COURT FILE NO.: 19-192
DATE: 2021-01-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
T. Mimnagh, for the Applicant
Applicant
- and -
Brandon Drakes-Simon
J. Goldlist, for the Respondent
Respondent
HEARD: November 9, 10, 12, 2020
RULING
The Honourable Mr. Justice A. C. R. Whitten
On January 7, 2021 through a ZOOM virtual hearing, the court announced that the motion to exclude evidence was unsuccessful and that the court would admit certain items into evidence. This Ruling, which was not available at that time, contains the reasons behind the court's decision.
I) INTRODUCTION
[1] The applicant, Mr. Brandon Drakes-Simon (DS) has moved before the court to have the cocaine, fentanyl, and money found on his person excluded from the evidence pursuant to s. 24(2) of the Charter, by reason that he was a) subjected to unreasonable searches, items were unreasonably seized contrary to s. 8; b) he was arbitrarily detained contrary to s. 9; and c) both the informational and implementation aspects of his right to counsel as granted by s. 10, were violated.
II) POSITION OF THE PARTIES
Applicant
[2] The applicant has asserted that the initial seizure of his identification when he was a passenger in a car operated by Persaud was an unlawful seizure. The subsequent searching of DS as he was cuffed beside the vehicle it is contended was an unlawful strip search. The seizure of cocaine was as a consequence of that unlawful search. That roadside detention was unreasonable, and the arresting officer failed to both satisfy the informational and implementation aspects of the right to counsel.
[3] All these failures were repeated at the Central Police Station when he was searched.
Respondent
[4] Not surprisingly, the Crown disputes these assertions asking that the application be dismissed or alternatively pursuant to s. 24(2), the admission of the evidence in question, i.e. the cocaine, fentanyl, and proceeds of crime would not bring the administration of justice into disrepute.
III) ISSUES
[5] The issues break down into a series of questions a) was DS unreasonably detained when his identification was requested when he was a passenger in the car, b) was the request for his identification an unreasonable seizure, c) was the implementation and information aspect of s. 10(a) or (b) triggered at that time, when both driver and DS were still in the vehicle, d) did the initial arrest for possession of marijuana trigger and merit the information and implementation aspect of s. 10(a) and 10(b), e) was the roadside search of DS unreasonable in the circumstances and was the subsequent seizure of cocaine unlawful, f) did the second arrest at the roadside for possession of cocaine offend the informational and implementation aspects of s. 10(a) and (b), g) did the search at Central Police Station constitute an unreasonable search and unreasonable seizure of fentanyl, h) again, were the 10(a) and 10(b) rights violated by the search and seizure at the station and finally i) does all of the above merit the exclusion of the finding of cocaine and fentanyl on the person of DS?
IV) FACTUAL BACKGROUND
[6] It is agreed between counsel that in the event of the motion to exclude evidence for alleged Charter rights violations is unsuccessful, the evidence adduced during the course of the motion will be applicable to the trial proper.
[7] There is no issue with respect to the date of the offence and location referred to in the indictment, nor is the identity of the accused. There is no issue with respect to the nature of that which was discovered on the person of Mr. Brandon Drakes-Simon (DS), nor is there with respect to the quantity of either of the cocaine and fentanyl. Those quantities are recognized as being consistent with possession for the purposes of trafficking. There is no issue with respect to the continuity of the prohibited substances prior to and subsequent analysis.
[8] The money discovered on the applicant's person is acknowledged to be proceeds of crime.
OFFICER RYAN BLAKE
[9] Officer Blake (Blake) is the principal witness and arresting officer of the applicant for the charges before the court.
[10] At 12:40 a.m. on July 11, 2018, this uniformed officer was operating a marked cruiser on King Street in the City of Hamilton, which is a one-way westbound principal route.
[11] The traffic was light, understandably for that time of day. He noticed a silver BMW vehicle travelling westbound as well.
[12] The officer ran the plate and numbers into his computer. That revealed that the vehicle was owned by a 65-year-old male based in Brampton. Although the windows of the vehicle were tinted, the officer, through various side shots, was able to determine that the two male occupants were significantly younger than the owner. The driver was wearing a baseball hat.
[13] That tweaked the interest of the officer, who then followed the vehicle. When navigating the intersection of Holton and Wilson, the vehicle failed to come to a complete stop as required by a stop sign. The vehicle turned left on Sherman Avenue and then proceeded to move to the far left as if to turn left on Cannon. The vehicle immediately shifted lanes to that of the lane in which the cruiser was, causing the officer to react suddenly.
[14] All in all, it could not be said that the BMW was operated at a high rate of speed.
[15] The officer described the path of this out of town vehicle as being "bizarre...they were going nowhere...back and forth between streets...an unorthodox route". They, the occupants, seemed lost.
[16] The officer decided to stop the vehicle given the constellation of observations and the Highway Traffic Act violations; namely, the failure to stop and the unsafe lane change. These violations would entitle the officer to stop the vehicle.
[17] Where the vehicle was stopped was 12:41 a.m., was generally speaking, a higher crime area.
[18] As the officer approached the driver's side window, the window was lowered exuding an overpowering strong odour of burnt and fresh marijuana. Normally, the officer acknowledges, in the context of a Highway Traffic Act violation, it is only the identification/licence of the driver that would be requested. However, given the strength of the marijuana odour, the officer believed that both occupants were participating in the possession and consumption of the drug and consequently, he requested the identification from both. The officer returned to his cruiser to check these IDs.
[19] In cross-examination, the officer conceded that this commenced an implied form of detention, as the driver would be unlikely to leave without his or her licence, and if the passenger attempted to leave the vehicle and walk away, he, the officer, would have requested that he get back in the car.
[20] The interaction between the officer, in obtaining respective identification was, to use the words of the officer, "brief" and he could not recall the specifics. He is not sure he mentioned to the driver the cannabis but probably would have explained the taking of the ID in terms of the requirements of the Highway Traffic Act as opposed to a criminal investigation.
[21] Assessing the CPIC system, the officer discovered that there was an outstanding warrant for the applicant DS, out of the City of Calgary, Alberta for an alleged break and enter. At that point, the officer realized that the situation was evolving somewhat, it was "very fluid". It merited further investigation. That and the fact that it was dark caused him to request backup for reasons of officer safety before returning to the BMW. He had neither cautioned nor given the occupants their right to counsel up to this point. He opined that prior to the arrival of backup, that was not a safe place nor time to do that. Before his computer search, he had no idea of who he was dealing with.
[22] After his colleagues in a marked patrol car had arrived, he advised them (Officer Fernandez and Logue) that he would be arresting both occupants for possession of marijuana. Proceeding back to the BMW, he noticed some five marijuana joints on the console of the vehicle, some used, some slightly burned. These observations with respect to the marijuana joints preceded the arrest of both occupants for possession of the drug. This was at 12:49 a.m.
[23] The applicant DS indicated that he had more in the knapsack at his feet and retrieved it.
[24] The driver, Mr. Persaud was removed from the vehicle. Officer Blake arrested him and cautioned him and gave him his 10(a), 10(b) rights. A quick search revealed the existence of $50 on his person. The officer left that money in the car and handed Persaud to one of the officers who had arrived.
[25] That being done, the officer then proceeded to the passenger side of the vehicle to remove the applicant DS (at approximately 12:53 a.m.). The applicant was observed to be very nervous, very scared during the handcuffing and search process incident to the arrest. He kept looking down at his waist. This caused the officer himself to become concerned, especially when the applicant ignored the officer's request to look up.
[26] Officer Blake noticed a large bulge in the groin area. The applicant was wearing tight fitting track pants. In response to the officer's question as to what the bulge was, the applicant responded that was "hard", which the officer knew as street jargon for cocaine. Coincidentally, the officer describes the applicant as being "rigid...visibly shaken". The continually looking down heightened the officer's anxiety as to what there was in the groin area. Typically, it could be more drugs. It could have been fentanyl, which posed safety issues for the officer. The bulge was about the size of the bottom of a small pot.
[27] DS offered to remove the item himself. That suggestion did not allay the officer's concerns, especially if the substance was fentanyl, which, if it was airborne, can cause skin damage, or the item turned out to be a weapon. It was far safer for the officer, as discretely as possible (they were poised within the arc of the open front passenger door at this time with Officer Fernandez behind) to pull the pants of DS partially forward. At that moment, the officer saw a cylindrical object, which he then extracted. That was the 58.08 grams of cocaine, which is the subject of one of the counts before the court. Further searching revealed $1900 in one of the pockets (it was counted after the fact).
[28] The officer then charged DS with possession for the purposes of trafficking cocaine and possession of marijuana. DS was cautioned and given his rights to counsel. He understood and requested to speak to Cheryl Burnett, a lawyer.
[29] Officer Blake had already given the caution and rights to counsel to Persaud at 12:51. Persaud had declined to call a lawyer. At 12:58, the officer returned to charge Persaud with trafficking and cocaine and possession of proceeds of crime.
[30] The scene in the opinion of the officer would not have provided DS with sufficient privacy, nor could any of the numerous cellphones located in the car be used as they may have evidentiary value with respect to the trafficking. In point of fact, the group was only eight minutes away from the Central Police Station.
[31] Yes, the officer had his own personal cellphone, but in his opinion, it would not have been reasonable to provide DS to use that phone to call Cheryl Burnett from the back of the cruiser, especially given the proximity to Central Police Station.
[32] At this point, Persaud was in the cruiser operated by Fernandez with Officer Logue. DS was in the back of Blake's cruiser.
[33] At 1:00 p.m., Blake searched the BMW while waiting for it to be towed. In the front passenger well, in the knapsack referred to earlier, there were several cellphones, cannabis edibles and the black digital scale, as mentioned before there were five used and new joints upon the centre console of the car. The tow truck arrived at 1:33.
[34] The officer, with his charge, DS left the scene at 1:39 and arrived at Central Police Station at 1:47.
[35] Upon arrival, DS was taken before the sergeant in the custody area to whom Officer Blake explained the grounds for arrest, namely what had happened. DS, before being placed in a cell with a toilet and sink and having a call to his lawyer, learned he was to be further searched.
[36] DS became hostile, combative, he wanted to go into a cell, and to speak to his lawyer. He became rigid, keeping his legs together. All of this led Officer Blake to believe that DS wanted to conceal something. If he had been placed in his cell, he could have destroyed whatever it was by flushing it down the toilet. Whatever it was could have been fentanyl which could have been dangerous to all present.
[37] Given all of this and what had been communicated to the sergeant, namely, the prior recovery of a purple baggie, the officer requested a level three search. That authorization was granted at 2:15 a.m.
[38] This kind of search would not have been possible at the actual scene of the stopped BMW, given the darkness of the hour and, a more controlled environment such as in the well-illuminated custody area of the Central Police Station was more desirable for both the safety of the officers and DS himself.
[39] The sergeant authorized the level three search. It was conducted in a private secure room. Officer Fernandez was there along with another officer, possibly the sergeant himself. They held the arms of DS. It was believed that there must be something as DS was so combative and apparently intent on preventing the officers from finding whatever there was.
[40] In an ideal world, a compliant individual would remove each item of clothing at a time for inspection by an officer. But as Officer Blake noted, the situation the officers faced that night was not ideal. There are other circumstances than the "ideal". It all depends on the particular scenario.
[41] This time, a Ziploc package of fentanyl was retrieved from the underwear of DS. The search concluded at 2:21 a.m. With that, his demeanor completely changed. He was compliant. Given this change, it was believed that there was nothing more to find.
[42] DS was charged with possession of fentanyl for the purpose of trafficking. DS was returned to the custody area; he was placed in cell number 14. Contact was made with the office of Cheryl Burnett and DS was brought forward to speak with that person in privacy at 2:33 a.m. That call was completed at 2:38 a.m.
[43] After that, Persaud was released on a promise to appear. DS was to be taken to a bail court as his bail was opposed.
ALBERTO FERNANDEZ
[44] This officer, who was accompanied by his coach officer, PC Mike Logue was dispatched in the early hours of July 11, 2018 to be backup for PC Blake with respect to a traffic stop. He, like the latter, was in a marked cruiser. This task was a matter of protocol since there were two people in a vehicle.
[45] The two officers arrived at the scene, where there was a vehicle with two occupants. This would be at Sherman, north of King. PC Fernandez parked his cruiser behind that of PC Blake's. The latter advised him that he would be arresting the two occupants for simple possession of marijuana. As this officer approached the vehicle in question, he noted an odour of marijuana burnt and fresh.
[46] The driver Persaud was moved to the rear of his vehicle and handcuffed, then he was removed to the sidewalk where he sat down.
[47] Officer Blake gave both occupants their right to counsel and cautioned them. The backup officers had originally arrived at 00:49. By 00:58 the two occupants were charged with possession of the purposes of trafficking in cocaine.
[48] Officer Fernandez described the passenger DS as being very nervous, sweating profusely, stuttering. He had trouble expressing himself.
[49] PC Fernandez remembers the BMW being searched. In the front passenger wheel well and seat various phones were found along with a grinder, digital scales and marijuana edibles. There were five used joints on the console. There was a clear residue under the driver's seat.
[50] All of the above items were given to the officer later at Central Station at 3:15 a.m. After the tow truck arrived and towed the BMW away at 1:31. They left at 1:39 for Central arriving eight minutes later at 1:47.
[51] Officer Fernandez was detailed at the station to prepare the promise to appear for the driver Persaud, who signed that at 1:48 and was released.
[52] In cross-examination, PC Fernandez agreed he was present when PC Blake initially arrested both occupants who were seated in the car with possession of marijuana. At that point, the right to counsel and a caution were given. This was when he had observed DS to stutter.
[53] Subsequently, the driver Persaud was removed from the vehicle and it became Fernandez' task to monitor him. This officer did not witness the removal of a bag of crack cocaine from DS outside the vehicle, nor did he hear any interaction between PC Blake and DS concerning that. Throughout of all this, PC Fernandez has no idea where PC Logue was.
PC MICHEL LOGUE
[54] At the time of this event, he was a member of the Hamilton Police Service.
[55] At 12:46 a.m. July 11th, 2018, PC Blake had requested assistance with respect to a traffic stop. This officer confirmed the location and type of vehicle that was indeed stopped.
[56] Officer Logue was the training officer for PC Fernandez. By 12:49, both occupants of the vehicle were under arrest.
[57] He describes the passenger as wearing tight fitting pants. The pants were sitting low on his buttocks.
[58] PC Logue explained that officers would look at the belt area of an individual for possible weapons. He noticed an unnatural bulge in that area. He perceived his role as to ensure that there was no danger to any party.
[59] PC Logue heard DS after he had been initially arrested state he had "Hard" in his possession, which was street language for street cocaine. He recalls DS looking towards the front area of his pants with the bulge which he described as a "concern for us".
[60] Officer Logue was present when PC Blake seized an item from the front of DS's pants. He was unsure if the latter was handcuffed at that point.
[61] After the item was seized, PC Logue returned to his cruiser to find Persaud in the back seat. He and his brother officer left the scene at 1:39 and arrived at Central Station at 1:47. Beyond that, he had no involvement of note. In cross-examination, PC Logue confirmed that the scene of the stopped BMW was in "a relatively high crime area" of Hamilton.
[62] PC Logue explained that the "unnatural bulge" of which he spoke was something that could not be explained by the human anatomy.
OVERALL IMPRESSION
[63] There were some inconsistencies in the recollections of the three officers; for example, was it Fernandez or Logue near the arc of the open passenger door or behind DS? But, all in all, the basic elements of how the arrest, search, and giving of Charter rights to DS and Persaud were established.
[64] There may have been inconsistencies on occasion in the notes of the officers, but one has to remember officers' notes are not verbatim exercises, they are the best recollection of a particular officer on a particular day.
[65] There were varying degrees of engagement in what transpired amongst the three officers. As mentioned at the outset, PC Blake was the principal actor, PC Logue was the least engaged in the role of coach to Fernandez. Because, officers oft times encounter dramatic or exciting (in the sense of tense) moments, some things will stand out, depending on the emotional makeup of the officer/notetaker. Also, we have to realize that all three officers probably have had in the last two years numerous interactions with the public since.
[66] All of this being said, until all officers are equipped with body-worn cameras (BWCs) that record all, a world in which you can simply push "recall" on your device, officer notes will be a fertile area for cross-examination.
[67] Counsel for DS raised the issue of the race of her client in her submissions. There was no such reference in her cross-examinations. From this jurist's observations of the three police officers, there was absolutely no evidence nor sense that the race of DS was a factor in how the occurrence evolved.
V) APPLICATION
A. GENERAL POLICE DUTIES AND RESPONSIBILITIES
[68] In R. v. Mann, 2004 SCC 52, 2004 3 SCR 59, Justice Iacobucci writing for the majority with respect to the issue of permissible investigative detention spoke of a police "mandate to investigate crime and keep the peace, police officers must be empowered to respond quickly, effectively, and flexibly to the diversity of encounters experienced daily in the front lines of policing" (Ibid, at para. 16.)
[69] That being said, the societal need to be protected from crime requires that there be a reasonable balance between the individual's right to liberty and (that need for societal protection) ref. Cory, J in R v. Storrey 1990 SCC 125, 1990 1 SCR 241 SCC at para. 15.
[70] The above description of the police mandate and the Charter counterbalance have to be assessed with an eye to the realities in a particular context faced by police officers. As Justice Doherty stated in R v. Golub 1997 ONCA 6316, 1997 34 O.R. 3rd 743 COA at page 750, discussing the reasonableness of an arrest:
The dynamics at play in an arrest situation are very different than those which operate in an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.
[71] With this appreciation of realities of policing, the courts assess the use of the tools of investigation in a specific context.
[72] An investigation is potentially a mix of: detention, questioning, discovery of evidence, searching for evidence, and seizure of possible evidence (whether real or conscriptive). The analysis is always in the context of Charter rights. A failure on the part of the police to be mindful of those rights in the absence of exigent circumstances such as police safety, public safety, or preservation of evidence may lead to the exclusion of that which is obtained, as a result of the balancing exercise engaged in by the court as accordance with the principles set out in R v. Grant 2009 SCC 32, 2009 2 SCR 353
B) Detention
[73] S. 9 of the Charter provides "Everyone has the right not to be arbitrarily detained or imprisoned".
[74] S. 495 of the Criminal Code provides in what circumstances a police officer may arrest an accused without a warrant. Obviously, arrest is the most severe form of detention. Justice Cory in R v. Storrey (Ibid, paras. 15-16) talks of the "reasonable grounds required by the Code section." This is not a prima facie proof but grounds beyond that of the subjective belief of the individual police officer. Credibly based grounds replace suspicion R v. Debot 1989 SCC 13, 1989 2 SCR 1140. The grounds must be objectively reasonable "...a reasonable person standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest."
[75] This consideration of whether an officer's subjective belief is objectively reasonable, requires a court to look "at the objectively discernible facts through the eye of a reasonable person with the same knowledge, training, and experience as the police officer." (ref. R v. Canary 2018 ONCA 304 Justice Fairburn writing for the panel.) To Justice Fairburn, this was not a "scientific or metaphysical" exercise but one that calls for the application of "[c]ommon sense, flexibility, and practical everyday experience" (Ibid, para. 22.)
[76] The police are not precluded from continuing the investigation after an arrest. It may actually inure to the benefit of society and the arrested person (ref. Justice Cory in R v. Storrey.) (Ibid, paras. 19-26.)
[77] Although an investigative detention is a less severe form, and nonetheless it cannot be arbitrary, i.e. without a specific reasonable purpose related to the performance of a police duty. Again, reasonableness is a common thread or as Justice Doherty stated in R v. Simpson 1993 12. O.R. (3rd) 182. The investigating officers need "an articulable cause for the detention...a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect the detainee is criminally implicated in the activity under investigation" (at page 202)
[78] Justice Iacobucci in R v. Mann 2004 SCC 52, 2004 3 SCR 59 observed that this articulable cause is a lower threshold than reasonable and probable grounds (para. 27). It is the initial step and the ultimate determination of whether the detention was objectively justified in the totality of circumstances (para. 28). "The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence." (para. 34).
B) HIGHWAY TRAFFIC ACT STOPS
[79] The HTA of Ontario, specifically s. 216(1), provides that a police officer can legitimately stop a vehicle for purposes related to that statute and request of the driver various forms of documentation; for example driver's license, and proof of insurance. Presumably this statutory power emanates from the fact that we recognize that driving a vehicle is not a right but a privilege.
[80] Referring to the decision of the Supreme Court of Canada in Latimer 1997 SCC 405, 1997 1 SCR 217, Justice Doherty stated in his decision Brown et al v. Regional Municipality of Durham Police Services 1998 ONCA 7198, 1998 O.J. 5274, 43 O.R. (3rd) 225 OCA. "A stop made under s. 216(1) of the Act will not result in an arbitrary detention if the decision to stop is made pursuant to some standard or standards which promote the legislative purpose underlying the statutory authorization for the stop."
[81] Therefore, in the case at hand, it was quite legitimate that Officer Blake stopped at the BMW in question because of various traffic infractions, i.e. a failure to stop and unsafe lane changes.
[82] The question oft raised in case law pertaining to vehicles being stopped is whether or not the ostensible HTA purpose was a pretext for other investigative purposes? This was a central issue in Brown et al v. Regional Municipality of Durham Police Services Board.
[83] In that case, the Durham police set up a road check en route to a recreational property owned by a motorcycle gang/club. The police suspected the existence of criminal activity at the property. The road check examined the licenses, ownership documents, insurance documentation produced by the bikers. The actual stopping could take between three to 20 minutes. In the meantime, the police would run the information gleaned from the produced documentation through the CPIC system. Justice Doherty writing for the panel, "The detention authorized by s. 216(1) of the H.T.A. is circumscribed by its purpose. The detention is limited to the roadside and must be brief, unless other grounds are established for a further detention." (underlining mine)
[84] Justice Doherty concurred with the trial judge in that the fact that the police had other legitimate concerns, i.e. the gathering of intelligence with respect to organized crime activity, did not render the original HTA stop unlawful. Those other concerns would be limited by the conduct after the initial stop. He stated:
The gathering of police intelligence is well within the ongoing police duty to investigate criminal activity. As long as the additional police purpose is not improper and does not entail an infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating s. 216(1) of the H.T.A., I see no reason for declaring that a legitimate police interest beyond highway safety concerns should taint the lawfulness of the stops and detention.
[85] The Justice believed that R v. Storrey supported this proposition.
[86] Justice Iacobucci in R v. Mann was reluctant to have the court recognize a general power of detention for investigative purposes. That being said, it was the task of the court to lay down the common law governing police powers, and investigative detention in the particular context of a case. [underlining mine]. (Ibid, para. 17.)
[87] Detention embraces a broad range of encounters which may or may not delay an individual.
[88] A detention can arise when the individual is physically restrained by the police. It can also arise in the circumstances in psychological restraint; namely, that the individual believes he or she has no choice but to comply with the police request, R v. Therens 1985 18 CC 3rd p. 481. See also, R v. Suberu 2009 SCC 33, 2009 2 SCR 460 at para. 4.
[89] A delay does not necessarily engage s. 10(a) or 10(b) rights. A lawful detention for investigative purposes will necessarily infringe on s. 9 Charter rights. (Ibid, page 20.) Starting from that proposition the court applied the Waterfield test based on R. v. Waterfield, [1963] 3 All E.R. 659, which requires courts to initially consider "whether the police interference falls within the general scope of any duty imposed on the officer by statute or common law". If that threshold is met, the second stage of the analysis requires a court to "consider whether such duty, (even though it may be within the general duty) involves an unjustifiable use of powers associated with the duty". (Ibid, page 24.)
[90] The general duties at common law were preservation of peace, prevention of crime, and protection of life, and property. The question becomes was the interference of individual liberty for these common law purposes "reasonable" in terms of achieving those purposes. The nature of this second stage analysis of reasonableness was aided by what Justice Doherty in R v. Simpson described"articulable cause" (previously defined). Or as set out by Justice Iacobucci in R v. Mann at para. 27. Justice Iacobucci preferred the phraseology "reasonable grounds to detain" versus "articulable cause", however both expressions convey the idea that investigative detention must be based on reasonable grounds something more than "a mere hunch". Namely "the detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent ongoing criminal offence." (Ibid, p. 34.)
C) SEARCH INCIDENT TO INVESTIGATIVE DETENTION
[91] Justice Iacobucci continued in his analysis in R v. Mann, to discuss searches which arose, i.e. warrantless, during a detention. (In our case, that would include the request for the ID of the passenger, DS). Like detention, warrantless searches are presumptively unreasonable unless justified and found to be reasonable in accordance with the test in R v. Collins, 1987 1 SCR 263. That test provides that such searches are deemed reasonable if "a) they are authorized by law (as would be the request of a driver's license for the purposes of the HTA), b) the law is reasonable, and c) the manner in which the search was carried out was reasonable". It is the Crown's burden to satisfy these requirements. It must be noted that a search pursuant to investigative detention is distinct from search incident to arrest (Ibid, para. 36.)
[92] Waterfield is the authority for the fact that there is a power of search incidental to detention, in the common law, as such a search falls within the general scope of the police duty.
[93] Justice Iacobucci explained "the search must be reasonably necessary. The relevant considerations here include the duty being performed, the extent to which some interference with individual liberty is necessary in the performance of that duty, the importance of the performance of the duty to the public good, the nature of the liberty being interfered, and the nature and extent of the interference." (Ibid, para. 39.)
[94] As an aside while stating what His Honour did about how a search could be necessary, he is understandably cognizant of the issue of officer safety. There are going to be situations in which a detainee is unlikely to be compliant, possibly for reasons of trying to keep secret that which they have on their person. That consideration may justify a "pat down".
[95] The importance of officer safety was recognized by the court in R v. Mellenthin 1992 3 SCR 613 in which it was stated "police officers face any number of risks every day in the carrying out of their policing functions and are entitled to go about their work secure in the knowledge that risks are minimized to the greatest extent possible". As quoted in R v. Mann para. 43.
[96] A final word of caution is merited in considering searches incident to detention, this detention itself may be reasonable and justifiable because of a particular statute, i.e. the Highway Traffic Act, or an ongoing emerging investigation consistent with the performance of general police duties. But the search if it is detached from either purpose for the detention may be unreasonable in itself. For example in R v. Harris 2007 ONCA 574, 2007 O.J. 3185 (OCA) Justice Doherty found that the request for ID from a passenger was not within a legitimate purpose of the detention. Again, as His Honour counselled one must look at the constellation of facts. Referring to R v. Mellenthin 1992 SCC 50, 1992 76 CCC 3rd 481 SCC, His Honour quoted Justice Cory "random stop programs must not be turned into a means of conducting either an unfounded general investigation or an unreasonable search." (Ibid, para. 36.)
[97] Harris, as was Mellenthin although legitimately detained pursuant to the Highway Traffic Act was not reasonably suspected by the investigating officers of anything.
[98] A similar situation arose in Mhlongo 2017 ONCA 562, 2017 O.J. No. 3439 OCA. Justice Blair writing for the panel noted, that after the HTA check the officer moved into conducting a criminal investigation without having any specific crime in mind (ref. para. 11). There was no articulable basis to believe that the passenger was implicated in any sort of criminal activity (ref. para. 41).
[99] Harris and Mhlongo illustrate the prior mentioned concern that an HTA stop is effectively a pretext for an unspecified investigation. Therefore, the obtaining and requiring of ID in these circumstances was unreasonable and therefore the immediate need for s. 10(a) and (b) are triggered.
D) SEARCH INCIDENT TO ARREST
[100] Justice Iacobucci in R v. Mann at para. 37 drew a distinction between a power to search incidental to investigative detention and the power to search incidental to the actual arrest of an individual.
[101] Search incident to arrest also encompasses strip searches.
[102] Pursuant to the common law, a search incident to arrest is for reasons of 1) officer safety(in particular weapons); 2) public safety (similar to previous bracket) ; and 3) to preserve evidence in the sense of taking control of anything of evidentiary value on the person arrested to prevent its destruction. Such a search is reasonable within the meaning of s. 8 of the Charter if it is 1) authorized by law (which includes common law); 2) the law itself is reasonable; and 3) the search is conducted in a reasonable manner. R v. Collins 1987 SCC 84, 1987 1 SCR 265, R. v. Debot (1989) 1989 SCC 13, 2 SCR 1140 and authorities cited by the majority in R v. Golden 2001 SCC 83, 2001 3 SCR 679 at para. 44.
[103] The lawfulness of such a search is predicated on the need to balance the interest of the citizens in the sense of having freedom from extensive, unjustified, humiliating strip searches upon arrest and the interests of society and police that arrested persons are not potentially dangerous to themselves, the police, or others and that they are incapable of any evidence destruction (Golden at para. 46).
[104] The majority in Golden accepted the definition of a strip search proposed by the appellant, namely, the removal or arrangement of some or all of the clothing of a person's private areas, namely, genitals, buttocks, breasts or undergarments, ref. para. 47.
[105] This form of search is distinguishable from a far less intrusive "frisk" or pat down searches which do not require the removal or dislocation of clothing. The most intrusive form, being cavity searches, which may involve a physical inspection of detainee's genital or anal region, apparently does not include the oral cavity, (ref. para. 47).
[106] One notes that the facts in Golden were quite thought provoking.
[107] The majority opined that the more intrusive the search the greater the degree of justification and constitutional protection that is appropriate…the party seeking to uphold the validity of a warrantless personal search will face a lower burden in the case of a quick pat or frisk search than in the case of a highly invasive body cavity search." (ref. para. 88)
[108] The majority noted that for a strip search to be truly incidental to an arrest, that presupposes the arrest itself is lawful. From that a second requirement flows that the search be related to the reasons for the actual arrest, in other words, it was reasonable to search the individual in that fashion. Golden was being investigated for drug trafficking, observed actions led to his arrest, the reason for the strip search was to determine if he was secreting any drugs in or on his person. Ostensibly it was reasonable to search in this fashion given the need to preserve evidence, by eliminating the possibility of its disposal. (ref. paras. 91 and 93)
[109] The court noted in passing that the common law would permit such a search if there were weapons. Generally; however, that would be achieved by a pat down or a frisk given the size and definite features of a weapon. Yet there could be circumstances beyond a mere possibility that even would justify given the breadth of the definition, a strip search for a weapon.
[110] Given the intrusive nature of a strip search, the majority emphasizes that there was a need for a second set of reasonable and probable grounds to justify a strip search above and beyond those required for the arrest itself. A second look as it were. That being said, it does not mean these two sets of reasonable and probable grounds are distinct or different. They may be parts of a continuing theme. This can be illustrated by what Golden was investigated for, a stakeout had revealed several suspicious transactions in a café which had all the earmarks of trafficking, after several encounters between the accused and possible purchasers, the arrest was made and given that the transactions would suggest that the accused had some product on his person, a strip search could be a reasonable and probable step.
[111] The court set out the following guidelines for the execution of such searches:
Can the strip search be conducted at the police station and, if not, why not?
Will the strip search be conducted in a manner that ensures the health and safety of all involved?
Will the strip search be authorized by a police officer acting in a supervisory capacity?
Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
What is the minimum of force necessary to conduct the strip search?
Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?
Will the strip search involve only a visual inspection of the arrestee's genital and anal areas without any physical contact?
If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?
Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?
(ref. para. 101.)
[112] These guidelines reveal a preference for these strip searches to be performed at a police station. Yet there may be exigent circumstances to justify such a search in the field. "Strip searches conducted in the field could only be justified where there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals." It will be incumbent upon the police to establish such exigent circumstances as a field search potentially presents a greater invasion of privacy and threat to the integrity of the detainee (ref, para. 102)
[113] Given the invasive nature of strip searches, they are considered prima facie unreasonable, therefore, it is up to prosecution who are in the best position to explain the necessity for such a step whether it be in the field or at the station. In both instances the prosecution will have to present reasonable and probable grounds, above and beyond the arrest to justify such a search. If the search is conducted in the field, there were exigent circumstances to merit that step. In both cases it must be demonstrated that the actual search was conducted in a reasonable manner.
E) GENERAL OBSERVATIONS WITH RESPECT TO DETENTION, SEARCH INCIDENT TO INVESTIGATIVE DETENTION AND SEARCH INCIDENT TO ARREST
[114] The above analyses have focused on these investigative steps in the context of applying s. 8 and 9 rights of the Charter. There is a theme throughout the case law that such steps have to be objectively reasonable investigative steps to take in the particular context faced by the police which may in itself be "fluid". They cannot be based on mere suspicion or hunches. They cannot be exercised arbitrarily.
F) THE INTERACTION BETWEEN INVESTIGATIVE STEPS AND S. 10(B) RIGHT TO COUNSEL
[115] Barring exigent circumstances, arrest triggers s. 10(b) rights. In R v. Suberu 2009 25 CR 460 the SCC wrestled with whether or not the s. 10(b) right, i.e. the informational and implementational aspects should be pre-arrest; namely, during or at the start of investigative detention. Certainly there's no necessity in low-end interactions between police and members of the public in which an individual is merely asked questions or momentarily delayed and is kept waiting. In other words, preliminary investigative questions short of detention.
[116] Justices McLachlin and Charron wrote for the majority in stating that the police duty to inform an individual as to his right to retain and instruct counsel is triggered at the outset in investigative detention, as that is at a point beyond which there is potential for compelled self incrimination and the interference with the liberty that the right addresses. "The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter." (ref, para. 2) (underlining mine)
[117] Referring back to R v. Grant the justices noted that detention for the purposes of the Charter right is not confined to actual physical detention but includes situations where the subject is legally required to comply with a demand or direction that interferes with his or her liberty, detention is usually easily made out. Where there is no legal obligation to comply but a reasonable person in the subject's position would conclude that he or she has been deprived of a liberty of choice, detention is also established (Ref, R v. Therens, Ibid, para.4)
[118] The justices spoke of a moment in the encounter between the subject and the police where a detention has crystalized and the giving of the right is required. That point will no doubt be determined by a trial judge given the particular factual circumstances of the case before the jurist. (Ibid, para.5.)
[119] In Suberu's case, it was not the dialogue between he and the police officer, as Suberu walked to his van that was the point of detention, that point arrived when the officer received additional information that led him to believe Suberu was involved in the fraud they were investigating. At that receipt of the additional information, that was when the right was engaged. (Ibid, para.7.)
[120] The court repeated the summary set out in Grant at para.44:
Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
- In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[121] The justices appeared to appreciate that the moment of crystallization would not necessarily be readily apparent during an interaction. But that it occurs when the individual realizes they are not free to go and that he or she had to comply with the officer's request (Ibid, para. 27).
[122] In the facts of Suberu it would appear that some time was taken by the officer to "orientate" himself to the situation that he faced versus intending to deprive Suberu of his liberty. (Ibid, para. 32)
[123] Once the line is crossed, the right is engaged, the officer is to hold off from eliciting any further self-incriminating evidence until the person has a reasonable opportunity to consult with counsel. (Ibid, para. 38)
[124] "Without delay" means immediately upon detention "if the right is to serve its intended to purpose to mitigate a legal disadvantage and legal jeopardy faced by detainees and to assist them in regaining their liberty…" (Ibid, para. 41)
[125] What would constitute "permissible delay" was too abstract, too difficult to quantify. It is preferable to go with "immediacy" to avoid misunderstanding. "In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, … the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention." (Ibid, para. 42) (underlining mine)
[126] All of this sounds quite definitive but one notes for reasons of officer safety there may be some discretion on the part of the police. That possibility was reiterated by the Ontario Court of Appeal in R v . Rover 2018 ONCA 745, 2018 O.J. 4646.
[127] Justice Doherty writing for the panel after reviewing all the facts and timelines of a stakeout that led to arrest and setting out the definitive expression referred in R v. Suberu states, "The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence." His Honour went on to cite examples of such situations; for example, the police had to search for a restricted weapon known to be at the scene as a special circumstance that existed to delay the implementation until after a search warrant was executed. (Ibid, para. 26)
[128] General or non-specific concerns would not justify delay. The police have to turn their minds to the specific case to determine if there are reasonable concerns relating to police or public safety or the need the preserve evidence. "Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel" (Ibid, para. 27)
[129] In R v. Wu 2017 ONSC 1003, the law in this regard was summarized at para.78:
The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:
a) the suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety. Effectively, the right to counsel should not be suspended unless exigent circumstances exist….
e) Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate. (emphasis added)
G) S.24(2) ISSUES
[130] In R v. Grant, Chief Justice McLachlin and Justice Charron wrote for the majority. In viewing Mr. Grant's situation, the justices wrote that the language of s. 9 and 10 must be construed in a generous fashion without overshooting their purposes. Both rights were discussed to establish the underlying purposes. It was observed that generally detention triggers the right to counsel as it is a vulnerable position for a detainee to be in. The rights address an obvious imbalance of power between the individual and the state:
"More specifically, they (the state) are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination. They also ensure that the person who is under the control of the state be afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty."
[131] It was concluded that the detention of Mr. Grant was arbitrary. Consequently, given the analysis of R v. Suberu he was in immediate need of legal advice and consequently by the failure to so provide him there was a s. 10(b) breach.
[132] The justices describe the test of exclusion in s. 24(2) of what would bring administration into disrepute having regard to all the circumstances as "broad and imprecise". The court went on to say how unworkable and problematic the three-part test established in R v. Collins 1987 1 SCR 205 and R v. Stillman had become.
[133] The purpose of s. 24(2) was to maintain the good repute of the administration (para. 67). The objective concern was whether the overall repute would be adversely affected. The focus of s. 24(2) was not only on the long term but also prospective, "The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. "Section 24(2)'s focus is also societal." The section is not there to punish the police or provide compensation to an accused, but to address societal concerns. [para. 69]
[134] Henceforth, there must be a three-fold inquiry in which a jurist, faced with an application for exclusion of evidence;
"must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: 1) (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits". (para. 71)
[135] The justices expanded upon these factors.
(i) The Seriousness of the Charter Breach
[136] Under this heading the court was concerned with the message sent by the fact of a Charter breach, was the breach a possible comment on how state institutions followed the law? Was there need for the court (one aspect of the administration of justice) to dissociate itself from the conduct? Obviously the more severe, the more deliberate the conduct the greater the need for this disassociation. (para. 72)
[137] This is not a question of punishing the police, the concern is that public confidence in the system be preserved.
[138] There's going to be a spectrum of seriousness in terms of breaches. At one end, there will be minor and inadvertent breaches which would have minimal effect on public confidence. At the other extreme, there would be willful/reckless disregard for rights with a significant negative aspect on the pertinent Charter rights (para. 74)
[139] It may be that there are extenuating circumstances, which "attenuate" the seriousness of the police conduct: for example, a need to preserve evidence. Yet at the same time, ignorance or willful blindness of the Charter standards is not to be rewarded or excused in the name of good faith. With flagrant and willful abuse of standards, the court may have to disassociate itself. Such conduct tends to support exclusion of the evidence. A court must be vigilant with respect to "Charter-infringing behaviour" which is "part of a pattern of abuse". (para. 75)
(ii) Impact on Charter-Protected Interests of the Accused
[140] The concern at this point is "what does the breach say about the legitimacy of the right?" This will depend on the particular right at issue. If the breach of a right is particularly egregious, to allow the breach, in the sense of not responding to it diminishes the significance of validity of the right. In other words, it would not be worth much. (para. 77)
(iii) Society's Interest in Adjudication on the Merits
[141] This line of inquiry asks, "whether the truth-seeking function or the criminal process would be better served by admission of the evidence or by its exclusion". There is a social need to have lawbreakers brought to trial. (para. 79)
[142] In this aspect of the analysis, the reliability of the evidence obtained as a consequence of a breach is significant. If the breach undermines or causes one to question the reliability of the evidence, the tendency would be to exclude such evidence as it neither serves the interest of the individual accused nor society. "Conversely , exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. " (para. 81)
[143] If evidence derived from a breach facilitates the discovery of the truth and the adjudication of a case on its merits" that must be weighed against those factors indicating exclusion. "The court must ask "whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial" (para. 82)
[144] Another factor under this line of inquiry is the importance of the evidence to the case for the prosecution. Would exclusion effectively "gut" that case? (para. 83)
[145] The seriousness of the offence can cut both ways. Exclusion of evidence may have an immediate effect namely the undermining of public confidence. In addition, what effect would there be with respect to the long-term repute of the system (which is the focus of the 24(2) inquiry)? "The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice." (para. 84)
[146] The s. 24(2) judge considers the three lines of inquiry described above and decides on balance whether "the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute." (para. 85)
(iv) Observations by the Supreme Court as to the Operation of this new 24(2) Analysis on Different Types of Evidence
[147] To assist courts in the interpretation/application of the Grant s. 24(2) analysis, the Supreme Court looked at the possible implications given the main types of evidence. Those categories of evidence being: statements of the accused, bodily evidence, non-bodily physical evidence, and derivative evidence. Non-bodily physical evidence is the only category pertinent to our ruling.
(v) Non-Bodily Physical Evidence
[148] As with other types of evidence and applying the three lines of inquiry exclusion may depend on how egregious or deliberate police conduct was.
[149] The usual Charter right is that of freedom from unreasonable search and seizure. Privacy is the principle at stake. The jurisprudence that has evolved provides guidance as to how to measure the extent of the encroachment. For example, personal residence attracts a higher expectation of privacy than that of a place of business or automobile. (para. 113) Human dignity may be impacted upon (para. 114).
[150] In the consideration of the third inquiry, the societal interest in a trial on its merits, the reliability (namely the intrinsic nature of the object) is not anticipated as an issue.
H) EVIDENTIARY ISSUE
[151] Unlike all of the above sections, there is one evidentiary issue namely olfactory evidence which is not directly Charter related. It may; however, be considered as one of the constellation of facts that contribute to the objective reasonableness of the investigative steps Officer Blake engaged in.
I) OLFACTORY EVIDENCE
[152] During an investigation, an officer obviously is not precluded from using the three senses, i.e. sight, sound, and smell, that is what all of us are equipped with. We become "eyewitnesses" or report as to what we see, hear, and smell.
[153] It has been argued that the individual sense of smell is highly subjective. That being said there are some smells that stand out, i.e. diesel fuel, gasoline, particular foods et cetera, that are well-known. Nonetheless, the subjectivity argument with respect to the odour of marijuana was raised in R v. Polashek 1990 O.J. 968. It was argued that the smell alone would not provide the requisite reasonable and probable grounds for an arrest.
[154] Justice Rosenberg observed that the sense of smell is highly subjective and to authorize an arrest solely on that basis effectively makes an officer's decision unreviewable given the transitory nature of the odour. His colleague, Justice Doherty, in R v. Simpson 1993 ONCA 3379, 1993 12 O.R. 3rd 182 CA has observed that "subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin, or sexual orientation. " (page 202)
[155] Notwithstanding the caution, his colleague expressed, Justice Rosenberg was not prepared to find that the smell of marijuana would never provide the requisite grounds for arrest. It all depends upon the circumstances in which the observation was made. In Polashek, the vehicle was stopped in the town of Malton which at the time was considered a high marijuana area.
[156] A more contemporary reiteration of Justice Rosenberg's observations in R v. Polashek is R v. Morris 2013 ONCA 223 (OCA) in which the panel rejected the submission that it was not open to the trial judge to find reasonable and probable grounds for arrest on the basis of the officer's evidence that he or she smelt marijuana and stated "While previous cases have cautioned against placing undue reliance upon "smell" evidence, there is no legal barrier to the use of such evidence"[^1]
[157] In R v. Katerberg 2019 ONCA 177, an officer conducting a RIDE program, noticed a strong smell of freshly harvested marijuana emanating from a van, when the driver lowered his window to answer the officer's questions. The officer actually told the driver that she was concerned about a possible possession of marijuana charge. This discovery on her part according to this panel did not vitiate the validity of the original stop. It was a subsequent legitimate purpose flowing out of the original valid HTA stop.
[158] Additionally of interest the practicalities of the situation, i.e. the need to move the appellant's van to the side of the road, for both reasons of officer and public safety legitimately delayed the informing of the s. 10(b).
VI) ANALYSIS
[159] The events of the early morning of July 11th, 2018 unfolded quite quickly and unpredictably. Whatever happened was not a result of a stakeout or an investigation contemplated in advance. None of the actors knew of each other in advance.
[160] Officer Blake was engaged in a routine patrol in his marked cruiser when he witnessed a BMW at 12:40 a.m. Having noticed several phenomena: namely, the operator being far younger than the registered owner and driving behaviour which he describes as "bizarre" as if the occupants were lost and two Highway Traffic Act violations, he signaled for the vehicle to pull over.
[161] As has been referred to before, this was a legitimate HTA stop at 12:41 a.m., it was not a pretext for some unknown agenda. That being said when he approached the vehicle and the driver lowered his window to engage with the officer, an overpowering strong odour of burnt and fresh marijuana escaped the vehicle. The two descriptors used by the officer to describe what he smelt, namely "burnt and fresh" suggests both the consumption and ongoing possession. It would be objectively reasonable for the officer to believe that the occupants were both consuming and possessing. Given the contained area of a vehicle and the adjectives used by the officer, it would be objectionably reasonable to conclude that both individuals were parties to the offence.
[162] The request for the driver's license of the driver is unassailable. It is provided for under the HTA. The request for the ID from the passenger is not so authorized, but it is authorized by virtue of the common law applicable to investigations based on recognized duty or responsibility of the police. A new legitimate investigation had morphed out of the original HTA stop. As one noted in the review of Brown v. Durham Police Services, that new investigation into possible controlled substances infraction does not vitiate the original HTA stop. The emerging investigation would necessitate identifying the passenger, if that individual was likely to be charged, plus it would be necessary for the officer to generally know who he is dealing with, from the point of view of his and public safety. Plus, in accordance with s. 495(2) the ability to identify DS was related to whether or not he should be released.
[163] These two parties were as the officer admitted "implicitly detained". They were detained because of practical realities, the driver would no doubt wait for the return of his license to continue to drive, the passenger initially detained as part of the HTA investigation was no doubt detained as he would have been dependent upon the driver for a ride. Additionally, the officer acknowledged that if the passenger DS wanted to leave, he would probably have told him to get back into the car. There is a sense of psychological restraint as referred to in Suberu. That being said it is rather low grade detention in that the two individuals are merely waiting in the car as opposed to the back seat of the cruiser, the access and egress to which is controlled by the police officer in the front seat. They were basically left to their own devices; no potential self-incriminating questions were posed to either, their freedom is not substantially limited. It was reasonably necessary as there appeared to be a clear nexus between the two individuals and the commission of a crime. There was to use Justice Iacobucci's words in R v. Mann " a reasonable ground to detain". The search in the form of taking DS's ID was related to the reasonable ground to detain and it was the next necessary step as the officer would have to identify DS.
[164] The request for the ID of DS would probably constitute that line crossing that Justices McLachlin and Charron spoke of in Suberu but the reality of that moment was that you had a single police officer in the early morning hours in a higher-crime area, having to deal with two unknowns and an apparent strong case for a controlled substance possession which may have explained or contributed to the bizarre driving behaviour. There is definitely a possible officer safety issue emerging. The officer returned to his cruiser and carried out a CPIC search with respect to the two males. The discovery that there was a warrant outstanding for DS out of Calgary for a break and enter virtually mandates that Officer Blake has to arrest DS. There is no catch and release policy with respect to outstanding warrants. That fact alone was not the predominant concern. The officer was alone in the situation, which in his words "was very fluid" in other words it was evolving: a routine HTA stop morphed into a controlled drug investigation, one of the parties has some elements of potential liability for a criminal offence elsewhere and he is alone. It was entirely reasonable for Officer Blake to follow the protocol and request backup (according to Officer Logue at 12:46 a.m.) which arrived in the form of Officers Fernandes and Logue. The officer reiterated what he plans to do to those two officers, namely arrest DS and Persad the driver, and he does so at 12:49 a.m. just after observing further physical evidence in the form of both used and slightly burnt joints. It is at this point he arrests the two and advises them as to their s. 10(a) and 10(b) rights some eight minutes after the original stop, the bulk of which would have had DS and Persad waiting alone in their vehicle. Persad's arrest proceeds routinely and he is passed off to Fernandes.
[165] DS's arrest becomes problematic. DS is acting nervously. Fernandes testified that his nervousness manifested itself in DS stuttering. When DS is placed erect outside the car but within the arc of the door and presumably is being handcuffed, DS stares down at his groin area. There was a noticeable bulge in the area of the waist/groin. Officer Logue said it was not anatomically related.
[166] Search incident to arrest is necessitated in the name of officer or public safety or to preserve evidence. So what is this bulge that DS was staring at? Officer Blake cannot ignore this phenomena, it obviously is viewed with significance given DS's fixation.
[167] DS reveals that it is "hard" , i.e. cocaine. But can Officer Blake take his word for that and allow DS to remove it himself? The officer has no prior experience of dealing with DS to have any opinion as to his honesty or lack off. The search incident to arrest has itself morphed into something more problematic or serious as Officer Blake mused what if it was fentanyl? That in itself if released could be a health hazard to both DS and the officer? What if it was other than what DS had stated?
[168] There were reasonable grounds to go beyond the reasons for the arrest itself in fact these grounds emerged out of the arrest process. It becomes objectively reasonable that Blake take the step at the scene of pulling back the front of DS's tracksuit to remove a package that he views there. There was no evidence that at that point, the genitalia were exposed. The evidence all seems to centre on that package. This was a low-end strip search, nowhere of the intrusiveness displayed in R v. Golden. The officers did not have the luxury of waiting to do all this at the station. He had to transport DS. How would he transport him with this unknown object in his waist area? It could have been fentanyl or a weapon. He would have been negligent if he did not address that issue there and then. The officer had to orientate himself to yet another change in the circumstances that emerged.
[169] Naturally DS was rearrested for possession of cocaine, cautioned and given his 10(b) rights, Suberu would suggest at first blush the implementation stage would commence to run from that point, and DS had actually exercised his right by giving the officer a named lawyer to be contacted.
[170] But there were practical realities, the officer could not hand over phones located in the vehicle. They may have had evidentiary value that could be compromised. Officer Blake couldn't very well give DS his own personal phone and allow DS to use the back seat of the cruiser to place a call. One, DS's right to privacy would be compromised and Officer Blake would have to be concerned of his phone being compromised and his number being circulated . There would be officer safety issues.
[171] These exigent circumstances in this court's opinion would have allowed for some reasonable delay in implementation but it would require that the police hold off in obtaining any new self-incriminating evidence, which is exactly what Officer Blake did, there is no evidence he posed, any such questions to DS.
[172] There was some delay necessitated by arranging for the BMW to be towed, and for it to be searched. Between 12:53 when DS was originally removed from the vehicle and the unexpected strip search was necessitated, the arrival of the tow truck, and the departure to Central Police Station at 1:39 a.m., and arrival there at 1:47 a.m., less than an hour had passed.
[173] Regrettably at the station, another issue arose originating out of DS's behaviour. The possibility of a further search prior to his being placed in the cell with a toilet or a call being placed to his lawyer brought about DS becoming combative, keeping his legs together rigidly. At this juncture Officer Blake would know from his prior experience of DS's behaviour at the scene, that there was a strong likelihood of there being yet something else secreted on DS's person. Given what the previous search had yielded and the fact that DS's behaviour was even more elevated than what he had demonstrated before there will be objectively reasonable grounds to believe that this time whatever it was is even more significant, possibly fentanyl. It was reasonable to believe that there was another officer or public safety issue (and certainly that would be the case if the secreted item was fentanyl) or there was a risk of evidence destruction.
[174] The rules suggested by the SCC in R v. Golden were respected. As a level three search was authorized by the sergeant in charge of custody, the search was conducted in a private area by members of the same sex it was overall a controlled environment.
[175] As is known a package of fentanyl was retrieved from the underwear, DS became immediately compliant, this in itself was reassuring with respect to whether there was anything else. Contact was made with the office of the desired counsel at 2:33 a.m. Forty-six minutes had elapsed from the time of DS's arrival at the police station, it can be assumed that the strip search consumes maybe 15 to 20 minutes upward of that time.
[176] Therefore, for the second time that morning, exigent circumstances which generated two strip searches ate into the immediacy of the implementation of s. 10(b). Taking the first step fo the Grant analysis namely the assessment of the Charter breach there are several Charter breaches alleged. The initial detention was reasonable. The search in the form of the ID of DS was similarly so. The strip search of the scene was on the basis of a second set of but related to the arrest reasonable grounds and was demonstrably justified.
[177] The time lost at the scene strip search which in itself was a modest strip search was minimal. There were practical reasons for the delay at the scene after the search, some of which could be related to officer safety. For example, the wisdom behind the officer not offering his personal cell phone to make a call to counsel.
[178] The disruption to the implementation at the station itself caused by DS's composure was minimal.
[179] All in all it is difficult to say in this evolving case with the progressively more practical issues presented by what DS had on his person, that there was a Charter breach of any seriousness.
[180] As for whatever impact it was on the Charter rights, possibly s. 10(b), there is nothing that stands out that requires censure of what the police did, no one is going to think that the rights were eroded or cheapened.
[181] Part of the problem with raising possible Charter violations is that each step of the investigation was an objectively reasonable response by an officer who had to pivot frequently to deal with unexpected circumstances. Finally, balancing all of these factors what would a reasonable member of the public think in the long term as to the impact of the admission of the substances found on the person of DS on the repute for the administration of justice? The substances were relevant, real evidence. Items obtained from the accused by the officer doing his job. The exclusion of such evidence would be baffling to the public. Therefore, for all of the above the evidence of the cocaine, fentanyl, and money is allowed.
Whitten J.
Released: January 11, 2021
COURT FILE NO.: 19-192
DATE: 2021-01-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Applicant
- and –
Brandon Drakes-Simon
Respondent
RULING
Released: January 11, 2021
[^1]: R v. Kwesi Morris was cited by Justice Trotter in R v. Merza 2013 ONSC 5724, 2013 ON SC 5724.