Court File and Parties
COURT FILE NO.: CR–16– 90000683 DATE: 20200124 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – ANTONY BLACK
Counsel: S. Tsai, for the Crown D. Paton, for the Antony Black
HEARD: December 2 to 6, 9 & 11, 2019
P.J. Monahan J.
I. Introduction
[1] Antony Black was arrested following a motor vehicle stop on October 26, 2014, transported to a nearby police station and subjected to a Level 3 or “strip search”. As a result of the search, police discovered a quantity of heroin, Methyldiethanolamine (MDEA), and marijuana hidden in his socks and underwear. He was charged with various drug-related offenses, obstruction of a police officer, and failure to comply with a term of a probation order. [1]
[2] Mr. Black sought to exclude the drug-related evidence that was obtained through the strip search conducted at the police station on the basis that during his arrest and subsequent strip search, the police violated his rights under ss. 7, 8, 10(b), and 12 of the Canadian Charter of Rights and Freedoms. Mr. Black’s Charter application and the trial proper proceeded before me as a blended hearing.
[3] The Crown’s evidence consisted primarily of testimony from the police officers who were involved in the vehicle stop and the subsequent strip search of Mr. Black at the police station. The Crown also tendered the evidence of an expert with respect to whether the quantity of heroin seized through the strip search was consistent with possession for the purpose of trafficking, and the parties jointly provided an agreed statement of facts. The Defence did not tender any further evidence.
[4] For the reasons that follow, I find that the police officers were justified in stopping Mr. Black’s vehicle and arresting him on a variety of grounds. However, I also find that the officers violated Mr. Black’s right to counsel protected by s. 10(b) by not immediately informing him, upon his arrest, of his right to consult a lawyer. I also find that the search of his vehicle at the roadside was unreasonable and contrary to s. 8 of the Charter. As the Crown decided not to proceed with charges resulting from the evidence seized through the search of Mr. Black’s vehicle, no application was made to exclude that evidence at trial. Nevertheless, in my reasons I have not relied upon the evidence seized through the search of the motor vehicle, namely, the black jacket with a knife in one of the pockets.
[5] In contrast, I find no violation of Mr. Black’s rights with respect to the events which took place at the police station. I find that the police were justified in conducting a strip search of Mr. Black on the basis that he was going to be held in custody and the seriousness of the charges for which he was arrested. Counsel for Mr. Black also concedes that there were adequate grounds to conduct a strip search.
[6] I also find that, although the police officers were required to apply considerable force to Mr. Black in order to complete the search, the use of force was proportionate, reasonable, and necessary in the circumstances. While Mr. Black initially cooperated with the search, he subsequently resisted by kicking, squirming, and fighting with the officers, as well as banging his head on the wall and floor of the interview room. It took four police officers to restrain him. I find that the police actions (including the participation of a female officer as well as the officers carrying Mr. Black to a nearby holding cell) were appropriate and necessary in the circumstances, given the degree of his active resistance. I therefore find that the strip search was carried out in a reasonable manner and did not violate any of Mr. Black’s Charter rights.
[7] I proceed to consider whether the Charter violations which occurred in the course of the vehicle stop should lead to the exclusion of the evidence obtained through the strip search pursuant to s. 24(2) of the Charter. I find that there was no causal, contextual, or temporal connection between the Charter violations which occurred in the course of the roadside stop and the discovery of the drug-related evidence through the strip search. Therefore, the drug-related evidence was not “obtained in a manner” that infringed Mr. Black’s Charter rights, and s. 24(2) of the Charter is not engaged.
[8] In any event, even if there was a sufficient connection between the Charter violations and the discovery of the evidence obtained through the strip search so as to engage s. 24(2) of the Charter, I find that the violation of Mr. Black’s right to counsel was of a minor or technical nature and does not justify the exclusion of evidence. The search of Mr. Black’s motor vehicle was a more serious Charter violation; however, that search was separate and apart from the strip search which occurred at the police station. In seeking approval for the strip search, the arresting officers did not rely upon the evidence obtained through the search of the motor vehicle. Had Mr. Black cooperated with the strip search, it would have been completed without incident, and led to the discovery of the drugs concealed in his clothing.
[9] Taking into account all the relevant circumstances, as well as the values that underlie the Charter, I find that the admission of the drug-related evidence would not bring the administration of justice into disrepute. I therefore conclude that evidence is admissible.
[10] Having admitted the drug-related evidence, there is no dispute that Mr. Black was in possession of the drugs at the relevant time. It is also conceded that the quantity of heroin seized as well as the manner of its packaging was consistent with possession for the purpose of trafficking. Mr. Black is therefore guilty of the drug-related charges. I further find that Mr. Black deliberately provided a false name to the police in the course of the vehicle stop and is therefore guilty of the obstruction charge.
[11] Given these findings, it necessarily follows that Mr. Black is also guilty of violating a term of his probation, namely, that he keep the peace and be of good behaviour.
II. Overview of the Case
a. The Vehicle Stop
[12] At approximately 9:25 PM on the evening of October 26, 2014, Mr. Black was driving a Honda Civic northbound on Weston Road and turned right onto Black Creek Drive. He did not have his vehicle headlights on.
[13] Mr. Black was observed by two police officers, Stacey McCabe and Christopher Ferko, who were travelling in a scout car immediately behind him. Noticing that the Civic did not have its lights on, Officer McCabe ran a check on the vehicle’s license plate. The license plate came back as “missing”. The two officers therefore decided to stop the vehicle and question the driver.
[14] After Mr. Black brought his vehicle to a stop, the two officers asked him to produce his driver’s license, ownership, and insurance documents. [2] Mr. Black provided the plate portion of the vehicle ownership showing an address in Burlington, Ontario, but indicated he did not have his driver’s license or proof of insurance with him. He also indicated that he had just purchased the car the day before and was using license plates given to him by a friend in order to drive it home. When asked to provide his name, he told Officer McCabe that he was “Anthony Denroy Brown”, spelling the names “Denroy” and “Brown”. [3]
[15] The police officers returned to the scout car in order to run some checks of the information Mr. Black provided. The officers were unable to identify Anthony Denroy Brown as a licensed driver.
[16] Officer McCabe then indicated to Mr. Black that she had been unable to identify him with the name he provided. She explained that he was obligated to identify himself to her and that, if he did not do so, he was going to be arrested. [4] Officer McCabe indicated that she was going to give him one more chance to provide her with his name as it appeared on his driver’s license. Mr. Black then stated that his name was “Anthony Denroy Odeen Brown.” Officer McCabe indicated that this answer was unsatisfactory and asked whether he had any document with his name on it. She again warned him that he was required to provide his name as it appears on his license or else he was going to be arrested.
[17] Mr. Black attempted to explain once again why he did not have his license with him and appeared to answer a call on his cell phone. Officers McCabe and Ferko then arrested him, with each officer taking one arm and pushing Mr. Black up against the side of his vehicle. Just at that moment another scout car with two other officers arrived on the scene and they assisted McCabe and Ferko in handcuffing Mr. Black.
[18] Mr. Black then disclosed that his last name was Black rather than Brown. He further claimed that he had already told them his name was Black. Within a few moments, Officer McCabe was able to locate Mr. Black’s driver’s license with his correct name on it in a pouch he had with him.
[19] Officers McCabe and Ferko returned to the scout car to run further checks, leaving Mr. Black in the custody of the other officers who arrived in the second scout car. McCabe and Ferko discovered that there was an outstanding warrant for Mr. Black’s arrest on a charge of robbery, and that he was also on probation. While these checks were being conducted, one of the other officers who had arrived on scene searched Mr. Black’s Honda Civic and discovered a black jacket with ballistic or bullet resistant panels. In one of the jacket pockets was a bandanna and a knife.
[20] Officer McCabe then informed Mr. Black that he was under arrest for robbery, for failure to comply with his probation, and for obstruction of a police officer. They read him his s. 10(b) rights and transported him back to the police station.
b. The Strip Search
[21] After explaining the grounds for Mr. Black’s arrest and the offences with which he had been charged, Officer McCabe sought and received permission from the booking sergeant to conduct a strip search on the basis that they were going to keep Mr. Black in custody and the seriousness of the charges for which Mr. Black was arrested. Because Officer McCabe was a female officer, she did not initially participate in the search. Instead Officer Anthony Tomei, who was on duty at the station that night, assisted Officer Ferko in the search, which commenced at approximately 10:04 PM.
[22] In their evidence, Officers Ferko and Tomei indicated that Mr. Black was initially cooperative during the search. However, when he was asked to remove his socks he refused to do so and then suddenly stuck his right hand down the front of his jogging pants.
[23] The officers could not see Mr. Black’s right hand and they were concerned that he might have a weapon or other contraband concealed in his jogging pants. Officer Ferko grabbed his right arm and attempted to remove his hand from his pants, while Officer Tomei grabbed his left arm to prevent him from inserting it into his pants as well.
[24] When the officers were unable to force Mr. Black to remove his hand from his pants, they began to strike him with their fists on his upper body and his head. Both officers described these blows as “distractionary strikes” designed to force Mr. Black to remove his hand from his pants. They eventually succeeded in forcing him to remove his hand from his pants. However, they were still encountering difficulties restraining Mr. Black as he was kicking and pushing them, banging his head against the wall, and screaming that the officers should “kill him”.
[25] Officer Ferko called out for assistance. Officer McCabe was in a nearby office doing some paperwork, as was Officer Mike Hryhorsky. Both McCabe and Hryhorsky ran into the interview room where the search was being conducted to assist.
[26] The four officers eventually managed to take Mr. Black to the ground and applied handcuffs and leg shackles to him. He continued to resist by kicking his legs, squirming, banging his head on the floor, and screaming. Officer Ferko then cut away his clothing using a pair of scissors. A small plastic baggie containing what is acknowledged to be heroin fell from his socks and a black pouch fell from his underwear. Inside the black pouch were 30 small plastic baggies containing heroin, a plastic baggie containing two MDEA pills, a plastic bag of marijuana, as well as a set of electronic scales.
[27] Mr. Black at this point was entirely naked. Although he was handcuffed and in shackles, he continued to resist and attempted to kick out at the officers. Officer Hryhorsky retrieved a jumpsuit from the booking area and offered it to Mr. Black. However, Officer Hryhorsky testified that Mr. Black refused to put it on.
[28] The decision was made to move Mr. Black to a nearby holding cell where he could be isolated from the police officers and monitored by video camera. Officers Ferko, Tomei, and McCabe carried Mr. Black down the hall to the holding cell. While being carried he was naked, handcuffed, and in leg shackles.
[29] Once in the holding cell, the officers removed the restraints from Mr. Black and quickly exited the cell. The cell video indicates that Mr. Black remained quite agitated for about 10 minutes, pounding or kicking the cell door, and striking or spitting on the video cameras monitoring the cell. Eventually he put on the jumpsuit that the officers left for him.
[30] At approximately 11:30 PM, cell video discloses that Mr. Black had removed the jumpsuit and was standing on a bench in the holding cell. He appeared to be attempting to attach the jumpsuit to the ceiling and pulling on it to see if he could create tension. He also appeared to be attempting to rip a part of the jumpsuit and tie it into a knot. However, after about 10 minutes he ceased this activity, removed the jumpsuit from the ceiling, and jumped down off the bench.
[31] At 12:37 AM on October 27, 2014, the cell video shows a squad of six Emergency Task Force officers bursting into the holding cell and pinning Mr. Black against the wall. The ETF officers apply handcuffs and leg shackles to him and lead him out of the cell.
[32] At about 4 AM on October 27, 2014, Mr. Black is led out of a police scout car and into the police booking hall by two unidentified officers. These officers state that Mr. Black was taken to the hospital and cleared medically to return to the station. He is then led into a nearby holding cell without incident.
III. Charges
[33] Mr. Black has been charged with the following offences:
- possession of heroin for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA);
- possession of heroin, contrary to s. 4(1) of the CDSA;
- possession of MDEA, contrary to s. 4(1) of the CDSA;
- wilfully obstructing a police officer in the execution of her duty, contrary to s. 129(a) of the Criminal Code, R.S.C. 1985, c. C-46; and
- failure to comply with the terms of a probation order, namely, that he keep the peace and be of good behaviour, contrary to s. 733.1(1) of the Criminal Code.
IV. Issues
[34] Mr. Black seeks to exclude the evidence seized through the strip search on the basis that the police officers involved in his arrest and search violated his rights protected by ss. 7, 8, 10(b), and 12 of the Charter. The following issues arise in relation to Mr. Black’s Charter application:
- Did the police officers fail to promptly advise Mr. Black of his right to counsel, contrary to s. 10(b) of the Charter?
- Was the initial search of Mr. Black’s motor vehicle, in which the police officers discovered the jacket containing a knife, unreasonable and contrary to s. 8 of the Charter?
- Was the strip search at the police station conducted in a degrading and humiliating manner, involving the use of excessive force, such that Mr. Black’s rights protected by s. 7, 8, and/or 12 of the Charter were violated?
- In the event that there was a violation of any of Mr. Black’s Charter-protected rights, should the evidence seized as a result of the strip search be excluded at trial?
[35] With respect to the trial proper, Mr. Black concedes that he was in possession of the heroin and MDEA that were seized through the strip search. Therefore, if this evidence is admissible, it follows that Mr. Black is guilty of the first three counts in the indictment. Conversely, if the evidence is not admissible, he is entitled to a finding of not guilty on these three counts.
[36] Mr. Black also concedes that he was on probation at the time of his arrest and that a condition of the probation order was that he keep the peace and be of good behaviour. Therefore, if he is convicted of the first three counts in the indictment, he must also be found guilty of count 5.
[37] The remaining trial issue is whether Mr. Black wilfully obstructed a police officer by providing a false name when asked to identify himself.
V. Was Mr. Black’s Right to Counsel Violated?
[38] Mr. Black maintained that there was a violation of his s. 10(b) right to counsel on the basis that he was not informed of his right to counsel until approximately seven minutes after he was arrested.
[39] The video of the vehicle stop discloses that Mr. Black was arrested at 9:34 PM for obstructing a police officer in that he failed to properly identify himself when requested. He was handcuffed and left in the custody of two officers standing beside his vehicle while officers McCabe and Ferko went back to their scout car to run checks on the driver’s license which they had located. Mr. Black was not advised of his right to counsel upon his initial arrest. It was not until approximately 9:41 PM, when Officers McCabe and Ferko charged Mr. Black with violating his probation and informed him he was also being arrested on a warrant for robbery, that he was read his rights to counsel.
[40] When asked to explain why she did not inform Mr. Black of his rights to counsel immediately upon his arrest, Officer McCabe indicated that at that point she was still not sure of Mr. Black’s correct identity. She went back to her scout car to run further checks to confirm his identity before reading him his rights to counsel.
[41] Section 10(b) of the Charter states that “[e]veryone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”
[42] In R. v. Suberu [5], the Supreme Court of Canada held that the phrase “without delay” for the purposes of s. 10(b) of the Charter means “immediately”. The immediacy of this obligation is subject only to concerns for officer or public safety or reasonable limits that are prescribed by law and justified under s. 1 of the Charter.
[43] At the time of Mr. Black’s initial arrest, there is no suggestion that there was any concern for officer or public safety. Mr. Black was handcuffed with his hands behind his back. He was in the custody of four police officers. There is no reason why Officer McCabe could not have read him his right to counsel and explained to him how he could exercise it.
[44] I therefore find that the failure to immediately advise Mr. Black of his right to counsel violated s. 10(b) of the Charter.
VI. Did the Search of Mr. Black’s Vehicle Violate s. 8 of the Charter?
[45] When Mr. Black was arrested, officers McCabe and Ferko conducted an initial search of a pouch he had in his possession, in which they located his driver’s license. No objection was taken to the validity of this initial search.
[46] However, while Officers McCabe and Ferko were running computer checks on Mr. Black’s driver’s license, one of the two officers who had arrived in the second scout car, Constable Malhi, conducted a search of the motor vehicle. The search resulted in the discovery of a black jacket with ballistic or bullet proof panels. In one of the jacket pockets was a knife. Mr. Black argues that the warrantless search of his motor vehicle was unreasonable and unlawful and a violation of his rights to be secure against unreasonable search and seizure, pursuant to s. 8 of the Charter.
[47] The Crown advances two grounds upon which the search of the motor vehicle could be justified: (i) the search was incident to the lawful arrest of Mr. Black; and/or (ii) the search was a lawful inventory search authorized by s. 221 of the Highway Traffic Act (HTA).
[48] In my view, neither of these grounds provides a justification for the search of the motor vehicle which occurred in this case.
[49] Considering the first ground suggested by the Crown, the common law has long recognized a police power to search incident to a lawful arrest. The rationale for this power is that, assuming the arrest itself is lawful, police are permitted to take appropriate steps to ensure the safety of the police, the accused, and the public; prevent the suspect’s escape; and gather evidence relevant to the grounds for the arrest. [6]
[50] That said, the power to search incident to arrest is subject to important limitations. First, the arrest itself must be lawful; second, the search must be truly incidental to the arrest and not undertaken for some collateral purpose; and third, the search must be carried out in a reasonable manner. [7]
[51] There is no issue taken in this case with the fact that there were lawful grounds to arrest Mr. Black. The question, however, is whether the search of the vehicle was truly incidental to that arrest. In order for a search to be incidental to an arrest, the police must have some reason related to the arrest for conducting the search at the time the search was carried out. [8] At the time of the search, Mr. Black had been charged with obstructing a police officer by giving a false name, but he had not yet been arrested on the warrant for robbery or for breaching his probation.
[52] The Crown tendered the evidence of Officer Davinder Pathak in support of its submission on this issue. Officer Pathak did not himself search the vehicle, but he was present at the time of Officer Malhi’s search. When asked to explain the grounds for the search, he indicated that it was a search for weapons incidental to the arrest of Mr. Black for robbery. When it was pointed out to him that at the time the search was performed, Mr. Black had not yet been arrested for robbery, Officer Pathak then suggested that the search may have been undertaken in order to obtain further documents confirming Mr. Black’s identity. The difficulty with this suggestion is that Officer McCabe had already obtained Mr. Black’s driver’s license and was in the process of running checks on it. In any event, since Officer Malhi did not himself testify, it is speculative to suggest that he was searching the vehicle for identification documents.
[53] I find that there was no valid reason relating to the obstruction charge that would justify the search of the vehicle conducted by Officer Malhi. Therefore, the search cannot be justified on the basis that it was incidental to Mr. Black’s arrest on this particular charge.
[54] The remaining ground the Crown relies on is whether the search can be justified on the basis of s. 221 of the HTA, which provides as follows:
A police officer or an officer appointed for carrying out the provisions of this Act who discovers a vehicle apparently abandoned on or near a highway or a motor vehicle or trailer without proper number plates may take the vehicle into the custody of the law and may cause it to be taken to and stored in a suitable place.
[55] Where a motor vehicle is taken into police custody pursuant to s. 221, police have authority to conduct a search of the vehicle to inventory the property in the vehicle. Officer Pathak suggested that Officer Malhi’s search of the vehicle may have been undertaken in order to inventory the contents, and was justified on this basis.
[56] In my view, however, neither Officer Malhi nor Pathak can rely upon s. 221 in order to justify the search of Mr. Black’s vehicle. I note that s. 221 only applies in cases where a police officer discovers a vehicle “apparently abandoned… or… without proper number plates.” There is no suggestion that Mr. Black had abandoned his vehicle. While it is true that the vehicle did not have proper license plates, this was not known to Officers Malhi or Pathak at the time. All they were told when they arrived on scene was that Mr. Black had provided an incorrect name to officers McCabe and Ferko. Therefore, neither Officer Malhi nor Pathak had authority to impound the vehicle on the basis that it did not have proper number plates. This means they could not rely upon s. 221 of the HTA in order to justify a search of Mr. Black’s vehicle.
[57] In any event, even if these officers could have brought themselves within the scope of s. 221, I see no basis upon which it can be maintained that Officer Malhi was conducting an inventory search of the vehicle. He did not purport to record or catalogue the vehicle contents. Rather, he conducted a brief search in which he located and seized the black jacket. There is simply no evidence in the record to support the assertion that Officer Malhi was searching the vehicle in order to record and safeguard its contents.
[58] I therefore find that neither of the grounds advanced by the Crown is sufficient to justify the warrantless search of the motor vehicle. It was therefore an unlawful search which violated Mr. Black’s s. 8 right to be secure against unreasonable search and seizure.
VII. Did the Strip Search violate Mr. Black’s rights under s. 7, 8, or 12 of the Charter?
[59] Counsel for Mr. Black conceded that there was lawful authority to conduct a strip search at the police station, given the fact that Mr. Black had been arrested for robbery and had a criminal record that included crimes of violence. Mr. Black was also going to be held in custody with other prisoners. The booking hall video records the fact that Officer McCabe sought and obtained the approval of the booking sergeant to conduct the strip search on these bases. I find that there were sufficient grounds for the officers to conduct the strip search, in accordance with the principles identified in R. v. Golden [9].
[60] It is also clear that the search was initiated and was intended to be carried out in accordance with the guidelines set out in Golden [10]. The strip search was to take place in a private area of the station, such that no one other than the individuals engaged in the search could observe it. The officers tasked with carrying out the search, namely Officers Ferko and Tomei, were of the same gender as Mr. Black. Officer Ferko testified that it was his normal practice, which he followed in this case, to invite the person being searched to remove his or her own clothing rather than have the clothing forcibly removed by the officers. Moreover, Officer Ferko indicated that it was not intended that Mr. Black would ever be fully naked during the search; instead Mr. Black would be invited to remove clothing from certain areas of his body and then, following a visual inspection, put that clothing back on before proceeding to remove his clothing from other areas. Thus, while any strip search inevitably involves a serious infringement of privacy and personal dignity, the procedures which the police intended to follow in this case were calculated to minimize that indignity.
[61] Unfortunately, the search did not go as planned. As described above, Mr. Black struggled and fought with Officers Ferko and Tomei such that they found it necessary to apply force and call for assistance in restraining him.
[62] Counsel for Mr. Black acknowledged that his client actively resisted the search. However, he maintained that the police applied excessive force and conducted the search in a way which needlessly humiliated and demeaned Mr. Black. In particular, counsel took issue with the following aspects of the strip search:
- counsel argued that Officers Ferko and Tomei applied excessive force in punching Mr. Black with closed fists on his upper body and head;
- counsel objected to the involvement of Officer McCabe, a female officer, in the strip search. Counsel conceded that Officer McCabe may have been justified in responding to Officer Ferko’s initial call for assistance. However, counsel argued that once the handcuffs and leg shackles were applied to Mr. Black and his clothing was cut off, it was no longer appropriate for Officer McCabe to continue to participate in the search and she should have stepped aside;
- counsel argues that carrying Mr. Black from the interview room to the holding cell in handcuffs and leg shackles, while he was naked, was needlessly humiliating and degrading. This was compounded by the fact that a female officer participated in carrying him, as well as by the fact that Mr. Black was captured on video as he was carried through the booking hall and into the holding cell.
[63] Counsel for Mr. Black also notes that prior to the commencement of the search, there was an indication that his client had mental health issues. Mr. Black had told the booking sergeant that “they say that I am crazy. They said I got mental health, bro.” Mr. Black also stated that “they say that I was demon possessed.” Counsel takes issue with the fact that none of the police officers took into account these mental health concerns in their treatment of Mr. Black.
[64] I consider each of these objections in turn.
a. Did Officers Ferko and Tomei apply excessive force by punching Mr. Black?
[65] The Crown concedes that it is regrettable that Officers Ferko and Tomei found it necessary to apply physical force to restrain Mr. Black in the course of the strip search, but maintains that their actions were necessary and justified in the circumstances.
[66] The Crown argues that the use of force by the officers in this case falls squarely within the parameters of s. 25 of the Criminal Code, which provides in relevant part as follows:
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law… as a peace officer… is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.
[67] The scope of s. 25 was clarified by the Supreme Court of Canada in R v. Nasogaluak [11]. Justice Lebel, who wrote a unanimous opinion on behalf of the Supreme Court, noted that while the police may at times have to resort to force, s. 25 requires that any force used satisfy the principles of proportionality, necessity, and reasonableness. Justice Lebel cautioned that the courts must guard against “the illegitimate use of power by the police against members of our society, given its grave consequences.” [12]
[68] Justice Lebel further observed that the officer’s belief that it was necessary to apply force, and that he or she only applied as much force as was necessary in the circumstances, must be objectively reasonable. At the same time, Lebel J. noted that police action should not be judged against a standard of perfection, since “police engage in dangerous and demanding work and often have to react quickly in emergencies. Their actions should be judged in light of these exigent circumstances.” [13]
[69] Counsel for Mr. Black argues that Officers Ferko and Tomei applied excessive force when they punched Mr. Black in the body and head in an effort to gain control of his right hand. Counsel acknowledges that the officers’ actions might well have been justified if Mr. Black had actually put his right hand down the front of his jogging pants. But counsel takes the position that the officers were lying when they made this claim and that Mr. Black merely put his right hand in front of his jogging pants, rather than into his pants.
[70] In making this claim, counsel for Mr. Black relies upon the evidence of Officer Hryhorsky, who came into the interview room to assist Officers Ferko and Tomei. In his evidence, Hryhorsky stated that when he entered the room, he observed Officer Ferko holding Mr. Black’s right hand against his chest. Officer Hryhorsky testified that Officer Ferko told him that Mr. Black “keeps going for the front of his pants” and that the officers were concerned that Mr. Black may have a concealed weapon.
[71] Counsel for Mr. Black emphasizes Officer Ferko’s statement that Mr. Black was going for the front of his pants, as opposed to into his pants. He argues that Officer Hryhorsky’s evidence contradicts Officer Ferko and Tomei’s claim that Mr. Black put his right hand into his jogging pants. Based on Officer Ferko’s statement to Hryhorsky, he concludes that Officers Ferko and Tomei were lying when they testified that Mr. Black reached into his pants.
[72] There is no dispute over the fact that by the time Officer Hryhorsky entered the room, Ferko and Tomei had succeeded in forcing Mr. Black to remove his hand from his jogging pants. Ferko, Tomei, and Hryhorsky were all agreed on this point. The issue is what significance should be attached to what was said by Officer Ferko when Hryhorsky entered the room.
[73] When Officer Ferko was first questioned as to what he told Officer Hryhorsky, he stated that he had mentioned to Hryhorsky that Mr. Black “had been reaching down the front of his pants”. Later in his cross-examination, it was suggested to Officer Ferko that his evidence on this point was inconsistent with that of Officer Hryhorsky. Counsel for Mr. Black read from the transcript of Officer Hryhorsky’s evidence at the preliminary inquiry, in which officer Hryhorsky testified that Officer Ferko told him that Mr. Black “keeps going for the front of his pants.” Counsel argued that there was a material difference between Mr. Black going “for the front of his pants” as opposed to going “down the front of his pants” since, in the former case, Mr. Black’s hand would have remained visible to the officers. Officer Ferko maintained that he said Mr. Black was reaching “down the front of his pants.”
[74] In considering the weight to be attached to what Officer Ferko said when Hryhorsky entered the room, I make two observations. First, this statement must be viewed in its proper context. Ferko was not calmly explaining to Hryhorsky what Mr. Black had been doing before Hryhorsky arrived. Rather, Ferko was engaged in an intense physical struggle in which he and Officer Tomei were trying to gain control of Mr. Black. In fact, Officer Ferko’s main concern at that point was to alert Officer Hryhorsky to the possibility that Mr. Black may have a weapon in his pants. The issue of whether Mr. Black had put his hands into his pants, as opposed to in front of his pants, was of secondary importance.
[75] Second, whatever Officer Ferko’s may have said when Officer Hryhorsky entered the interview room must be considered in light of the totality of the evidence. Of particular importance is the fact that both Officers Ferko and Tomei maintained throughout their evidence that Mr. Black had put his right hand down the front of his jogging pants. Their evidence was clear and consistent, and neither officer was shaken in cross-examination.
[76] I find their evidence on this point to be credible. In that regard, I find it significant that both officers acknowledged having struck Mr. Black in the face. This admission against interest tended to enhance their credibility. If the officers were lying as to what occurred in the interview room, why would they admit to having struck Mr. Black in the face? Officer Tomei was particularly credible in that he acknowledged that he struck Mr. Black “as hard as he could”. For his part, Officer Ferko admitted having struck Mr. Black in the face more than once. It would have been easy for Ferko or Tomei to have attempted to minimize the manner in which they struck Mr. Black. The fact they did not do so supports a finding that they were testifying in a truthful manner.
[77] I also find it significant that neither Ferko nor Tomei could recall whether their colleague struck Mr. Black in the face while they were trying to get him to remove his hand from his pants. This tended to negate any inference that the officers colluded or collaborated in their testimony.
[78] I accept Officer Ferko and Tomei’s evidence and find that Mr. Black did stick his right hand down the front of his jogging pants. I further find no material inconsistency between Officer Ferko and Tomei’s evidence and that of Officer Hryhorsky. Even if Officer Ferko told Hryhorsky that Mr. Black was “going for the front of his pants”, in the circumstances the statement is ambiguous and could include Mr. Black having actually reached into his pants.
[79] The officers’ fear that Mr. Black had a weapon in his pants and could cause them grievous bodily harm was therefore objectively reasonable. I further find that the officers did not use more force than was necessary in the circumstances in order to restrain Mr. Black. Although both Officers Ferko and Tomei acknowledged having struck Mr. Black hard with their fists on his upper body and head, they ceased striking him once he removed his hand from his pants. In that regard, I would point out that in Nasogaluak [14], the Supreme Court of Canada upheld a finding by the trial judge that police officers were justified in punching a driver of a motor vehicle in the head in order to prevent him from driving away. It was only when the driver was removed from the vehicle and pinned on the ground that the continued punching by the police officers was found to be excessive. In contrast, in the present case the police officers ceased striking Mr. Black once they succeeded in removing his hand from his pants, even though they had not yet managed to gain complete control of him.
[80] In Nasogaluak, the Supreme Court also found it relevant that the officers in that case broke two of Mr. Nasogaluak’s ribs and punctured his lung. In this case, it appears from the video from the holding cell as well as in the booking hall at 4 AM on October 27, 2014, that Mr. Black may have suffered a bleeding nose, but that he did not otherwise sustain any injuries.
[81] I conclude that Officers Ferko and Tomei did not use excessive force in punching Mr. Black in order to force him to remove his hand from his jogging pants. Their actions were therefore justified in accordance with s. 25(1) and (3) of the Criminal Code and did not violate any of Mr. Black’s Charter-protected rights.
b. Was the involvement of Officer McCabe in the efforts to restrain Mr. Black appropriate?
[82] Counsel for Mr. Black argues that the involvement of a female officer, Officer McCabe, in the strip search of Mr. Black was humiliating and demeaning. While counsel acknowledges that Officer McCabe may have been justified in responding to Officer Ferko’s initial call for assistance, once Mr. Black was handcuffed and shackled and his clothing cut off, she should have stepped aside and allowed other male officers who were nearby to complete the search.
[83] As the Supreme Court of Canada noted in Golden [15], strip searches should generally be conducted by officers of the same gender as the individual being searched. However it is also clearly established that in emergency or exigent circumstances, officers of a different gender may be involved in a strip search of a prisoner to the extent made necessary by the conduct of the prisoner. As Strayer J concluded in Weatherall v. Canada (Attorney General) [16], the involvement of female officers in strip searches of male prisoners is permissible in the case of a “true emergency where the security of the institution generally, or of particular officers or inmates, is seriously endangered or where the lack of sudden action would likely enable the concealment, importation, or passing of contraband.”
[84] In this case, it is clear that the resistance of Mr. Black constituted a “true emergency” in the sense described by Strayer J in Weatherall. As I have earlier found, Officers Ferko and Tomei reasonably feared for their own safety, as well as for the safety of Mr. Black, who was banging his head on the wall and floor and calling on the officers to kill him. I find that Officer McCabe was entirely justified in responding to Officer Ferko’s call for assistance.
[85] All four of the officers involved in the efforts to restrain Mr. Black made it quite clear that he did not cease resisting and fighting them until he was transported to the holding cell. As such, the exigent circumstances continued throughout that entire period of time. I also find that Officer McCabe was acting in good faith throughout the time she was involved in attempting to restrain Mr. Black.
[86] As the Court of Appeal cautioned in R. v. Amofa [17], a reviewing court should resist the impulse to engage in “an over-analytical parsing of events into static moments without a practical regard for the overall picture.” With the benefit of hindsight, it might have been preferable for Officer McCabe to have attempted to enlist another male officer to take her place, assuming she saw the opportunity to do so.
[87] But this was not a controlled scrimmage in which a referee was available to call timeout to permit substitutions. Officer McCabe was reacting in real time to a dangerous and challenging situation which could have involved serious injury to her fellow officers as well as to Mr. Black. I find nothing inappropriate in the fact that she continued to assist her colleagues in the efforts to restrain Mr. Black until such time as he had been transported to the holding cell. Her involvement did not violate any Charter-protected right of Mr. Black.
c. Were the officers justified in carrying Mr. Black, while he was naked, in handcuffs and leg shackles, from the interview room to the holding cell?
[88] Carrying Mr. Black from the interview room to the holding cell while he was naked and in handcuffs and leg shackles was obviously an extremely humiliating and degrading experience. This treatment of Mr. Black requires close scrutiny.
[89] In his testimony, Officer Ferko indicated that there were a number of reasons why the officers decided to move Mr. Black from the interview room to the holding cell. First, Officer Ferko indicated that it was not feasible or desirable to leave Mr. Black in the interview room. Even though he was handcuffed and in leg shackles, he continued to resist and struggle with the officers. In Officer Ferko’s view, it was desirable to separate Mr. Black from the officers so that he would have an opportunity to calm himself down and regain his composure. By moving him to the holding cell, the officers could leave Mr. Black on his own, with his restraints removed, and he could be provided with some clothing.
[90] Officer Ferko further explained why it was not possible to leave Mr. Black on his own in in the interview room. The room was not equipped to serve as a holding cell. There was no surveillance camera to permit monitoring of a prisoner and no washroom facilities. If Mr. Black was left alone in the interview room for a brief period, the officers would have had to re-enter the room at some point, attempt to regain control of him, and then move him to the holding cell. Better to do that immediately, rather than risk injury to themselves or Mr. Black by leaving him in the interview room, and then later attempt to move him to the holding cell.
[91] Officer Ferko also indicated that the decision to move Mr. Black to the holding cell would have been approved by the officer in charge at the station. However, he cannot specifically recall any conversation he may have had regarding the decision to move Mr. Black.
[92] Before moving Mr. Black to the holding cell, Officer Hryhorsky located a jumpsuit and offered it to Mr. Black. However, Officer Hryhorsky testified that Mr. Black refused the opportunity to put on the jumpsuit and continued to resist the officers. They therefore decided to carry him naked to the holding cell, remove his restraints there, and leave the jumpsuit for him to put on. Officers Ferko and McCabe testified that while they were carrying Mr. Black, he continued to struggle and resist them. Moreover, when his restraints were removed in the holding cell, Mr. Black can be seen on the surveillance video attempting to strike the officers with his left hand. The officers exited quickly and were able to avoid being struck by Mr. Black.
[93] It is highly regrettable that the officers found it necessary to carry Mr. Black to the holding cell naked and in restraints. Nevertheless, I accept Officer Ferko’s evidence to the effect that it was not feasible or practical to leave Mr. Black in the interview room. Mr. Black continued to resist and fight the police officers and refused the opportunity to put on a jumpsuit. In these circumstances, the preferred alternative was to carry Mr. Black to the holding cell, remove his restraints, and allow him to regain his composure.
[94] I therefore find that there was no violation of Mr. Black’s rights by the manner in which he was moved from the interview room to the holding cell.
d. Did the Officers violate Mr. Black’s rights by failing to take proper account of his mental health status?
[95] While Mr. Black was being transported to the police station, he indicated to Officers Ferko and McCabe that he was taking medication. He also expressed suicidal thoughts. Once he arrived at the station, Mr. Black told the booking sergeant that he had mental health issues. The question is whether the officers violated his rights by failing to take account of the mental health concerns he expressed.
[96] Certainly, the officers were required to have regard to potential mental health concerns in any decisions they might have made regarding their treatment of Mr. Black. But the fact that Mr. Black may have had mental health concerns did not mean that he should be exempted from an otherwise lawful strip search. In fact, it could be argued that given the possibility of mental health issues, it was all the more important to ensure that Mr. Black did not have any weapons, for his own safety as well as that of other prisoners and police.
[97] In this case, Mr. Black began fighting and resisting the officers shortly after his arrival at the police station and within minutes of the commencement of the strip search. There was simply no time to make any decisions that would have accommodated Mr. Black’s mental health issues. I see no basis for concluding that the officers treated Mr. Black in a manner which failed to take adequate account of his mental health condition.
VIII. Should the Evidence obtained through the Strip Search be excluded on the basis of the Charter violations which occurred during the roadside vehicle stop?
[98] I have found that the delay in informing Mr. Black of his right to counsel violated his s. 10(b) Charter rights. I have also found that the search of his motor vehicle, which resulted in the seizure of a black jacket and a knife, was unreasonable and a violation of his rights protected by s. 8 of the Charter. It is therefore necessary to consider whether these Charter violations should lead to the exclusion of the evidence obtained through the strip search pursuant to s. 24(2) of the Charter.
a. Governing Principles
[99] Section 24(2) of the Charter provides that, where evidence was obtained in a manner that infringes or denies any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, its admission in the proceedings would bring the administration of justice into disrepute.
[100] Section 24(2) is only engaged where evidence has been “obtained in a manner that infringes or denies any rights or freedoms guaranteed by the Charter.” Courts have taken a generous approach to the interpretation of the “obtained in a manner” requirement of s. 24(2). [18] The “obtained in a manner” requirement will be satisfied if there is any sufficiently strong causal, contextual, or temporal connection, or combination thereof, between the Charter infringement and the evidence obtained. Where the evidence obtained and the Charter breach form part of the same transaction or course of conduct, such evidence will be regarded as having been obtained in breach of Charter rights. However, where the connection between the evidence and the breaches is merely tenuous or remote, s. 24(2) will not be engaged. [19]
[101] In cases where evidence has been obtained in a manner that infringes the Charter, the court must proceed to assess and balance the effect of admitting the evidence on society’s confidence in the justice system. In R. v. Grant [20], the Supreme Court of Canada indicated that there were three prongs to this analysis:
- 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 the adjudication of the case on its merits.
[102] Under the first prong of this test, namely, the seriousness of the Charter-infringing state conduct, the court must consider whether the admission of the evidence would send a message to the public that the courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct leading to the Charter violation, the greater the need for the courts to dissociate themselves from the conduct by excluding the evidence. The goal is not necessarily to punish the police or deter Charter breaches, but rather to preserve public confidence in the rule of law and its processes. [21]
[103] With respect to the second prong of the governing test, the impact of the Charter violations, the court must assess the extent to which the breach undermined the Charter-protected interests of the accused. As with the first prong of Grant, this requires a consideration of the degree of seriousness of the impact on protected Charter rights. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual or practical significance.
[104] Under the third prong of analysis, the court must consider whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. Although this third line of inquiry typically pulls toward inclusion of the evidence, in order to further the societal interest in an adjudication on the merits, this will not always be so. As the Supreme Court of Canada observed recently in R. v. Le [22], “[a]n ‘adjudication on the merits’, in a rule of law state, presupposes an adjudication grounded in legality and respect for long-standing constitutional norms.”
[105] These three lines of inquiry cannot be applied with mathematical precision according to a fixed formula. Rather, what must be considered is the overall impact that admission of the evidence would have upon the reputation of the administration of justice. This necessarily requires a qualitative assessment of the totality of the circumstances. [23]
b. Application of the Principles
1. Was the evidence seized as a result of the strip search “obtained in a manner” that infringed a Charter right?
[106] The Charter breaches which I have identified occurred in the course of the vehicle stop. Namely, the arresting officers violated Mr. Black’s s. 10(b) right to counsel by failing to immediately advise him upon arrest of his right to counsel. The arresting officers also violated Mr. Black’s s. 8 rights by unlawfully searching his motor vehicle. The question is whether there is a sufficient causal, contextual, or temporal connection between these breaches and the evidence obtained through the strip search at the police station, such that s. 24(2) is engaged.
[107] I see no causal connection between the Charter breaches which occurred during the course of the vehicle stop and the evidence obtained through the strip search. A causal connection requires a ‘but for’ analysis which concludes that the evidence obtained through the strip search would not have been found but for the Charter breaches during the vehicle stop. The evidence obtained through the strip search were discovered as a result of Mr. Black being lawfully arrested and held in custody. No admissions were made by Mr. Black when he was denied his rights to counsel that grounded the officers’ decision to arrest and strip search him.
[108] While the discovery of a knife in Mr. Black’s vehicle could have been improperly used to inform the decision to strip search Mr. Black, it was not. Mr. Black was not strip searched immediately incidental to arrest for the purpose of preserving evidence or locating weapons. Rather, Mr. Black was strip searched as a consequence of the decision to hold him in custody, where there is a need to ensure that he is not concealing weapons or illegal drugs, and the seriousness of the charges for which he was arrested. The strip search was thus not ordered because the officers located the jacket and knife in Mr. Black’s motor vehicle, but for the fact that he was to be held in custody as a consequence of his lawful arrest.
[109] Likewise, I see no contextual connection between the Charter breaches and the evidence obtained through the strip search. The operative question in the contextual analysis is whether the two events, the Charter breaches during the vehicle stop and the discovery of evidence through the strip search, can be considered to have occurred in the same transaction or course of conduct. [24] For this inquiry, I am mandated to look into the entire chain of events during which the Charter violation occurred and the evidence was obtained. No contextual connection will be made out where the breach is too remote or severable from the process culminating in the discovery of the impugned evidence. [25] Moreover, intervening events may break the contextual connection between the Charter breach and the discovery of the evidence. [26]
[110] Here, intervening events broke the chain between the Charter breaches and the discovery of the impugned evidence, and where they did not, the Charter breaches are too remote and severable. The transaction of the Charter breach which commenced with the failure of the arresting officers to read Mr. Black his rights to counsel upon arresting him under the HTA was broken by the decision to arrest Mr. Black for robbery, failure to comply with his probation, and for obstruction of a police officer, a decision made once Mr. Black’s real identity was revealed. Mr. Black was promptly read his rights to counsel during this latter arrest. The strip search which was authorized by the booking sergeant was not so authorized as a result of the HTA arrest, during which Mr. Black’s right to counsel was violated, but authorized on the basis of the decision to hold Mr. Black in custody for the latter arrest. As such, the transaction commenced with the s. 10(b) Charter breach was broken when a new arrest was effected.
[111] For similar reasons, I find that the search of the motor vehicle was severable from the discovery of evidence during the strip search. Once again, Mr. Black was strip searched as a result of the decision to hold him in custody for the offences with which he was charged. The discovery of a knife inside a jacket with ballistic or bullet proof panels did not inform the decision to arrest, hold, or strip search Mr. Black. As such, I find that the unconstitutional search of Mr. Black’s vehicle is severable from the chain of events which culminated in the discovery of the impugned evidence.
[112] Finally, there is clearly a temporal connection between the Charter breaches and the discovery of the impugned evidence. Mr. Black’s right to counsel was violated at approximately 9:34 PM and his right to be free from unreasonable search and seizure was violated between 9:34 PM and 9:41 PM. The impugned evidence was discovered shortly after 10:04 PM when the strip search commenced. However, the presence of a temporal connection is not determinative in situations where the breach of the Charter right is too remote from the discovery of the evidence. [27] For the reasons discussed above, I find that the breaches of ss. 8 and 10(b) are too remote from the discovery of the evidence through the strip search for the temporal connection to be determinative in establishing a link between the violation of the Charter and the discovery of the evidence.
[113] I conclude that there is no sufficient causal, contextual, or temporary connection between the Charter breaches which occurred in the course of the vehicle stop and the evidence obtained through the strip search. Accordingly, I find that the impugned evidence was not “obtained in a manner” that violated the Charter. This ends the s. 24(2) inquiry.
[114] However, in the event that I am mistaken in this conclusion, I proceed to consider the three prongs of the s. 24(2) analysis as outlined in Grant.
2. The seriousness of the Charter-infringing state conduct
[115] Counsel for Mr. Black concedes that the violation of Mr. Black’s s. 10(b) rights was minimal and of a technical nature. It consisted of a delay of approximately seven minutes following his arrest for obstructing a police officer, during which time Officers McCabe and Ferko were running computer checks on his driver’s license. The officers did not question Mr. Black, who was left in the custody of Officers Malhi and Pathak.
[116] The circumstances in this case are analogous to those in R. v. Culotta [28]. In that case there was a delay of approximately 31 minutes before the accused was informed of her right to counsel. Nordheimer JA emphasized that no statements were sought or taken while the accused was under arrest nor was any other information obtained from her during this period.
[117] I therefore find that the s. 10(b) violation in this case was of a minor nature.
[118] The warrantless search of Mr. Black’s vehicle was more serious. Given the limited information available to Officer Pathak at the time, he had no grounds to search the vehicle. Officer Pathak did not testify, from which I draw a negative inference that the search was an attempt on his part to locate evidence of further offences involving Mr. Black.
[119] This would support the exclusion of the evidence obtained from the search of Mr. Black’s motor vehicle. However, the Crown has not sought to rely upon that evidence which, in effect, provides a remedy for the improper search of the motor vehicle.
[120] I conclude this factor gives little support to the exclusion of the evidence obtained through the strip search.
3. Impact of the police conduct on the accused’s Charter-protected interests
[121] Counsel for Mr. Black concedes that the violation of Mr. Black’s right to counsel had a minimal impact upon him. Officers McCabe and Ferko did not attempt to profit from the brief seven-minute delay by obtaining statements or other evidence against him.
[122] The unreasonable search of Mr. Black’s vehicle did result in the discovery of incriminating evidence. However, given the fact that the Crown elected not to proceed with charges resulting from the seizure of that evidence, the impact of this breach on Mr. Black’s rights was minimal. I would also observe that the drug-related evidence obtained through the strip search would have been inevitably discovered by the police officers, since they had lawful grounds to conduct that search. As the Supreme Court concluded in Grant [29], the more likely it is that the evidence would have been obtained even without the Charter breach, the lesser the impact of the breach on the accused’s rights.
[123] I conclude this factor tends to support the admission of the evidence obtained through the strip search.
4. Society’s interest in the adjudication of the case on its merits
[124] The charges against Mr. Black are serious and the physical evidence is highly reliable. Moreover, if the evidence obtained through the strip search is excluded, it will bring an end to the Crown’s case. This factor tends to support the admission of the evidence.
5. Balancing the factors
[125] Even assuming that the evidence seized as a result of the strip search was “obtained in a manner” that infringed the Charter, the Charter breaches which I have found were either minor (i.e. the s. 10(b) breach) or have been remedied through the exercise of Crown discretion (i.e the decision not to proceed with the evidence obtained through the unlawful search of Mr. Black’s motor vehicle). The strip search would have proceeded in an unobjectionable fashion and resulted in the discovery of the drug-related evidence, but for Mr. Black’s attempt to resist and evade the search. In this context, I do not believe that the admission of the drug-related evidence would send a message to the public that courts condone serious state misconduct. In fact, the exclusion of this reliable and highly probative evidence would, in my view, tend to undermine public confidence in the administration of justice.
[126] I find that a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would conclude that admission of the evidence obtained through the strip search would not bring the administration of justice into disrepute. The evidence is therefore admissible.
IX. Trial Proper
[127] Given the admission of the drug-related evidence, it is conceded that Mr. Black was in possession of the heroin and the MDEA at the relevant time. It is further conceded that the quantity of heroin seized as well as the manner of its packaging was consistent with possession for the purpose of trafficking. Mr. Black is therefore guilty of counts 1 to 3 in the indictment. He is also guilty of failing to comply with the term of a probation order, namely, that he keep the peace and be of good behaviour.
[128] The only remaining issue is whether the Crown has proven that Mr. Black wilfully obstructed Officer McCabe in the execution of her duty, contrary to s. 129(a) of the Criminal Code. The conduct giving rise to this charge is the failure of Mr. Black to properly identify himself during the course of the vehicle stop, and by providing a false name to Officer McCabe.
[129] An individual who wilfully fails to identify him or herself to a police officer when obliged to do so has obstructed that officer contrary to s. 129(a) of the Criminal Code. [30] Drivers of motor vehicles in Ontario are required to surrender their driver’s license to a police officer upon demand and, where unable to do so, must identify themselves to the officer. [31]
[130] I find that Mr. Black provided Officers McCabe and Ferko with a false name in an effort to avoid being arrested and searched. When he was first questioned, he told the officers his last name was “Brown”, and he spelled the name for the officers. When they resumed questioning him a few moments later after checking the name “Brown”, Mr. Black said, “All right, so I am on a database.” Once the officers arrested him, he immediately gave his correct last name.
[131] What this makes plain is that Mr. Black provided a false name quite deliberately. He was concerned that the officers might discover he was “on a database”, which could lead to his arrest and eventual search. His ultimate concern was to avoid the discovery of the drugs he had hidden in his clothing.
[132] I therefore find that Mr. Black wilfully provided a false name to Officer McCabe when obliged to properly identify himself. He is therefore guilty of the offence of obstruction of a police officer in the execution of her duty, contrary to s. 129(a) of the Criminal Code.
X. Disposition
[133] Mr. Black is guilty of the five offences with which he has been charged.
P. J. Monahan J. Released: January 24, 2020
Footnotes
[1] Mr. Black was also initially charged with carrying a concealed weapon, as well as breach of a term of his probation that he not possess weapons. These charges were based upon evidence seized as a result of the search of his motor vehicle at the roadside. However, at the commencement of trial the Crown indicated that it did not wish to proceed with these counts in the indictment.
[2] The interactions between Mr. Black and the police officers were captured on the scout car’s In-Car-Camera system, thus providing a clear record of what occurred during the vehicle stop.
[3] I note that Mr. Black's first name is "Antony" rather than "Anthony". However, Officer McCabe did not ask Mr. Black to spell his first name, and she understood it to be "Anthony".
[4] I note that the combined effect of ss. 33(3) and 217(2) of the Highway Traffic Act, RSO 1990, c. H-8 (HTA) is to provide express statutory authority for a police officer to arrest a driver who is unable or refuses to surrender his or her license, and who fails to provide reasonable identification upon request.
[5] R. v. Suberu, 2009 SCC 33, 2 S.C.R. 460, at paras. 41 and 2.
[6] R. v. Fearon, 2014 SCC 77, 3 SCR 621, at paras. 16-18.
[7] R. v. Caslake, [1998] 1 SCR 51, at para. 14.
[8] Caslake, at para. 25.
[9] 2001 SCC 83, 3 SCR 679, at paras. 92-99.
[10] Golden, at para 101.
[11] 2010 SCC 6, 1 SCR 206.
[12] Nasogaluak, at para. 32.
[13] Nasogaluak, at paras. 34-35.
[14] Nasogaluak, at para 36.
[15] Golden, at para 101.
[16] Weatherall v. Canada (Attorney General) (1987), [1988] 1 F. C. 369, at para 54. See also R. v. Desjourdy, 2013 ONCJ 170, at para. 104 (male police officer using safety scissors to cut off a female prisoner’s shirt and bra did not involve excessive force, given her volatile, uncooperative, and assaultive behaviour); R. v. Howlett, [2017] O.J. No. 3662 (Ont. C.J.), at paras 51-56 (the presence of two female correctional officers during the strip search of a male prisoner was justified given the exigent circumstances).
[17] 2011 ONCA 368, at para. 19.
[18] R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 50-56.
[19] Pino, at paras. 72-74.
[20] R. v. Grant, 2009 SCC 32, 2 SCR 353, at paras. 108-110.
[21] R. v. Boussoulas, 2014 ONSC 5542, at para. 157, affirmed, 2018 ONCA 222.
[22] R. v. Le, 2019 SCC 34, at para. 158.
[23] See the analysis of Brown J.A. in R. v. Omar, 2018 ONCA 975, at paras. 108-121, subsequently affirmed in R. v. Omar, 2019 SCC 32.
[24] R. v. Strachan, [1988] 2 S.C.R. 980, at pp. 1005-1006; Pino, at paras. 52-55.
[25] R. v. Grant, [1993] 3 S.C.R. 223, at p. 255.
[26] R. v. Kokesch, [1990] 3 S.C.R. 3, at p. 19.
[27] Strachan, at pp. 1005-1006.
[28] 2018 ONCA 665, at para. 65.
[29] Grant, at para. 122.
[30] R. v. Moore, [1979] 1 S.C.R. 195.