COURT FILE NO. CRIMJ(F) 1043/18
DATE: 2020 03 23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QEEN
Erryl Taggart, for the Crown
Respondent
- and -
ALICIA HUTHINSON
Samantha Saunders, for the Accused
Applicant
HEARD: February 19, 20 and 21, 2020
RULINGS ON PRE-TRIAL MOTIONS
Justice Thomas A. Bielby
INTRODUCTION
[1] The applicant, Alicia Hutchinson, stands charged with two counts of possession of cocaine for the purpose of trafficking. It is alleged the offences occurred on October 3, 2017.
[2] As a result of a traffic stop, the cocaine was allegedly discovered in a purse situated on the floor behind the centre counsel of a Toyota Rav4 (the vehicle). The vehicle was stopped by the side of the road. The applicant occupied the driver’s seat and Mr. Kashaine Whittingham, occupied the front passenger seat.
[3] The applicant was not the registered owner of the vehicle and, at the time, her licence to drive was under suspension.
[4] Pursuant to s. 24(2) of the Canadian Charter of Rights the applicant seeks an order excluding all the evidence discovered in the vehicle and her purse, as well as the exclusion of utterances made by her. She alleges her s. 8, s. 9 and her s. 10(a) and (b) Charter rights were violated. She further argues the utterances were not made voluntarily.
[5] The Crown submits that there were no such breaches and if there were breaches, the evidence, further to s. 24(2) of the Charter, should not be excluded.
[6] The Crown also asks the court to rule that the utterances are statements, voluntarily made and therefore admissible.
[7] All of the issues were heard in one blended voir dire.
[8] My decision on these issues was released on February 28, 2020, with written reasons to follow. The following are those reasons.
EVIDENCE
[9] On October 3, 2017, Peel Police Officer Abdul Qadree was on uniform patrol and at 12:15 am, observed the vehicle, parked on the side of Monica Road, a residential street in the Malton area of Mississauga. The officer testified that he noticed that the tail lights of the vehicle were on.
[10] The vehicle was pointing in a westerly direction and the officer was driving in a westerly direction when he observed and approached the vehicle.
[11] The officer testified that in his experience, at that time of night, people often sit in cars and drink alcohol or smoke marijuana. He wanted to know why the vehicle was stopped, and what the occupants, if any, were doing in the vehicle. He wanted to be sure there was no illegal activity.
[12] As he approached the vehicle in his police cruiser, he could not make out whether the vehicle was occupied and if it was, how many occupants there were.
[13] The officer could not recall whether the vehicle was running.
[14] The officer pulled his cruiser up to the left side of the vehicle and activated his alley light, located on right side of his roof mounted light bar. The alley light illuminated the interior of the vehicle.
[15] The officer testified that, at that point, had the vehicle started to move away, he would have watched to see if it was being driven properly and, if it was, he would likely have let it go.
[16] The officer observed there were two occupants of the vehicle, a man and a woman, both of whom were black.
[17] Officer Qadree testified that he observed the applicant moving around in her seat and that she kept her head down and would not make eye contact. The officer testified that the applicant appeared to be very nervous and panicking. The passenger also would not make eye contact.
[18] In the officer’s experience, the actions of the occupants of the vehicle were not what he would have expected when the alley light was activated. They did not look towards him nor did they try to shield their eyes from the light.
[19] Officer Qadree rolled down his right front window and asked the applicant a question to the effect of what they were doing there. The officer could not recall their response and did not record a response in his notes. He testified however, that he recalled that the answer, whatever it was, was not satisfactory and did not make any sense.
[20] The officer testified that the behaviour he observed and the response to his inquiry, raised suspicions.
[21] The officer then told the driver and passenger something to the effect he wanted to speak further to the occupants. He reversed his police cruiser and parked behind the vehicle and activated his blue and red roof lights.
[22] The officer testified that had the vehicle driven away at that point, knowing that he was a police officer (they saw his uniform), he would have had concerns and would have pursued the vehicle.
[23] Officer Qadree got out of his cruiser and walked towards the left side of the vehicle, his intention being to go to the driver’s door and speak to the applicant. As he got close to the vehicle, he observed the applicant reaching back and down to her right.
[24] The officer approached the driver’s door and shone his flashlight into the interior of the vehicle. He wanted to get a better view of what the applicant and the other occupant were doing. He testified that he had no specific crime in mind and believed that after a brief conversation they would be on their way.
[25] The officer testified that while at the driver’s door he could smell unburnt marijuana. He did not detect any odour of alcohol. The officer could not recall if he asked the applicant about her use of marijuana.
[26] Utilizing his flashlight Officer Qadree observed a single green bottle of Heineken beer on the floor, behind the front passenger seat.
[27] As a result of what he observed, Officer Qadree decided to commence a Liquor License Act (LLA) investigation and search the vehicle under the authority of s. 32(5) of the LLA. He asked both occupants for identification and when produced, he returned to his cruiser to “run” the names through CPIC. The officer stated the primacy purpose of running the names was to confirm their identity but added that the inquiry would also confirm the status of their driver’s licences and whether they were the subject of any outstanding warrants.
[28] Officer Qadree testified that when he requested the identification, he advised the occupants that he was conducting a LLA investigation. He could not recall if he told them he would be searching the vehicle. The officer testified that at that point his intent was to issue a ticket to both occupants of the vehicle for having an opened bottle of alcohol in the vehicle.
[29] The officer testified that he decided to search the vehicle believing that, as a result of him observing the Heineken bottle, he had reasonable grounds and the authority to conduct the search. Although he did not specifically examine the bottle when he commenced the search (to determine if it was opened), the officer was of the opinion that, given one single bottle of beer on the floor behind the seat, in a stopped vehicle, at that time of night, it was likely the applicant and her companion were drinking. He operated on the assumption the bottle was open and under the LLA (s.32) it is an offence for a person who has care and control of a motor vehicle with an open bottle of liquor that is readily available to anyone in the vehicle.
[30] As a prelude to conducting the search, Officer Qadree asked both occupants of the vehicle to step out of the car and stand on the sidewalk. By this time Peel Police Officer Ashare arrived to assist. When Officer Qadree returned to his cruiser to verify the identifications, he radioed dispatch advising he was conducting a traffic stop. Officer Ashare explained that the radio conversation between Officer Qadree and dispatch could be heard by other officers on patrol and, given the time of night and the fact that Officer Qadree was alone, it was the custom of other officers who heard the call to go to the scene to determine if assistance was required. Officer Qadree did not request assistance nor did dispatch direct any other officer to assist.
[31] Officer Qadree testified that when he commenced the search of the vehicle he had not yet advised the applicant of her right to counsel because she had not been arrested and his investigation was not criminal in nature.
[32] Officer Qadree testified that, as he was conducting the search, the applicant kept trying to get close to him. She seemed to be trying to say something to him, and in his opinion, might have been trying to obstruct the search. She was told to return to the sidewalk.
[33] The officer conducted a search of the driver’s side of the vehicle first and behind the driver’s seat armrest or console, located a purse. The officer could not recall if the purse was opened or zipped shut. In any event, he searched the purse testifying it was large enough to contain a bottle of beer or other small bottle of alcohol. He discovered however, what turned out to be cocaine and marijuana.
[34] The officer testified that until that discovery he was not conducting a drug investigation, notwithstanding the odour of unburnt marijuana.
[35] At 12:20 am, after discovering the drugs, Officer Qadree advised the applicant that she was under arrest for the possession of drugs and placed her in handcuffs. He escorted her to his police cruiser and placed her in the back seat. Officer Ashare was instructed to arrest the male occupant of the vehicle.
[36] The officer then returned to the vehicle to secure the drugs, after which he returned to his police cruiser and at 12:26 am advised the applicant she was under arrest for the possession of heroin, cocaine and marijuana, for the purpose of trafficking (it was later determined that there was no heroin and the officer subsequently advised the applicant she was under arrest with respect to cocaine and marijuana only).
[37] The officer then read to the applicant her right to counsel and provided the standard caution. The applicant advised the officer of the name of her lawyer and provided a telephone number (After she was transported to 21 Division a call was placed to her lawyer and the applicant had a private telephone conversation with a lawyer).
[38] Officer Qadree then returned to the vehicle to complete the search.
[39] While doing so, the officer discovered a large jar of marijuana on the back seat of the vehicle. He also inspected the Heineken bottle and confirmed it was opened and contained alcohol. There was also liquid of the floor of the back seat.
[40] Officer Qadree testified that, in his interactions with the applicant, there were no language concerns, no obvious signs of drinking or impairment and he had no concerns about the accused’s mental state.
[41] The officer testified that while armed with a firearm, a baton and pepper spray he was not required to deploy any of these measures. To the best of his knowledge the accused suffered no injury. She was not the subject of any threats or promises and was not offered any inducements.
[42] Officer Qadree testified that, when being advised of her right or thereafter, the applicant made a number of spontaneous utterances:
She will take the hit for the drugs but the guy is innocent;
Her lawyer will take care of the charges. She was not worried;
The open bottle was from before: and
She is not the owner of the purse.
[43] These utterances were not made in response to questioning by the officer.
[44] After the arrest and search were completed, Officer Qadree transported the accused to 21 Division, arriving at 12:50 am.
[45] On cross-examination, Officer Qadree agreed that when he first observed the vehicle, he was not responding to a call but was on general patrol. He could not say what, if any, other cars were parked on the road in the vicinity of the vehicle operated by the accused. Nor did he recall what cars were parked in the driveway at the residence in front of which was parked the vehicle.
ARGUMENT AND ANAYLSIS
VOLUNTARINESS
[46] The Crown wishes to admit into evidence the utterances, set out above, and allegedly made by the applicant to Officer Qadree. As noted above, Officer Qadree testified that the utterances were spontaneous and not in response to questioning. The applicant was not threatened, coerced or induced in any way. Other than handcuffing the applicant the officer had no physical contact with the applicant. He testified that, in effect, from what he observed, she had an operating mind.
[47] Officer Ashare had no interaction with the applicant and testified that he did not see or hear anything untoward.
[48] Counsel for the applicant submits that in order to determine voluntariness there needs to be a sufficient record of interaction between the police and the applicant. Counsel relies on authority, R. v. Shilton [2004] O.J. No. 6138, a decision of M.K. Fuerst J. of the Ontario Superior Court of Justice.
[49] In Shilton, commencing at para. 54, the court had regard to the officer’s scanty notes and his inability to recollect.
[50] It is submitted by counsel for the applicant that a large portion of the officer’s notes were not made until after 4:00 am, some hours after the event. The record was lacking in some areas was is not sufficient enough to determine voluntariness.
[51] The officer first observed the vehicle at 12:15 am. The applicant was under arrest some five minutes later and was transported to 21 Division before 1:00 am. The investigation was short in duration, fluid and escalated quickly.
[52] While Officer Qadree’s notes were somewhat lacking, as was his recollection on some points, I am of the opinion that the Crown has proven voluntariness beyond a reasonable doubt. The utterances were brief and made at the time or after the applicant was advised of her right to counsel. The officer completed his notes three to four hours after the arrest and the utterances would easily be remembered. There was no unusually long period of time between the arrest and the completion of the officer’s notes.
RACIAL PROFILING
[53] Counsel for the applicant raises an allegation of racial profiling as a ground for excluding the results of the search and the utterances. She argues when the officer pulled up beside the vehicle, he observed two occupants, a man and a woman, both black. He did not observe any illegal acts on the part of the two occupants. He was inquiring as to “what they were up to.”
[54] Counsel for the applicant submits that the underlying current for Officer Qadree was in relation to, who was in the car. When he observed the occupants, it is submitted that the investigation escalated. The officer cannot recall what the applicant said to him when the vehicle and police cruiser were side by side. How can he say then, he was not satisfied by the applicant’s answer if he cannot recall what it was?
[55] The applicant relies on the decision of the Ontario Court of Appeal in R. v. Dudhi 2019 ONCA 665, [2019] O.J. No. 4333. The judgment was delivered by D. Paciocco J.A., and commencing at paragraph 54, he discusses racial profiling.
[56] Racial profiling has two components, an attitudinal component and a causation component.
[57] The causation component can play a role whether, consciously or unconsciously.
[58] Racial profiling occurs where race or racial stereotypes are used to any degree in suspect selection or subject treatment (para. 55).
[59] On the issue of racial profiling, the Crown cites a lack of an evidentiary record, and relies on the Ontario Court of Appeal decision in R. v. Brown 2003 CarswellOnt 1312. Morden J.A. stated at paragraph 11,
“Accordingly, to succeed on the application before the trial judge, the respondent has to prove that it was more probable than not that there was no articulable cause for the stop, specifically, on the evidence in this case, that the real reason for the stop was the fact that he was black.”
[60] R. v. Brown, when released, was said to be a decision of major significance respecting the issue of racial profiling. The Court of Appeal accepted that the trial judge was resistant to the defence’s theory of bias and racial profiling expressing to counsel for the accused that he found allegations troubling (para. 46). Ultimately, the Appeal Court determined that the trial judge failed to consider the subconscious factor in regard to racial profiling (para. 80).
[61] In addition to the lack of evidentiary record, counsel for the Crown asks the court to take into consideration that the officer, when cross-examined, was not asked questions or challenged about the effect of his discovery that the two occupants of the vehicle were black. The suggestion of racial profiling was not put to the officer.
[62] In Dudhi, Paciocco J. A. considered a number of decisions, including R. v. Brown, and at para. 59, stated, partially in regard to the quote set out in paragraph 58 above,
“This is not the law”
[63] In considering the issue of racial profiling, I note that in Dudhi the appellant was relying on a statement made by one of the investigating officers who, when asked if a certain party was the target, responded, “No, it’s another brown guy who is a drug dealer.” The Appeal Court noted that, “these are the key words relied upon by Mr. Dudhi to establish his racial profiling claim (para. 69).
[64] There is no such similar evidence, whether direct or indirect, before me.
[65] Counsel for the applicant seems to be relying only on the fact that the occupants of the vehicle were black.
[66] Further, I disagree with the submission of counsel for the applicant that the underlying current for the officer was, who was in the vehicle. When the vehicle first caught the attention of the officer, he had no idea who, if anyone, was in the car. His initial intent was to determine what the vehicle and whoever was in it, were doing in that neighbourhood, at that time of night.
[67] For these reasons I find that this is not a case of racial profiling. I also agree with the Crown that if the allegation was to be made, the issue ought to have been put to the officer under cross-examination.
S. 9, 10(a) and (b) OF THE CHARTER, DETENTION & RIGHT TO COUNSEL
[68] The Canadian Charter of Rights, s. 9, states that everyone has the right not to be arbitrarily detained or imprisoned.
[69] Section 10(a) states that everyone has the right on arrest or detention to be informed promptly of the reasons therefor.
[70] Section 10(b) states that upon detention or arrest everyone had the right to retain and instruct counsel without delay and to be informed of that right.
[71] The phrase, ‘without delay” has been judicially interpreted to mean, “immediately”.
[72] Counsel for the applicant submits that her client, was in fact, arbitrarily detained and was not advised as to the reason when detained and was not given her right to counsel.
[73] Counsel submits that the moment the officer pulled his cruiser beside the vehicle and illuminated the vehicle with his bright alley light, the applicant was detained. The officer told her something to the effect that they (the applicant and the other occupant) were to remain because the officer wanted to talk with them.
[74] It would be reasonable for the applicant to assume she was not allowed to leave. A police officer wanted to speak to her.
[75] It is submitted that until the officer observed the beer bottle, he had no evidence of any illegal activity or behaviour. He was acting on a hunch. The vehicle was parked along the side of the street and was not blocking traffic or a driveway.
[76] It is submitted that there was no basis for the detention and the detention was therefore arbitrary.
[77] Further, the applicant was not advised of her s. 10 (a) and (b) rights until after she had been arrested, placed in the cruiser and required to wait for six minutes. As such, she was not told of her right to counsel “without delay”, arguing that upon detention the applicant ought to have been advised of the reason and provided with her rights to counsel.
[78] While acknowledging that detention does not trigger Charter rights in some circumstances, counsel for the applicant argues that the detention from the outset was for criminal investigative purposes and was not a routing traffic stop.
[79] The Crown submits that the interaction between the police and the applicant started with a traffic stop and sobriety check. The officer testified as to what, in his experience, occurred at that time of night, in vehicles stopped in a quiet residential neighbourhood.
[80] The Crown also notes that the entire interaction, from its commencement to arrest was five minutes in length and only 11 minutes in length to the time when the applicant was provided with her s. 10(a) and (b) Charter rights.
[81] The Crown argues that the applicant was detained when the officer moved his police cruiser to a position behind the vehicle and approached the driver’s door of the vehicle, observed the beer bottle and asked for identification. Regardless, the Crown submits that the detention, in these circumstances, did not engage the applicant’s Charter rights. Detention for Highway Traffic Act (HTA) and LLA purposes do not engage the applicant’s s. 10 Charter rights.
[82] In my opinion, regardless at which point the detention commenced, there was no violation of the applicant’s s. 10 Charter rights. The initial detention I find to be authorized under the HTA and upon the discovery of the beer bottle, the continued detention morphed to one founded on the LLA.
[83] R. v. Hufsky 1988 CarswellOnt 54, is a decision of the Supreme Court of Canada, the judgment of the court being delivered by LeDain J. One of the issues before the court was whether the random stop of a motor vehicle by a police officer in the course of spot check duty for the purposes of checking drivers’ licences and proof of insurance, the mechanical fitness of vehicles and the condition or sobriety of drivers infringed the right not to be arbitrarily detained guaranteed by s. 9 of the Charter.
[84] It was determined that the random stop of the appellant at the spot check, although of relatively brief duration, resulted in a detention within the meaning of s. 9 (para. 15).
[85] Such stops result in the police having control over the movement of drivers and vehicles by a demand or a direction which might have significant legal consequence (para. 15).
“Although, authorized by statute and carried out for lawful purposes, the random stop for the purposes of the spot check procedure nevertheless resulted, in my opinion, is an arbitrary detention, because there were no criteria for the selection of the drivers to be stopped and subjected to the spot check procedure. The selection was at the absolute discretion of the police officers” (para. 16).
[86] The court then went on to consider the meaning and impact of s. 1 of the Charter which states,
- The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms se out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[87] The Court concluded that the limit imposed by the HTA on the right not to be arbitrarily detained is a reasonable one that is demonstrably justified in a free and democratic society (paras. 23 and 24).
[88] Brown v. Durham Regional Police Force 1998 CanLII 7198 (ON CA), 1998 CarswellOnt 5020 is a decision of the Ontario Court of Appeal. The appellants were members of a motorcycle club and were stopped by the police at checkpoints established on public highways. The appellants alleged that these stops violated their s. 9 Charter rights because they were arbitrarily detained.
[89] Commencing at paragraph 18, the Appeal Court discussed whether their detention was authorized by law. In answering the question that court made note of s. 216(1) of the Ontario Highway Traffic Act R.S.O. 1990 c. H.8, which states:
“A police officer, in the lawful execution of his or her duties and responsibilities may require the driver of a motor vehicle, other than a bicycle, to stop and the driver of a vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.”
[90] The section authorizes the stopping of vehicles for what may be broadly described as highway regulation and safety purposes (para. 21).
[91] Officers can stop persons for legal reasons which include checking the driver’s licence and insurance, and the sobriety of the driver (para. 21).
[92] The stops may be random in nature (para. 22).
[93] At paragraph 24 the court stated,
“The detention authorized by s. 216(1) of the HTA is circumscribed by its purpose. The detention is limited to the roadside and must be brief, unless other grounds are established for a further detention. The police may also asses the mechanical fitness of the vehicle, examine equipment for compliance with safety standard and from outside the vehicle, make a visual examination of the interior to ensure their own safety in the course of detention….More instrusive examinations or inquiries directed at matters not relevant to highway safety concerns are not authorized by s. 216(1).”
[94] From paragraph 27 I quote,
“The trial judge’s finding that highway safety concerns was one of the purposes behind the stops is a finding of fact. Unless it can be said to be unreasonable or based on a material misapprehension of the evidence, it must be accepted in this court. The totality of the evidence provides a reasonable basis for the trial judge’s conclusion that highway safety concerns were one of the reasons for the stops.”
[95] The court agreed with the trial judge that where the police have highway safety concerns along with other reasons to stop drivers, the police can use their powers under the HTA to stop the vehicle as long as the other purposes motivating the stop are not improper.
[96] From paragraph 31 I quote,
“I agree with this conclusion as long as the other purposes motivating the stop are not themselves improper. For example, the police are entitled on a s. 216(1) stop to require drivers to produce their licenses. That requirement is consistent with the highway safety concerns which underlie the power granted by the section. In addition to ensuring that the driver is properly licensed, the police may wish to identify the driver for other purposes. It may be, as in this case, that the police are interested in knowing the identity of all of those who are connected with what they believe to be criminal activity. The gathering of police intelligence is well within the ongoing police duty to investigate criminal activity. As long as the additional police purpose is not improper and does not entail an infringement on the liberty or security of a detained person beyond that contemplated by the purpose animating s. 216(1) of the HTA, I see no reasons for declaring that a legitimate police interest beyond highway safety concerns should taint the lawfulness of the stop and detention.”
[97] I also take note of para. 39 which reads:
“When I refer to improper police purposes, I include purposes which are illegal, purposes which involve the infringement of a person’s constitutional rights and purposes which have nothing to do with the execution of a police officer’s public duty. Officers who stop persons intending to conduct unauthorized searches, or who select persons to be stopped based on their colour, or who stop someone to vent their personal animosity toward that person, all act for an improper purpose. They cannot rely on s. 216(1) of the HTA even if they also have highway safety concerns when making the stop.”
[98] R. v. Calder 2004 CarswellOnt 588 is a decision of the Ontario Court of Appeal. In that case, an officer followed a vehicle into a public parking lot and observed that it parked in a fashion described by the officer as “oddly”. The officer decided to check the appellant’s driver’s licence or perhaps his sobriety. The officer approached the car and asked the appellant to identity himself. The officer detected signs of impairment which triggered a roadside breath test and a subsequent breathalyzer test, which lead to criminal charges.
[99] In Calder, the trial judge, in acquitting the appellant, concluded that the officer had no legal justification for approaching the appellant’s car. The trial judge was of the opinion that the appellant was arbitrarily detained contrary to s. 9 of the Charter.
[100] The Summary Conviction Appeal Court Judge and the Court of Appeal disagreed with the trial judge. At paragraph 3 of a very short and succinct Court of Appeal judgment, the following was stated:
“Like the Summary Conviction Appeal Court Judge, we disagree with this analysis. The officer needed no legal authority to approach the appellant while he was sitting in his vehicle in the public parking area and he needed no legal authority to speak to the appellant. There is no evidence upon which it could be said that the appellant was detained by the officer within the meaning of detention as explained in R. Therens (1985) 1985 CanLII 29 (SCC), 18 C.C.C. (3d) 481 (S.C.C.).”
[101] In R. v. Suberu 2009 SCC 33, the issue was whether the police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention. The court determined that from the moment an individual is detained, s. 10(b) is engaged (para. 2).
[102] The immediacy of the obligation to advise a detainee of the right to counsel is only subject to concerns for officer or public safety or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter (para. 2).
[103] The police may delay a person for the purposes of asking questions without triggering a detention such that the person’s Charter right come into play (para. 7).
[104] Not every interaction with the police will amount to a detention for the purpose of the Charter even if a person is under investigation for criminal activity, is asked questions by the police and even physically delayed (para. 23).
[105] On the strength of these authorities, I am of the opinion that regardless of which argument I accept as to when detention crystalized, such detention the detention was authorized under s. 216 of the HTA. The officer was entitled to ensure the vehicle remained where it was (akin to a traffic stop) and was entitled to make inquiries further to the HTA. The officer was acting within his authority to do so and to investigate the issue of sobriety and demand identification and a driver’s licence. Both go to the issue of highway safety.
[106] The officer’s entitlement to detain the applicant continued after he observed the Heineken bottle on the floor of the backseat, although the nature of the investigation changed to that of a LLA investigation.
[107] The enabling sections under the HTA and the LLA as noted in the authorities above are reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society, pursuant to s. 1 of the Charter.
[108] Until the point of arrest, the applicant’s s. 9 and 10 Charter rights were yet to be engaged.
[109] The applicant’s s. 10 Charter rights, however, crystallized upon arrest and the applicant was entitled to be advised of the rights immediately upon arrest. I accept that the applicant was advised of the reason for her arrest, at the time of arrest. It was for the possession of drugs. However, the applicant was not advised of her s. 10(b) rights immediately. There was a delay of six minutes.
[110] I find that the delay was a violation of the applicant’s s.10(b) rights.
[111] I do note however, that the officer’s manner of proceeding was understandable. He wanted to ensure the securing of the drugs. The time which elapsed between the arrest and the provision of the applicant’s Charter rights was relatively short. There were no utterances or statements made by the applicant during that period nor was the applicant asked any questions concerning the drugs. These circumstances are to be accounted for in the s. 24(2) analysis.
THE SEARCH
[112] Because the search was warrantless, the burden is on the Crown to prove the searches were authorized by law and not a breach of the applicant’s s. 8 Charter rights.
[113] As outlined above, given the time of night, the officer used a flashlight to observe the bottle of Heineken beer on the floor of the backseat. The observation lead to the interior search of the vehicle and the discovery of the drugs.
[114] I find that the use of the flashlight in this manner was not a search which falls within s. 8 of the Charter.
[115] In R. v. Lotozky 2006 Carswell Ont. 3813, M. Rosenberg J.A., of the Ontario Court of Appeal, at para. 19, stated,
“As regards the other two aspects of police conduct, I tend to think that merely tapping on the window, like peering into a window with a flashlight, does not involve a search. Asking routine questions of a motorist about a license, ownership and insurance similarly would not seem to be the type of questioning that would lead to a finding of a sufficient intrusion into a reasonable expectation of privacy.”
[116] In R. v. Mellenthin 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, Cory J. writing for the court, stated, at para. 19,
“There can be no quarrel with the visual inspection of the car by police officers. At night the inspection can only be carried out with the aid of a flashlight and it is necessarily incidental to a check stop program carried out after dark. The inspection is essential for the protection of those on duty in the check stops.”
[117] Finally, I have had reference to R. v. Grunwald 2010 BCCA 288, at 39, application for leave to appeal refused [2010] SCCA No. 299 (SCC), which reads,
“In my view, common sense tells that the police working at night, will have occasion to use flashlight in the ordinary course of their duties…When the police are lawfully where they are permitted to be, the use of artificial illumination should not automatically constitute a search.”
[118] On the strength of these authorities, the officer, in using his flashlight to illuminate the car’s interior and thereby discovered the bottle of beer, was not conducting a s. 8 search.
[119] There is an issue of whether the applicant, with respect to the vehicle and the pure, had a reasonable expectation of privacy. She was not the owner of the vehicle and her driver’s licence was under suspension. It is unclear if she admitted the purse was hers.
[120] In R. v. Belandra 2019 ONCA 68, the appellant was arrested for possession of stolen property and careless driving. He was the operator of a stolen van. Ultimately, his vehicle was searched, and number of credit cards discovered.
[121] The Ontario Court of Appeal agreed with the trial judge that because the van was stolen the appellant lacked a reasonable expectation of privacy (para. 31) and the credit cards were admissible evidence.
[122] In the matter before me there is no evidence regarding how the applicant came to be an occupant of the vehicle and whether she had care and control of the vehicle. What expectation of privacy can the applicant rely on in those circumstances? If there was no such expectation, can it then be said that the applicant would have no s. 8 Charter rights in relation to the vehicle?
[123] There may also be an issue with respect to the ownership of the purse in which the drugs were discovered. Certainly, if the purse was the applicant’s, there would be some reasonable expectation of privacy.
[124] It is the theory of the Crown that the applicant was in the care and control of the vehicle and that the purse was her property.
[125] R. v. Jones 2017 SCC 60, [2017] SCJ No. 60, is a decision of the Supreme Court of Canada, in which there was an issue concerning an expectation of privacy. In that case there were a number of text messages which were crucial evidence. The accused would not admit that the messages were authored by him.
[126] The court ruled that the accused, who was alleging the search of the phone violated his s. 8 Charter rights, was for the purposes of the application entitled to rely on the Crown’s theory, stating,
“Instead, I conclude that Mr. Jones should have been permitted to rely on the Crown’s theory that he authored the text messages for the purpose of establishing his subjective expectation of privacy in the subject mater of the search. As I explain below, this result coheres with the relatively modest evidentiary foundation required to establish the subjective expectation element in the totality of the circumstances analysis, as well as the principle against self-incrimination.”
[127] For the purposes of this proceeding I will assume the applicant had an expectation of privacy in relation to the vehicle and the purse.
[128] With respect to the search of the vehicle, I find that the search was authorized by s. 32(5) of the LLA. There was no violation of the applicant’s s. 8 Charter rights.
[129] Had the officer first determined the bottle of beer discovered was actually open there is no doubt that reasonable ground existed to conduct the search.
[130] However, the officer did not inspect the bottle until after he had commenced the search and located the drugs. Regardless, I find that the officer had reasonable grounds to conclude that the bottle was open and, in a location, readily available to the applicant and her co-occupant. It was reasonable for him to concluded that a single bottle of beer, on the floor of the backseat was likely being consumed by the occupants or one of them. The officer observed the applicant, from the driver’s seat, reach to her right and down. Such movement would be consistent with locating the bottle where it was found. These facts grounded the officer’s belief that the applicant had breached the LLA.
[131] The next issue is whether the officer had the right to open the purse in which the drugs were located. It is to be remembered that the officer could not recall whether the purse was zipped closed and had to be opened by the officer or whether it was opened when he searched the purse.
[132] R. v. Indoe 2004 CarswellOnt 441, is a decision of Valin J. of the Ontario Superior Court of Justice. The applicant was a passenger in an extended cab half-ton truck. The vehicle was stopped at a R.I.D.E. check.
[133] When asked, the applicant in Indoe told the officer that there was liquor in the truck. After the applicant got out of the truck the officer found two bottles of liquor on the ground, one primarily empty and the other which had not been opened. The police searched the truck and more alcohol was discovered.
[134] A search of the vehicle continued and included the opening of a backpack owned by the applicant and which was found to contain drugs.
[135] In reaching a decision Valin J. made note of s. 32(2)(b) of the LLA that states liquor is not kept unlawfully when it is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle. The judge concluded,
“Therefore, it follows that a police officer, while conducting a warrantless search under the LLA, is not entitled to search the interior of a piece of luggage.
In this case it is clear that the officers were entitled to search the vehicle for liquor, as the applicant admitted that liquor was present in the vehicle and Constable Benoit heard the clinking of glass bottles. However, there was no statutory authority to search the inside of the burgundy backpack.”
[136] The matter before me can be distinguished from Indoe. The purse was on the backseat floor behind the armrest or center console of the driver’s seat occupied by the applicant. As such, the purse and anything in it would be readily available to either the applicant or her co-occupant.
[137] R. v. Benimadhu [2016] O.J. No. 1340 is a decision of L. Botham J. of the Ontario Court of Justice. The case involved a s. 32(5) LLA search and when searching the trunk of the vehicle, drugs were discovered in a bag. The court ruled that a search of the bag in the trunk was not authorized.
[138] It was said that a search under s. 32(5) is not unlimited and there was no reason to think the bag contained alcohol (para. 21). The section did not provide the officer with authorization to search the vehicle’s trunk.
[139] R. v. Pham 2012 ONCJ 865, is a decision of S.A. Coroza J. of the Ontario Court of Justice and now of the Ontario Superior Court of Justice. During the course of an investigation under the LLA, the officer seized a closed backpack from the rear passenger seat. The accused admitted that the bag was his after which the officer opened the bag and found marijuana.
[140] The accused sought the exclusion of the evidence because of a breach of his s. 8 Charter rights.
[141] Coroza J. found that the backpack was searched because the officer believed that there could be alcohol in the bag which was found on the rear seat between where the two backseat occupants, one of whom was the accused.
[142] Coroza J. ruled that the search of the vehicle including the backpack was authorized by s. 32(5) and disagreed with counsel for the accused that s. 32(5) should be read as narrowly as the court did in the Indoe decision.
[143] From para. 32 I quote,
“With respect, on the facts of this case, it would be somewhat startling proposition that P.C. Harrop could not search a backpack that was located on the back seat of a car, readily available to the driver or any other passenger in the car after being handed partially consumed cans of beer…”
[144] The same type of reasoning can be found in R. v. F. (J.) 2015 ONSC 3068, a decision of C. McKinnon J. of the Ontario Superior Court. That case also involved the discovery of drugs in a backpack which was the subject of a s. 32(5) search. The court concluded that the officer had reasonable and probable grounds to search the backpack for liquor (para. 69).
[145] In the matter before me, the purse was readily accessible by either occupant of the vehicle, given its location and it was reasonable to think that it may contain alcohol. I accept that it was large enough to do so. The search of the purse was within the powers prescribed by s. 32(5) of the LLA.
S. 24(2) ANALYSIS
[146] I have concluded that Officer Qadree breached the applicant’s s. 10(b) Charter rights. Therefore, I have to consider the impact of such a breach and whether the evidence discovered or any portion thereof ought to be excluded as a result of the breach.
[147] Section 24(2) of the Charter provides that evidence obtained in a manner that infringes the accused’s rights “shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.
[148] This requires me to assess and balance the effect of admitting the evidence further to the Grant three lines of inquiry.
[149] In R. v. McGuffiel 2016 ONCA 365, 131 O.R. (3rd) 643, commencing at paragraph 61, the Ontario Court of Appeal stated,
“After Grant, at paras. 71 – 86, the admissibility of evidence under s. 24(2) is approached by examining the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused and society’s interest in an adjudication on the merits.
The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion…The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of the evidence…if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility…Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.”
THE SERIOUSNESS OF THE BREACH
[150] From paragraph 57 in R. v. Charles-Roberts [2014] O.J. No. 1213, a decision of B.A. Allen J. of the Ontario Superior Court of Justice I quote,
“The more sever or deliberate the state conduct that led to the Charter violation, the greater the need for courts to disassociate themselves from that conduct, by excluding evidence linked to that conduct in order to preserve public confidence in and ensure state adherence to the rule of law.”
[151] In regard to this line of inquiry, as noted above, the delay in advising the applicant of her right to counsel was minimal, a matter of six minutes after the arrest. The officer acted reasonably and in good faith by determining that he first had to secure the drugs. Upon doing so, he returned to the applicant who had been placed in the police cruiser and advised her again why she was arrested and told of her right to counsel.
[152] Nothing of interest occurred within those six minutes. No questions were asked of the applicant. Nor did she make any statement or utterance during that time frame. The applicant was not prejudiced as a result of the delay. The discovery of the evidence was in no way dependent on or a result of the s. 10(b) breach.
[153] R. v. Graham 2018 ONSC 6718, is a decision of M. A. Code J. From para. 86 I quote,
“In a fast-moving roadside encounter, where the investigation evolved through a series of developments that raised numerous legal and Charter issues, the two officers generally understood the law and faithfully complied with it, except for this one isolated mistake.”
[154] I conclude, that the first line of inquiry supports the admissibility of the evidence in issue.
IMPACT OF THE BREACH UPON THE APPLICANT
[155] With respect to the second line of inquiry, I agree with Code J., in the Graham decision, concerning the impact of the s. 10(b) breach on the applicant’s protected interests. From paragraph 88, I quote,
“In my view, there was virtually no impact. No incriminating statement was obtained. There was no questioning beyond the one brief and unsuccessful inquiry as to whether any one of the three occupants had thrown the baggie out of the car. The police then left the three occupants in the car for a period of time, while waiting for “back up” to arrive. Graham was left in possession of his cell phone during this period. Most importantly, even if Graham had been advised of his s. 10(b) rights at the roadside and had called counsel, prior to any questioning, arrests, or searches, there is nothing counsel could have done or said that would have delayed or prevented the arrests, the search of the Chevy Cruze and the seizure of the evidence.
[156] The similarities between the case before me and the facts in the Graham decision are obvious. In both cases a vehicle was searched under the Liquor License Act. There were no s. 8 and s. 9 violations; no pattern of Charter breaches. In the Graham case there was some minor questioning of the accused prior to providing his s. 10(b) rights. In the matter before me, there is even less prejudice to the applicant because, between the time of the applicant’s arrest and provision of her s. 10(b) rights there was no questioning. In both matters, had the applicant been allowed to speak to counsel immediately after her arrest counsel could not have prevented the arrest, the search, or the seizure of the evidence.
[157] The second line of inquiry favours the admission of the evidence.
SOCIETY’S INTEREST IN THE ADJUDICATION OF THE MATTER ON ITS MERITS
[158] As to the third line of inquiry, the evidence in issue is essential to the Crown’s case. The evidence in issue is physical evidence and reliable evidence. To exclude the evidence would erode the public’s confidence in the administration of justice. This line of inquiry, as in R. v. Graham (supra, para. 90), strongly favour the admission of the evidence.
[159] Having considered all three lines of inquiry, I have concluded that the admissibility of the evidence in issue, in all the circumstances, would not bring the administration of justice into disrepute.
DECISION
[160] On the strength of what I have reviewed above, the applicant’s Charter applications are dismissed. The evidence discovered by the officer in the vehicle is admissible.
[161] Further, the utterances were voluntarily made and are admissible as evidence.
Bielby J.
Released: March 23, 2020
COURT FILE NO. CRIMJ(F) 1043/18
DATE: 2020 03 23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
ALICIA HUTHINSON
RULINGS ON PRE-TRIAL MOTIONS
Bielby J.
Released: March 23, 2020