Court File and Parties
COURT FILE NO.: CR-18-90000587-0000 DATE: 20200120 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – RICARDO FRANCIS Applicant
COUNSEL: David Wright, for the Attorney General of Ontario and Helena Solin, for the Public Prosecution Service of Canada Jennifer Penman and Laura Remigio, for the Applicant
HEARD: November 12, 13, 18-20, 22, 2019
RULING ON APPLICATION TO EXCLUDE EVIDENCE PURSUANT TO SS. 8 AND 24(2) OF THE CHARTER
B. P. O’MARRA J.
Overview
[1] On August 8, 2017 the applicant was the lone occupant of a motor vehicle that was pulled over by police. The applicant was arrested based on an outstanding warrant. A search of the vehicle revealed a loaded handgun, ammunition and illegal drugs. Later at the police station more illegal drugs were found concealed in the applicant’s underwear.
[2] The applicant does not dispute that the initial stop and arrest were lawful. However, he sought exclusion of the firearm, ammunition and drugs based on alleged violations of s. 8 of the Charter.
[3] On November 22, 2019 I dismissed the application to exclude the evidence. These are my Reasons.
The Evidence
[4] Shortly before 10 a.m. on August 8, 2017 Officer Ma of Toronto Police Service (TPS) was operating his marked cruiser when he observed a motor vehicle registered to the applicant. He received information that there was a warrant in the first instance for the arrest of the applicant on charges that included attempted murder and use of a firearm. Those charges related to an incident that allegedly occurred on July 29, 2017.
[5] The applicant’s vehicle was pulled over without incident at approximately 10 a.m. The applicant was the sole occupant. Officer Ma approached the vehicle with his gun drawn and yelled commands at the applicant. The applicant put his hands out the window and showed they were empty. The applicant followed the commands and exited the vehicle. Officer Ma handcuffed him and advised that he was being held under investigative detention for attempted murder. Officer Ma searched the applicant and found the following items: a wallet, cash, a flip phone, car keys and some change. He also found a driver’s license that confirmed the identification of the applicant.
[6] At approximately 10:08 a.m. Officer Ma advised the applicant that he was under arrest for attempted murder. He also advised him of his right to counsel. The applicant said he understood and wanted to speak to his lawyer but could not recall his name. Officer Ma said he would facilitate a call to duty counsel when they got to the station. The applicant said he understood.
[7] Officer Trumaine Jackson had arrived on scene after the arrest. Officer Ma testified that he instructed him to remain on scene and search the vehicle “incident to arrest”.
[8] Officer Ma believed that search incident to arrest would relate to anything that the applicant could have access to from the driver’s seat, possibly anything related to the crime for which he was arrested. He believed that anything found by Officer Jackson would be handled by officers from the unit investigating the shooting incident of July 29, 2017. He agreed that when he instructed Officer Jackson to search incident to arrest he understood that the vehicle would be sealed and towed to a police facility for forensic examination. He agreed there was no urgency to the initial search of the vehicle since the applicant had been removed and cuffed. There was time to seal and tow the vehicle while a search warrant was applied for. He began transporting the applicant from the scene of the arrest at approximately 10:21 a.m.
[9] Officer Jackson testified that he attended the scene to impound the vehicle as it could not remain on the street. He did not say he was instructed to search. He checked the exterior of the vehicle for damage. He then made an “inventory search” to document any items in the vehicle. He testified that he could not seal the vehicle until after the inventory search was complete. He leaned into the vehicle to search but did not sit inside. He checked the entire front of the interior, including the consoles and the glove compartment. He found some unremarkable items in the front area. He intended to also search the trunk but did not do so after what he observed behind the driver’s seat. On the floor behind the driver’s seat he found a drawstring bag. He opened the bag and saw two bags of white powder and a satchel. He opened the satchel and saw what appeared to be the butt of a handgun. Based on what he saw he stopped his search and contacted Officer Ma to update him and seek direction. Based on the bags of white powder and what appeared to be a gun he felt he was no longer involved in an inventory search.
[10] Officer Ma testified that at approximately 10:50 a.m. Officer Jackson contacted him and said that he had found a firearm and quantity of drugs in the cabin area of the vehicle. Officer Ma reported that information to Detectives Thorne and Pilon. Officer Ma then advised Officer Jackson to stop the search and seal the vehicle pending a tow to the forensic unit and an application for a search warrant. Officer Jackson then sealed the vehicle. The tow truck arrived at approximately 12:50 p.m. Officer Jackson followed the towed vehicle to the forensic identification garage. They arrived there at approximately 1:04 p.m.
[11] Officer Rita James was in her own marked cruiser when she was contacted by Officer Ma before the applicant was stopped and arrested. She observed the applicant being taken into custody at the scene. She went to the applicant’s vehicle and turned it off. She then took the keys out and placed them on top of that vehicle. She has never discussed with Officer Ma that he recalls finding keys on a search of the applicant while she found keys in the ignition. She did not search any part of the interior of that vehicle.
[12] The applicant was paraded at the station at approximately 11:05 a.m. before Sergeant McKee. Officer Ma requested a strip search of the applicant based on the nature of the charges and the items that had been observed inside the applicant’s vehicle by Officer Jackson. Sergeant McKee authorized the strip search for those reasons as well as the fact that the applicant would be held for a bail hearing. The search was conducted in the presence of two male officers with the door closed. Officer Ma testified that at no point was the applicant completely unclothed. The search began with the applicant being instructed to remove outer layers of clothes one at a time by himself. As each item was removed it was searched by the officers and then returned to the applicant to put back on. Inner and outer layers of clothes were thus removed and put back on before proceeding to the bottom half of his body. The officers did not touch the applicant during this process. Officer Ma described the process as respectful. The applicant did not testify on these applications and counsel did not suggest there was any lack of respect shown by the officers in the course of the search.
[13] As Officer Ma searched through the pants that had been handed to him the applicant stated “I’ve got more stuff.” He repeated this statement and asked Officer Ma if he could get the stuff. Officer Ma said no and asked where it was. The applicant pointed to his underwear. Officer Ma asked him to remove his underwear. The applicant complied. Officer Ma saw two light brown coloured rocks inside a clear plastic bag. Officer Ma asked what it was. The applicant said it was heroin. Officer Ma then arrested the applicant for possession of that drug. The strip search concluded at approximately 11:30 a.m.
[14] Officer Hart was called in early that day at 2:00 p.m. and detailed to prepare applications for search warrants for the vehicle that had been seized that morning. The applications related to allegations of attempted murder and firearm offences dated July 29, 2017 as well as the drugs that had been observed and found in the car. He spent approximately four hours in preparing the applications. He testified that the office of the Justice of the Peace closes at 5:00 p.m. so he proceeded by way of the telewarrant process. The two applications related to offences under the Criminal Code and the Controlled Drugs and Substances Act. He testified he was more concerned with preparing the applications as thoroughly as possible rather than completing them by 5:00 p.m.
[15] The information reviewed by Officer Hart in preparing the applications included the following:
- The occurrence sheets for the shooting incident of July 29, 2017.
- Consultation with one of the investigators of the shooting incident of July 29, 2017.
- Speaking to Officer Ma about the circumstances of the vehicle stop and arrest of the applicant.
- Speaking to Officer Jackson about the search incident to arrest and observations of what appeared to be drugs and a firearm.
- Information contained in applications for search warrants prior to August 8, 2017 related to the shooting incident.
He agreed that the contents of the two applications were identical. He considered waiting until the next morning to attend on a Justice of the Peace at the courthouse. However, he decided to proceed sooner since the investigation involved an. alleged attempted murder by use of a firearm. He decided it was best to seek and execute search warrants as soon as possible. He was aware throughout that the vehicle was sealed and in police custody and control. He was not concerned about possible tampering with the contents of the vehicle, but was concerned about the potential danger of a loaded firearm inside. He wanted to make sure the firearm was seized and rendered safe sooner rather than later.
[16] The telewarrants were received back at 9:50 p.m. Officer Hart was present with other officers when the search warrants were executed. Photos were taken before items were removed. In a bag and satchel behind the driver’s seat they recovered a loaded handgun, ammunition and quantities of drugs. (later found to be cocaine, heroin and fentanyl.)
Search of a Motor Vehicle Incident to Arrest
[17] A search will be lawful if it is authorized by law, if the law itself is reasonable and the search is conducted in a reasonable manner. R. v. Collins, [1987] 1 S.C.R. 265, at p. 278 and R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1148.
[18] The common law authorizes search incident to a lawful arrest. It requires neither a warrant nor independent reasonable and probable grounds. This is justifiable because the arrest itself requires reasonable and probable grounds or an arrest warrant. If the arrest itself is later found to be invalid then the search will also be invalid. Cloutier v. Langois, [1990] 1 S.C.R. 158, at pp. 182, 184, 185.
[19] Motor vehicles are legitimately the objects of search incident to arrest as they attract no heightened expectation of privacy that would justify an exemption from the usual common law principles. The most important limit on the common law doctrine of search incident to arrest is that the search must be truly incidental to the arrest. The three main purposes of search incident to arrest are to ensure the safety of the police and the public, the protection of evidence from destruction by the arrestee or others, and the discovery of relevant evidence. There are both subjective and objective aspects to the belief and intention of the police. The police must have one of the purposes for a valid search incident to arrest in mind when the search is conducted. Further, the belief that this purpose will be served by the search must be a reasonable one. If the justification for the search is to find evidence there must be some reasonable prospect of securing evidence of the offences for which the accused was arrested. The right to search a car incident to arrest and the scope of the search will depend on a number of factors, including the basis for the arrest, the location of the car in relation to the place of arrest and other relevant circumstances. There is no need to set a firm deadline on the amount of time that may elapse before the search is no longer incident to arrest. A substantial delay may raise a rebuttable inference that the search is not sufficiently connected to the arrest. R. v. Caslake, [1998] 1 S.C.R. 51, at paras. 15-17, 19, 20, 22-25.
[20] In R. v. Rochwell, 2012 ONSC 5594 a quantity of illicit drugs were found by the police inside a locked briefcase that was found in the back seat of a car being driven by the accused. He was the sole occupant of the car. The sole reason for the stop by police was his failure to come to a complete stop at a marked intersection. As the officer spoke to the accused through the partly open window he told the accused that he could smell marijuana and told the accused to produce it. The accused then handed over an unlit marijuana cigarette that was located in the area of the front centre console. The accused was told to exit the car and was arrested for simple possession of marijuana. At para. 5 Justice Code indicated that there was no question that Rochwell was lawfully under arrest for a criminal offence at the time of the subsequent search of his briefcase, and that the police were entitled to exercise common law powers of search incident to arrest. Those powers, at a minimum, allowed the police to search the interior of Rochwell’s car. The s. 8 Charter issue was whether the police lawfully opened the briefcase, exercising common law powers of search incident to arrest. Justice Code held that they did.
[21] Officer Ma testified that he directed Officer Jackson to search the vehicle incident to what is conceded to be a valid arrest for attempted murder involving a firearm. Officer Jackson did not testify he was so instructed. Rather he said he conducted an inventory search to precede the sealing and towing of the vehicle. Notwithstanding this discrepancy, in my view the validity of the search must be decided based on an assessment of the actions and beliefs of Officer Ma. If he had completed the arrest and proceeded to search the vehicle himself it could not be argued that he lacked the legal authority to search the interior based on common law principles. I am reinforced in my view of Officer Jackson as agent for Officer Ma by the actions of Officer Jackson when he first observed what appeared to be drugs and a firearm. He immediately stopped his search and contacted Officer Ma for further instructions.
[22] The undisputed and specific legal authority to stop and arrest the applicant and the fact he was in the vehicle at the time clearly links the search as truly incidental to the arrest. Based on a relatively fresh arrest warrant for attempted murder involving a firearm it was both reasonable and proper for the police to search the interior of the vehicle and its contents to discover and preserve potential evidence.
Inventory Search
[23] The Crown submitted that the search of the vehicle and its contents was lawful both as incident to arrest and as an inventory search.
[24] In R. v. Nicolosi, 40 O.R. (3d) 417 the police stopped the accused after observing him drive in a reckless manner. A check on CPIC revealed that there was an outstanding warrant for driving without insurance. The accused was abusive and struggled with police. He was arrested and his vehicle was impounded. An inventory search of the vehicle revealed a gun. On appeal Doherty J.A. observed that no one in the position of the accused could reasonably expect that the police would not enter the vehicle that was in their custody. Thus there was no breach of s. 8 of the Charter. In the alternative, the court held that if the accused’s privacy rights were infringed, this was a warrantless search authorized by law. The police had a responsibility to keep impounded property safe and thus must have the authority to search and inventory the contents of the vehicle.
[25] I have earlier found that the search of the applicant’s vehicle was lawful as incident to his arrest. In the alternative, I am also satisfied that the search by Officer Jackson that led ultimately to the execution of two telewarrants was a lawful inventory of the contents of the vehicle that had become the responsibility of the police.
Resort to the Telewarrant
[26] The applicant does not challenge the grounds for granting the telewarrants. The sole attack on their validity is that the deponent failed to demonstrate that it was impractical for him to appear personally before a justice and make the application for the search warrants in the usual fashion. The applicant’s position is based on the submission that the Informations to Obtain (ITO) could have or should have been completed in time to personally attend before a justice. Officer Hart testified that the process took four hours because he was more concerned about getting it right rather than completing and submitting them by 5:00 p.m. He also testified that he did not choose to wait and attend the courthouse in the morning out of concern for a possibly loaded handgun in the vehicle. In both of the ITOs Officer Hart deposed to the following:
There is currently no sitting Justice of the Peace available in the courthouse to consider this application. Further, this matter is regarding a firearm, currently inside a vehicle, and pertaining to an active attempted murder investigation.
[27] In R. v. Daniels, 2015 ONSC 283, Justice Kenneth Campbell referred to the statutory requirements for the issuance of a telewarrant at paras. 10-14:
[10] Under s. 11(1) of the Controlled Drugs and Substances Act, a justice may, in certain defined circumstances, issue a warrant authorizing a peace officer to search a place for controlled substances. Such warrants may be issued on ex parte applications supported by “reasonable grounds.” According to s. 11(2) of the Controlled Drugs and Substances Act, for the purposes of such ex parte search warrant applications, an information may be submitted “by telephone or other means of telecommunication in accordance with s. 487.1 of the Criminal Code, with such modifications as the circumstances require.” It is apparent, therefore, that a telewarrant may be issued under the Controlled Drugs and Substances Act, provided that the ITO submitted in support of such an application is “in accordance” with the requirements of s. 487.1 of the Criminal Code.
[11] According to s. 487.1 of the Criminal Code, a peace officer may properly resort to the telewarrant procedure to obtain a search warrant whenever the officer believes that an indictable offence has been committed and it would be “impracticable” for the officer to “appear personally before a justice” and make the application for a search warrant in the usual fashion.
[12] As outlined in s. 487.1(4) of the Criminal Code, an “information that is submitted by telephone or other means of telecommunication” seeking a telewarrant, “shall include” a number of different statements justifying the issuance of the requested telewarrant. One of these mandatory statements is “a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice.”
[13] According to s. 487.1(5) of the Criminal Code, a justice may thereafter issue the requested telewarrant if he or she is satisfied that the information submitted by telephone or other means of telecommunication: (a) is in respect of an indictable offence and “conforms to the requirements” of s. 487.1(4); (b) “discloses reasonable grounds for dispensing with an information presented personally and in writing;” and (c) discloses the necessary “reasonable grounds” for the issuance of the warrant.
[14] The jurisprudence on the meaning of the term “impracticable” in this legislative context suggests the creation of a relatively low threshold standard, which imports a large measure of practicality and common sense. According to the authorities, the term “impracticable” requires that personal attendance before a justice be more than merely inconvenient for the affiant, but it need not be impossible for the affiant. The term “impracticable” requires, in short, that personal attendance before a justice be very difficult or not practical for the affiant in the circumstances. See R. v. Boussoulas, 2014 ONSC 5542, at paras. 72, 76 (and the authorities cited and discussed therein).
[28] Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of willful disregard of Charter rights unless the person charged can show that the warrant was obtained through the use of false or deliberately misleading information. Obtaining the warrant generally militates in favour of admitting the evidence. See R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 761, at paras. 28-29.
[29] Resort to the telewarrant process to obtain the necessary prior judicial authorization for a proposed search, without having properly demonstrated the necessary grounds justifying resort to the telewarrant process, is not a serious breach of the Charter where the proposed search would likely have been judicially authorized in any event – either by means of a telewarrant or by a standard search warrant. See Daniels, at para. 38, R. v. Lacelle, 2013 ONCA 390 at paras. 11-12.
[30] The grounds to obtain the two telewarrants in this case were unassailable. There was no suggestion of an oblique motive for the deponent to apply by telewarrant rather than attend in person before a justice. The warrants would have inevitably and properly been granted in any event. The grounds stated in the ITOs and confirmed in the evidence of Officer Hart on the application provided reasonable grounds to proceed by telewarrant.
Strip Search at the Station
[31] In R. v. Golden, 2001 SCC 83, 3 S.C.R. 679 the court considered whether the search incident to arrest power is broad enough to encompass the authority to strip search an arrested person. The answer was in the affirmative subject to limitations. The court held the following:
- Strip searches cannot be carried out simply as a matter of routine policy. (para. 90)
- For a strip search to be justified as an incident to arrest it is necessary that the arrest itself be lawful. (para. 91)
- The search must be truly incident to arrest in that the search must be related to the reasons for the arrest itself. The reasonableness of a search for evidence is governed by the need to preserve evidence and to prevent its disposal by the arrestee. The mere possibility that the arrestee may be concealing evidence or weapons upon his or her person is not sufficient to justify a strip search. (paras. 91-94)
- There is a distinction between strip searches incidental to arrest and searches related to safety issues in a custodial setting. Where arrestees will be entering the prison population, there is a greater need to ensure that they are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment. (para. 96)
[32] The strip search in this case was authorized by a senior officer and carried out based on the particular circumstances of the arrest. That included the items that had been observed by Officer Jackson behind the driver’s seat of the applicant’s vehicle. The applicant was to be held for a bail hearing so the search was reasonable and proper to ensure that he did not have any contraband or weapons that may not have been detected or observed in the course of the original pat down search at the time of arrest. The search was conducted in a dignified and respectful manner. It was justified both as incident to arrest and related to safety issues in a custodial setting.
Result
[33] The application is dismissed and the evidence seized is admissible on the trial.
B.P. O’MARRA J.
Released: January 20, 2020
REASONS FOR JUDGMENT
B. P. O’MARRA J.