Court File and Parties
Court File No.: CRIMJ(P)980/18 Date: 2020-03-09 Ontario Superior Court of Justice
Between: Her Majesty The Queen J. Prenger, for the Crown
- and –
Jonathan Williams A. Romain for the defendant
Heard: December 10, 2019
Admissibility Ruling
D.E Harris J.
[1] These are my reasons explaining why I excluded Crown tendered evidence at the end of a pre-trial voir dire. Unfortunately, before the jury began hearing evidence, a mistrial had to be declared. The reasons for the mistrial are explained in R. v. Williams, 2019 ONSC 7525.
[2] Mr. Williams is charged with Criminal Code offences under Section 286.3 (financially benefitting from another’s sexual services) Section 286.2 (exercising influence over the movements of a person providing sexual services for consideration), Section 286.4 (advertising sexual services) and Section 264.1 (threatening).
[3] On January 31, 2016, at 3:57 a.m., Constable Murphy of the Waterloo police stopped a Dodge Ram driven by Ms. B., the female complainant in this case. His notes of what was a routine traffic stop were sparse. However, he recorded his recollections in two recent will states, one in March of 2019, and the second one, a few weeks later. These were written more than three years after the fact.
[4] Cst. Murphy testified that just after stopping another vehicle, he saw a Ram pick-up truck drive by without its lights on. He vacated the first stop, pursued the Ram, and stopped it. The defence argued that this explanation was false; there was no good reason to stop the vehicle. Although I am suspicious of Cst. Murphy’s motivations particularly in light of the stop being in the immediate vicinity of a notorious motel and the admission that he had CPIC’d the Ram sometime previously in the parking lot of this motel, I cannot say the defence has satisfied its burden to demonstrate an arbitrary stop under Section 9 of the Canadian Charter of Rights and Freedoms.
[5] After conversing with the complainant in the driver’s seat, Cst. Murphy ascertained that she was sober. She supplied her driver’s licence and insurance. She was cooperative throughout.
[6] Cst. Murphy testified that he also questioned the passenger—the accused Williams-- writing down his name, date of birth and address. This information appears in his notebook. Ultimately, Cst. Murphy ran a CPIC check on Mr. Williams but did not receive back any pertinent results.
[7] The Crown intended to call Cst. Murphy’s evidence of the complainant and the accused together to aid in proof of their case.
[8] With respect to his interaction with Mr. Williams, in his first will-say, Cst. Murphy stated that he was unsure whether Mr. Williams identified himself verbally or with his driver’s licence. The officer also said that the information or licence was provided “voluntarily [as] I recognize that the law does not allow me to compel a passenger to identify themselves.” He did not “threaten, coerce or induce” Mr. Williams to identify himself.
[9] In the second will-say, after not mentioning it in his notes or first will-say, Cst. Murphy stated that he vaguely remembered asking the passenger, Mr. Williams, if he was the registered owner of the vehicle. Cst. Murphy, before he approached, knew from his computer check of the licence plate that the registered owner was a male, albeit much older than Mr. Williams.
[10] When he assumed the witness stand, Cst. Murphy’s vague recollection about asking Mr. Williams whether he was the registered owner had now morphed into a virtual certainty that he had asked him this question. This was a normal practice of his if the driver was not the registered owner. In addition, Cst. Murphy was now quite sure that Mr. Williams identified himself verbally rather than with identification. He would have swiped the identification if he was in possession of it. The computer records showed that he had not done so.
Section 8 Was Violated
[11] The Crown concedes that running a computer check to investigate Mr. Williams, the passenger in the vehicle, was a breach of his Charter rights.
[12] The Ontario Court of Appeal’s judgment in R. v. Harris, 2007 ONCA 574, 225 C.C.C. (3d) 193, contrary to the Crown’s argument, suggests that the Charter breach predated the computer check and occurred when Mr. Williams was asked to identify himself.
[13] There are two possible qualifications which could take this case outside the authority of Harris. First, if Cst. Murphy asked the passenger Williams whether he was the registered owner and he had a legitimate purpose for doing so, it could be argued that there was no breach. The Crown did not strenuously advance this argument and, in any case, I would not give effect to it. I reject, given that it was not in his notes or first will-say, that Cst. Murphy ever asked this question. The absence of reference to it in the first will-say or in his notes convincingly contradicts Cst. Murphy’s second will-say and testimonial evidence. The gradual progression in his testimony to firm up this evidence does not enhance the officer’s credibility. Furthermore, it is quite impossible that he could have remembered this minute detail over three years after the fact.
[14] It would make sense to have asked the driver who the registered owner was, not the passenger. In fact, the owner was Ms. B.’s father. Lastly, asking the passenger whether they were the owner, at least in these circumstances, could not justify gathering the passenger’s date of birth or address, as Cst. Murphy did.
[15] I also reject Cst. Murphy’s evidence that Mr. Williams supplied his name, date of birth and address “voluntarily” and that he did nothing to coerce or induce the responses. The response to the officer’s question was not voluntary nor did it constitute a waiver of the right to be free from unreasonable search or seizure. Like anyone else, Mr. Williams would have felt compelled to answer police officer questions. He had no practical choice: R. v. Therens, [1985] 1 S.C.R. 613, 18 D.L.R. (4th) 655 at para. 53.
[16] Having dispensed with these issues, it can be said with confidence that this case is indistinguishable from Justice Doherty’s majority opinion in Harris: also see R. v. Mhlongo, 2017 ONCA 562, 355 C.C.C. (3d) 1 at paras. 51-53.
[17] In Harris, the Section 8 breach was found to originate from the point of the initial questioning of the car’s passenger, Harris. The same is true in this case. While it was concluded that Harris was detained because the officer asked him to keep his hands in clear view, the law has since evolved to make it clear that even without this element, Williams was psychologically detained, at least by the time he was asked for his identification: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras. 28-33.
[18] In Harris, as in the current situation, there was no reason to suspect the passenger of anything. The investigating officer was simply taking advantage of the vehicle stop to conduct a trolling, opportunistic investigation. The questioning in this case was the same; the purpose was the same. The reasons of Justice Doherty are on all fours with what happened here:
39 … Lipkus had a very specific purpose in mind when he asked for identification. He intended to use that identification to access a wealth of personal information about Harris before allowing Harris to proceed on his way…
40 A person under police detention who is being asked to incriminate himself has more than a reasonable expectation of privacy with respect to the answers to any questions that are put to him by the police. That person has a right to silence unless he or she makes an informed decision to waive that right and provide the requested information to the police: R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.). In the circumstances, Harris’s identification in response to the officer’s question constitutes a seizure and attracts s. 8 protection. [footnote omitted]
41 The seizure was unreasonable. As in Mellenthin, Lipkus had no reason to suspect Harris of anything when he questioned him and requested his identification. The purpose for the stop and the consequential detention of Harris and the other occupants of the vehicle had nothing to do with the request for Harris’s identification. The purpose of the stop did not justify an at large inquiry into Harris’s background or his status in the criminal justice system. That was the effect of the request for identification. Just as in Mellenthin, Lipkus expanded a Highway Traffic Act stop into a broader and unrelated inquiry. Harris’s identification of himself provided the entrée into that broader and unrelated inquiry.
[19] The questioning in this case was for a criminal investigatory purpose and violated Mr. Williams right to silence. It constituted an unreasonable seizure in the same sense as in Harris.
Section 24(2) Requires Exclusion
[20] After giving his name, CPIC information revealed that Harris was out after curfew. After arrest and search, drugs were found. In Harris, the drug evidence was not excluded.
[21] There are several fundamental differences in this scenario which mandate a different result.
[22] The judgment in Harris was pre-Grant. The crack cocaine seized in Harris was real evidence under the R. v. Collins, (1987), 33 C.C.C. (3d) 1 (S.C.C.) rubric and was presumptively admissible. The evidence here is Mr. Williams’ statement which, under Collins, would have been presumptively inadmissible. Under the Grant framework, the treatment of statements—because of their self-incriminating nature--has not changed significantly. They “tend to be excluded”: Grant at paras. 89-98.
[23] In Harris, the evidence could have been discovered by other means. Harris was not wearing a seatbelt. This was the decisive factor Justice Doherty relied upon not to exclude the evidence: Harris at paras. 64-69. On the other hand, the evidence in this case was created by the breach itself, it did not exist before, it could not have been discovered by other means. It was self-incriminating, conscriptive evidence.
[24] Examining the seriousness of the breach under the first branch of Grant, although Cst. Murphy said that he no longer investigates passengers the way he did here, it is to be observed that at the time in 2016 when he asked Mr. Williams to identify himself, the practice had been prohibited since the release of Harris, 9 years before. Cst. Murphy ought to have known he could not do what he did. Along the spectrum of police conduct, this breach was towards the more serious end, much more serious than in Harris itself: see Harris, paras. 61-62; R. v. MacMillan, 2019 ONSC 3560 at para. 54.
[25] Cst. Murphy admitted that every chance he got he would input individual’s names into the computer to see what he could discover about them. Earlier in the night, he had done exactly this with two individuals he found outside a closed Bank of Montreal branch. This evidence demonstrates a pattern of reaching beyond the legal bounds of his powers. The effect on third parties of a similar breach as a result of the same erroneous police methodology is within the purview of Section 24(2) and increases the seriousness of the breach: see R. v. Thompson, [1990] 2 S.C.R. 1111, [1990] S.C.J. No. 104 at paras. 112-119.
[26] There are several other aspects of Cst. Murphy’s evidence which cause concern. i. The idea that Cst. Murphy questioned Mr. Williams only because he wanted to ascertain whether he was the registered owner, a notion I have rejected, appears to be an ex post facto attempt to avert a finding of a Charter breach. The progression from no memory in the notes and first will-say, to a vague recollection in the second will-say, to steadfast certainty on the witness stand, demonstrates a lackadaisical regard for the truth. ii. The other part of Cst. Murphy’s evidence which strains credulity past the breaking point is his assertion that if Mr. Williams had fled the vehicle after it was stopped, he would not have pursued him. This evidence was presumably in the misguided, legally incorrect service of the proposition that Mr. Williams was not detained. I reject this evidence. Cst. Murphy was an officer who prided himself on his exhaustive investigations. There is little chance that Cst. Murphy would have allowed Mr. Williams to flee the scene, nor would any reasonable police officer.
[27] Misleading police evidence contributes to the seriousness of the breach and tends to augment the court’s need to disassociate itself from improper police conduct: R. v. Harrison, 2009 SCC 34 at para. 26.
[28] With respect to the encroachment on Mr. Williams’ rights, it will do well to remember Justice Doherty’s words on this issue in Harris (para. 63):
The use of the broad powers associated with Highway Traffic Act stops to routinely investigate passengers who have nothing to do with the concerns justifying those stops must have a significant cumulative, long-term, negative impact on the personal freedom enjoyed by those who find themselves subject to this kind of police conduct. While for persons in some segments of the community, these stops may be infrequent, this record suggests that for others the stops are an all too familiar part of their day-to-day routine. Viewed from the perspective of those who are most likely to find themselves stopped and questioned by police, I think this form of interrogation is anything but trivial. It seems to me at some point it must become provocative.
[29] Mr. Williams is a black man. Although it has not been proven here, there is nonetheless a realistic concern that the wide-open police powers which Cst. Murphy arrogated to himself could be applied in a racially discriminatory manner: see R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34 at paras. 94-97.
[30] On the third branch of Grant, the evidence would have been helpful to the Crown in this prosecution; that is of course why the Crown was trying to get it admitted. However, mere association with the complainant would seem only a small step towards proving Mr. Williams’ guilt of the sex trade charges before the court. It was not like the cocaine in Harris, the admission of which was necessary to the prosecution.
[31] In conclusion, the police are not free to stop and investigate individuals without limit. There are restrictions imposed by the Charter, legislation and the common law. In this case, Cst. Murphy seemed not to be cognizant of the limitations upon his criminal investigations. The Charter breach he committed by obtaining Mr. Williams’ name, address and date of birth, and then running them through police databank was serious and had a serious impact on Mr. Williams. That is why this evidence was excluded from the trial.