COURT FILE NO.: CR-18-1201-AP DATE: 2020 07 07
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent N. Cooper for the Respondent Public Prosecution Service of Canada
- and –
GURMILAN MATHAROO Applicant A. Furgiuele and J. Christie for the Applicant
HEARD: July 2, 2020 by teleconference
RULING ON “POINTER CARS” DISCLOSURE MOTION
D.E HARRIS J.
[1] Mr. Matharoo moved at this pre-trial hearing to compel the Crown to disclose the details of the police use of what is known as “pointer car” designations. At the conclusion of the hearing, the application was allowed. These are the reasons for that decision.
INTRODUCTION
[2] There will be a Charter Section 9 arbitrary detention issue raised by the defence at trial. The defence argues that the evidence sought in this application is highly relevant to the Charter application.
[3] In brief, the evidence from the discovery establishes that the sole reason the applicant was detained by P.C. Pileggi of the Peel Regional Police (PRP) was because he was driving a vehicle that had been designated a “pointer car” on the police computer system. Evidence at the discovery explained that a pointer car is a broad category used by the police indicating that a car is associated with a criminal suspect or person of interest. In this case, the pointer designation associated the car with a person by the name of Panov who, it stated on the computer system, was wanted for drug and firearms offences. However, it is at least arguable that at the time the applicant was driving the vehicle, it was no longer associated with Panov. The continued designation of the car as a pointer may well have been in error. In light of this, in my view, the Crown must produce details of the pointer car procedure to allow the defence to explore the purpose, implementation and police removal of a pointer car designation.
The Evidentiary Background
[4] Cst. Pileggi of the PRP testified at the discovery that while on patrol in her cruiser on June 8, 2018 at 8:46 p.m., she passed a car going the opposite way on a major municipal street. Both vehicles were travelling at a moderate speed, around 30 kilometres an hour. The driver was described by Cst. Pileggi as “a young male, non-white.” According to her evidence, the two made sustained eye contact until they passed one another. This raised her suspicions. The officer did a U-turn and followed the vehicle. She was able to query the vehicle’s licence plate using the computer terminal in her cruiser. The query was both a local PRP computer search and a Canadian Police Information Centre database (CPIC) check. Cst. Pileggi was informed by the computer system that the car and the licence plate was a “pointer car” and associated with a person by the name of Panov alleged to have committed multiple firearms charges. She followed the car to a near-by parking lot and observed the applicant exiting from the driver’s seat. Cst. Pileggi asked him to get back into the car and called for police backup. Eventually, after the officer smelled marijuana, the car was searched and a gun, ammunition and drugs were found.
[5] In response to a defence request, the Crown has disclosed some information but has resisted full disclosure based on relevance and its position that because the evidence is in the hands of the police, not the Crown, the disclosure application should be governed by the third-party O’Connor regime.
[6] The response that Cst. Pileggi received from her query was disclosed by the Crown and was part of the motion record. The first words on the computer read-out were stared in order to get an officer’s attention: “Pointer Vehicle.” It then accurately described the vehicle, a white Chrysler two-door, 2014 model. The information continued on to indicate that the vehicle was associated with a person by the name of Panov. It described him including his tattoos. There were outstanding warrants for Panov including for firearm offences.
[7] Cst. Pileggi’s evidence was unequivocal that she stopped the vehicle because of the pointer designation and the other information on the system about Panov. The purpose of the stop was to ascertain whether the driver was Panov. Cst. Pileggi had limited time to read the complete computer entry but besides the pointer car designation and the outstanding warrants, she also knew that the person the car was associated to was “non-white” and born in the 1990s.
[8] There was some argument during this motion whether the pointer designation reflected a direction to pull over the white car or whether it was merely a notification. For the purposes of the disclosure issue, it makes no real difference.
[9] The defence at the discovery questioned the officer who arrived at the scene in response to the back-up request, Cst. Cipollone. Cst. Cipollone testified that a pointer car designation must be entered into the computer system. A form must be submitted through the chain of command to request the designation. The designation could be for a multitude of things. He testified that having a pointer designation for a serious offence could be sufficient grounds to stop it, depending on the circumstances. Officer Cipollone testified that if there was a pointer designation of a car associated with someone who had just been arrested for drinking and driving, in his view, this was enough to stop the vehicle to perform a sobriety check. Because in the case at hand the pointer was associated with a person suspected of firearms offences, in Cst. Cipollone’s opinion, it was a sufficient reason to stop the vehicle.
[10] The problem was that it appears the pointer designation was out of date and was, consequently, incorrect. On March 5, 2018, PRP officers executed search warrants on Panov’s home and the white Chrysler. Panov was not at home but large quantities of drugs were found. A warrant was issued for his arrest. The vehicle was impounded and searched. The officer-in-charge entered the vehicle as a “pointer” for officer and public safety and because of the seriousness of Panov’s charges.
[11] However, that changed soon after. The police determined that the white Chrysler was owned by a third party. On March 10, 2018, the registered owner picked up the car at the invitation of the police. It seems, however, the pointer designation was never removed from the computer system. There is no evidence on the record why this was not done nor was there evidence explaining the normal procedure for removing a pointer car computer entry.
The Law
[12] What relevance is the evidence with respect to the process of the pointer vehicle designation and removal in this case? Cst. Pileggi testified that she detained the applicant because of the pointer designation, not for any grounds that she herself garnered firsthand. The applicant has the right to make an effective challenge to the grounds underlying his detention. That includes both the proximate reason given by Cst. Pileggi but also the police information at the root of the detention: R. v. Gerson-Forster, 2019 ONCA 405 at para. 84; R. v. Debot, [1989] 2 S.C.R. 1140 (S.C.C.), at pp. 1166-1167; R. v. Stevenson, 2014 ONCA 842, 317 C.C.C. (3d) 385 (Ont. C.A.), at para. 51. Proper grounds for the stop had to exist somewhere within the total store of police knowledge. In law, Cst. Pileggi could rely on the information as the messenger, so to speak: that is, the arresting officer at end of the police informational conduit. But the root of the police information had to be laid bare to enable the defence to ensure the applicant’s Charter rights had been properly respected.
[13] The defence is entitled to explore the original source and nature of the information just as they would in a simple conveyance of grounds from a source officer to an officer deputized to carry out an arrest or detention without specific knowledge of the grounds. The constitutionality of the detention cannot be concealed behind conclusory police explanations. In this case, the reason the pointer vehicle was designated is clear. But what is not clear is why the police did not remove the pointer designation once the car was given back to the rightful owner. Perhaps, as the Crown argues, there is a reasonable explanation why it was not removed. But such a reason is not readily apparent from the record. Not removing the pointer designation could lead to detaining anyone driving the vehicle no matter what the circumstances. That suggests the possibility of a significant Section 9 arbitrary detention problem: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59.
[14] The Stinchcombe first-party disclosure regime requires disclosure of relevant evidence if the evidence is: (i.). in the hands of the Crown; or, if in police hands, is, (ii.) “fruits of the investigation” or, is (iii.) “obviously relevant”: R. v. McNeil (2009), 2009 SCC 3, 238 C.C.C. (3d) 353 (S.C.C.) at paras.14, 17; R v Gubbins, 2018 SCC 44 at paras. 20-24; R. v. Pascal, 2020 ONCA 287 at paras. 106, 129. The evidence here is in the possession of the police. Only the third criteria--obvious relevance--pertains. In my view, it is satisfied. The evidence is obviously relevant, indeed critical, to evaluate the constitutional validity of the detention. In this case, there is no assertion raised of privilege or any other obstacle to the disclosure sought by the applicant.
[15] The issue of the designation of pointer cars on police computer systems is much the same as the issue identified by Justice Paciocco in Gerson-Forster. In that case, a surety warrant for an accused on bail was rescinded but CPIC was mistakenly not updated to delete the warrant. The accused was arrested purportedly on the warrant. An issue arose on appeal with respect to the proper maintenance of the CPIC computer system. Justice Paciocco said at paragraph 98:
State agents maintain CPIC so that it can be used to make decisions that affect liberty interests. CPIC’s impact on the liberty interests of Canadians is arguably far too great to make CPIC a Charter free zone.
[16] The issue here is identical. The Charter being applicable to scrutinize the maintenance of the pointer system on the police computers, disclosure is obviously relevant to facilitate the defence in this endeavour.
[17] The defence requested in writing on May 12, 2020, that the Crown disclose the pointer car evidence. This included both general evidence with respect to the pointer car designation system and case specific evidence. The Crown did not argue with any force that the evidence with respect to the making of the designation was irrelevant and only the facts underneath the failure to remove the designation were relevant. This argument, in my view, would have been parsing the evidence too finely. The entire content of the pointer car designation system should be disclosed.
[18] The evidence will be relevant to whether Section 9 and the cascading breaches to be argued by the defence are established. As well, if the defence succeed in showing a breach, the analysis of the seriousness of the breach under the Section 24(2) analysis may be affected by innate flaws in the pointer designation procedure. Systemic concerns tend to aggravate the seriousness of Charter violations: R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.) at para. 705; R. v. Harrison (2009), 2009 SCC 34, 245 C.C.C. (3d) 86 (S.C.C.) at para. 25; R. v. McGuffie, (2016), 2016 ONCA 365, 336 C.C.C. (3d) 486 (Ont. C.A.) at para. 67. If there is a flaw in the pointer car system or if there was a flaw in how it was implemented in this case, that may well have important implications for the application to exclude the fruits of the search.
[19] In the result, the Crown is ordered to disclose all matters requested in the May 12, 2020 defence email to the Crown.
D.E HARRIS J. Released: July 7, 2020