75 of Grant.
The impact of the breach on the accused’s Charter-protected interests: As stated in para. 76 of Grant, this inquiry “calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.” At para. 77, Grant says, “To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests.”
Society’s interest in adjudication of the case on its merits: At para. 79 of Grant, the Supreme Court states that “this inquiry reflects society’s collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law”. The Court suggested in Collins that a judge on s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but also the impact of failing to admit the evidence.
[178] Other considerations include truth-seeking and whether the exclusion of evidence will end the prosecution: R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212. “Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system”: Grant, at para. 84.
[179] Finally, the Grant decision directs judges to weigh the various indications and holds that there is no overarching rule that governs how the balance will be struck: para. 86.
Analysis
- Seriousness of the Charter infringing state conduct
[180] Officer Galipeau told Officer De Souza Lima to arrest Mr. Lomilo at 2:32 a.m. In the meantime, Officer De Souza Lima moved to the passenger side to compete his initial search.
[181] From 2:32 a.m. to 2:37 a.m., Mr. Lomilo’s person was searched. I do not find that the delay in providing Mr. Lomilo his rights was serious enough to warrant exclusion.
[182] The Court must determine whether the initial breach was done in good faith, bad faith, or whether there was negligence or wilful blindness.
[183] I find Officer Galipeau acted in good faith. He moved to a position to get a better view of Mr. Lomilo to ensure not only his own safety but to solidify what he saw.
[184] That is when he observed the pouch on the seat beside Mr Lomilo. He shone his light into the open pouch, saw light brown tobacco leaves and a green bud of marijuana. He was familiar with these types of bags as it contained gray or aluminum type inside to preserve the contents.
[185] After he saw the tobacco pouch, he believed that he had grounds to arrest Mr. Lomilo for possession of a Schedule II substance. He confirmed that he had told Officer De Souza Lima to arrest Mr. Lomilo.
[186] I find that the situation was fluid and there was a delay of several minutes in advising Mr. Lomilo of his rights. It was not in bad faith, negligence, or wilful blindness. Everything was happening quickly. It was more of an inadvertent breach resulting from the quick unfolding of events.
[187] This breach falls on the less serious side of the fault spectrum and does not militate toward exclusion.
- Impact of the breach
[188] As stated above, this line of inquiry is about sending the right message to ensure that the public is aware that Charter rights count. Like police conduct in the first prong, the impact of Charter breaches fall on a continuum from “fleeting and technical to profoundly intrusive”: para. 76 of Grant.
[189] An individual’s right to be informed promptly of their right to counsel is an important right that the public would expect the police to comply with. As previously indicated, it is serious in the spectrum but was not in bad faith, as the officer wished to move to the other side to complete his initial search. There was no bad faith or negligence, and this inquiry does not militate towards exclusion of the evidence.
- Society’s interest in adjudication of the case on its merit
[190] This line of inquiry usually favours inclusion of the evidence as the public does have an interest in the adjudication of the matter on its merits. The exclusion of the evidence in this matter would prevent the prosecution from proceeding on a number of the charges facing the Applicant.
Decision
[191] Finally, the Court must balance all the above factors.
[192] The Supreme Court of Canada’s short endorsement allowed an appeal in R. v. Omar, 2019 SCC 32, where the Court, in a 4-3 split, adopted the dissenting reasons of Brown J.A. of the Ontario Court of Appeal.
[193] Brown J.A. would have dismissed the appeal from the trial decision. He agreed with the trial judge’s s. 24(2) analysis and her decision to include the evidence. Brown J.A. found that the legal principles set out in Grant were not clear to those on the streets and, therefore, the finding of good faith by the trial judge was not an error.
[194] Brown J.A. agreed that the officers had a subjective belief that they were not detaining Mr. Omar. Their conduct was not abusive, the Charter breach was not deliberate, and the law is not always clear about at what point an encounter with police turns into a psychological detention.
[195] As stated above, having regard to the three lines of inquiry and the balancing, I do not find that, if there were violations of the Applicant’s s. 10(a) and (b) Charter rights, they were not serious enough to warrant exclusion. I find that Officers Galipeau and De Souza Lima acted in good faith in completing the initial search before Officer De Souza Lima was directed to arrest Mr. Lomilo and provide him with the caution.
[196] Therefore, I would not exclude the evidence under 24(2) of the Charter.
[197] Accordingly, the Application is dismissed.
Justice A. Doyle
Date: December 11, 2019
COURT FILE NO.: 17-G5554
DATE: 2019/12/11
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen v. Joseph Lomilo
BEFORE: Justice A. Doyle
COUNSEL: Zachary Horricks, Counsel for the Public Prosecution Service of Canada Joseph Adelman, Counsel for the Accused
RULING ON CHARTER APPLICATION TO EXCLUDE EVIDENCE
Justice A. Doyle
Released: December 11, 2019