COURT FILE NO.: CR-20-763

DATE: 20210324

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen, Respondent

AND

John Larsen, Applicant

BEFORE: Justice S. Nicholson

COUNSEL: A. Nisker, for the Respondent

C. Demelo, for the Applicant

HEARD: February 25, 2021

SECTION 8 CHARTER CHALLENGE: PRE-TRIAL RULING

NICHOLSON J.:

INTRODUCTION:

[1] John Larsen, the applicant, stands charged with several counts of possession for the purpose of trafficking in various Schedule I controlled substances contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”). The charges arise out of a traffic stop occurring on February 2nd, 2020.

[2] On that date the applicant was driving a Ford SUV on Huron Street in Stratford with his co-accused as the front-seat passenger. Constable Poppe was on patrol and noticed that the vehicle in question did not have any licence plates. He followed the vehicle into a parking lot and spoke to the two men. The applicant was unable to provide his licence, proof of ownership or insurance. Constable Poppe detained the applicant and subsequently performed a search of the glovebox of the vehicle where he located a small cardboard box. Upon opening the box, he found approximately 3.5 grams of suspected cocaine. He arrested both men and continued to search the vehicle. Constable Poppe then located a black camera bag on the floor in the rear passenger seat area. Contained within that camera bag was a large bag of suspected Methamphetamine (82 grams) and two small dime bags of suspected Fentanyl (6 grams). The two men were then arrested in relation to those substances.

[3] The applicant applies to exclude the drugs seized by Constable Poppe pursuant to s 8 of the Charter.

[4] For the reasons below, I dismiss the applicant’s Charter application.

EVIDENCE:

[5] The Crown called only Constable Poppe to testify on the application. The applicant called no evidence but did file a lawyer’s affidavit very briefly reviewing the Crown Disclosure. Below I summarize Constable Poppe’s evidence. The lawyer’s affidavit is consistent with this evidence.

[6] Constable Poppe is a Constable 3rd class with the Stratford Police Services. He has been a police officer since January of 2019. On February 2, 2020 he was assigned to a general patrol in Stratford. His duties would have included responding to any calls for assistance and dealing with any traffic violations or other offences that he might observe.

[7] Constable Poppe estimated that he had handled approximately 300 Highway Traffic Act (“HTA”) investigations in his one year of service. This would include dealing with traffic stops, checking driver identification, responding to traffic accidents and conducting document related investigations with respect to ownership or insurance. He estimated that he had handled approximately ten cases involving vehicles without licence plates and approximately six cases involving suspended driver’s licences.

[8] On the day in question, at approximately 2:50 pm, Constable Poppe was in his uniform. He was alone in his vehicle. He was eastbound on Huron Street when he observed the Ford SUV approaching in the opposite direction. It did not have a front licence plate attached. As the vehicle drove past him, Constable Poppe looked in his rear-view mirror and could not see any rear plate. Accordingly, he turned around and proceeded westbound on Huron Street. The SUV turned into a KFC parking lot and parked. Constable Poppe turned into the same lot and parked behind the vehicle, between it and the KFC building.

[9] Constable Poppe observed two men exit the vehicle. He described that they exited the vehicle in a rapid fashion. Constable Poppe asked the driver (the applicant) for documentation, including his driver’s licence, vehicle ownership and insurance slip. The driver indicated that he did not have any of those documents.

[10] Constable Poppe testified that he did not recognize either man. The driver identified himself as “John Larsen” verbally. He did not provide any form of identification when asked. When Constable Poppe asked why the vehicle was unplated, the applicant advised that he had just recently purchased the vehicle and had not yet registered it. When Constable Poppe inquired if the applicant held a valid driver’s licence, the response was “no”.

[11] Constable Poppe testified that at this juncture he had placed Mr. Larsen under investigative detention in relation to a possible stolen vehicle. He simultaneously radioed into the department and was advised that Mr. Larsen was a suspended driver. Accordingly, Constable Poppe believed that he had cause to arrest the applicant under the HTA. However, he did not formally do so. Constable Poppe also testified that he believed prior to making the radio call that he had grounds to arrest the applicant for failing to produce a valid driver’s licence. However, he felt that the possible stolen vehicle was a more pressing issue.

[12] Constable Poppe placed Mr. Larsen in his cruiser. It should be noted that the passenger had continued into the KFC restaurant.

[13] Constable Poppe testified that if he had not suspected that the vehicle was stolen, he would normally arrest a suspended driver and would search the vehicle to find evidence of the suspended driver’s licence. He would normally check the glovebox first, as it has been his experience that most people keep documentation there. If the documentation was not located in the glovebox, he would then check the centre console and sun visor area.

[14] Constable Poppe admitted that although he had never dealt with the applicant before, nor recognize him, he was advised of the applicant’s CPIC records. These, I am advised, include previous arrests for drug related charges.

[15] Once Mr. Larsen was in his cruiser, Constable Poppe’s next step was to try to determine who owned the SUV. Accordingly, he searched the glovebox for documentation. At this juncture, he stated that he was investigating for a possible stolen vehicle. The HTA investigation was not over but was not his primary focus. He was more concerned about determining if the vehicle was stolen. He testified that had he not suspected that the vehicle was stolen, he still would have done the same search of the glovebox in relation to the suspended licence.

[16] Constable Poppe called for another unit to assist as the “scene was becoming more dynamic”. He then searched the glovebox and located a small cardboard box with an Energy Drink “Monster” logo on it. It was approximately 6” by 6”. Constable Poppe assumed that any documentation would be stored in this box. He testified that he had found documentation in such receptacles on prior occasions. While more often documentation is in a small folder or loose in the glovebox, he has found documentation in similar containers in the past. Instead of documentation, the cardboard box contained a “dime bag” and a scale as well as multiple empty plastic bags. Constable Poppe indicated that the search to that point had taken approximately one minute.

[17] Constable Poppe now felt that he had grounds to arrest the applicant for narcotic related offences. He arrested the applicant for possession of drugs and then went into the KFC to locate and arrest his passenger. He arrested the passenger at 3:04 pm for possession of controlled substance.

[18] With both men under arrest, Constable Poppe continued to search the vehicle. In his view, this search was incident to the arrest for possession. He was looking for further evidence to support that arrest, specifically more illegal substances or drug paraphernalia. He was also looking for further confirmation of the men’s identities. He performed a thorough search of the interior of the vehicle and found on the rear passenger seat a black camera bag. Within the camera bag were two chunks of what he suspected was methamphetamine, two dime bags of suspected fentanyl, a pipe, scales and the applicant’s health card. He re-arrested the men for possession for the purpose of trafficking.

[19] Constable Poppe passed custody of the two men to another officer who had arrived. He arranged for the SUV to be towed to the impound lot. The SUV was towed because it was being seized incident to the arrest and to determine if it was stolen. Constable Poppe did not personally follow up with whether the vehicle had in fact been stolen. However, he did testify that neither the applicant nor his passenger was charged with having stolen the vehicle. The owner of the vehicle was never determined. It had been registered to someone who sold it off and the vehicle was never re-registered with the MTO again.

[20] On cross-examination, Constable Poppe conceded that although he initially detained the applicant in relation to the possible stolen vehicle, the applicant was never arrested in relation to the stolen vehicle. He also indicated that the applicant had advised him that he had just purchased the vehicle and had not yet registered it, the point being that no registration would be found. However, Constable Poppe testified that he was looking for any proof of ownership, or a receipt for the sale, or any documentation indicating that the vehicle might be registered to somebody else.

[21] He did not conduct a VIN search prior to searching the car, but only after searching the car. In Constable Poppe’s opinion, a VIN search would not have given him any evidence as it would not show the applicant as the owner, just the prior owner. He disagreed that this would have been faster than doing a search of the glovebox. From his experience, documents like the ownership are usually in the glove box and he does not usually run VINs.

[22] Constable Poppe conceded that this was the first time he had dealt with this specific fact situation. It was not a normal scenario.

[23] Constable Poppe did not recall the applicant providing a name to him of the person from whom he had purchased the vehicle. The applicant had told him that he was not licenced to drive and that he did not have any form of identification upon his person.

[24] Constable Poppe did not notice that the Monster logo box had “Patient Medication Package” typed upon it. He maintained that ownership documentation, while often found in plastic folders, can be found in such receptacles. He conceded that he had never found documentation in a box with labels indicating that it contained medication.

[25] Constable Poppe did not give either man a s. 10 caution when they were initially detained. The first time that they were given a s. 10 caution was when he arrested both of them upon finding the camera bag. He asked about the ownership of the vehicle prior to placing the applicant in custody. He denied conducting any further questions after he placed him in his cruiser.

[26] Constable Poppe disagreed that when he found the Monster logo box there was no risk to his personal safety. In his view, the passenger was still at large, although he did agree that he was not nearby. Up until that time, Constable Poppe agreed that the passenger had not done anything to concern him. Nonetheless, Constable Poppe was cognizant that another person was involved and in the vicinity. He repeated that the scene was a dynamic situation.

[27] It was Constable Poppe’s belief that after he arrested the men, he did have the right to tow the vehicle. He felt that the search, however, was incidental to arrest and he was not required to tow the vehicle to the impound lot and obtain a warrant.

[28] When he initially pulled his vehicle into the lot, he parked behind the SUV so that the two men had to walk past him to get to the KFC. He felt that they were trying to avoid him and that they did not want to speak with him. He discerned this from their body language. They were “walking away with a purpose”.

[29] Despite not personally knowing or recognizing the applicant, Constable Poppe admitted that he knew from his communication with the dispatcher that the applicant was known to police and had been arrested before. In fact, he admitted that he knew that the applicant had been arrested for drug offences in the past. The dispatcher gave him a sense of who he was dealing with. He maintained that this was not part of his thought process as he searched the glovebox. He denied that he was looking for evidence of other criminal activity at that time.

POSITIONS OF THE PARTIES:

[30] The applicant argues that Constable Poppe’s warrantless search of the glovebox, and more specifically, the small Monster logo box within the glovebox, violated his s.8 Charter right against unlawful search and seizure. The applicant further argues that these illegal searches led to the subsequent illegal search of his vehicle incident to arrest. Accordingly, the applicant’s arrest violated his s.9 Charter rights as it was premised on these illegal searches. In the applicant’s submission, all of the evidence obtained as a result of the unlawful search of the applicant’s vehicle should be excluded pursuant to s. 24 (2) of the Charter so as to not bring the administration of justice into disrepute.

[31] The Crown argues that the applicant had no expectation of privacy in the vehicle as it was stolen, because it was unplated and because the applicant’s driver’s licence was suspended at the time. Accordingly, the Crown submits that the applicant does not have standing under s. 8 of the Charter.

[32] Even if the applicant does have standing, the Crown argues that Constable Poppe was nonetheless entitled to search the vehicle for documentation pertaining to the ownership and registration of the vehicle. Accordingly, the search of the glovebox was reasonable as was the search of the Monster logo box. Following the discovery of the narcotics in the Monster logo box, Constable Poppe made a lawful arrest and his subsequent search of the vehicle and camera bag was a lawful search incident to arrest.

THE LAW RE: SECTION 8:

[33] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure. The Supreme Court of Canada recognized in Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, that the purpose of s. 8 is to safeguard the individual’s reasonable expectation of privacy.

[34] If a reasonable expectation of privacy is found to exist, a search intruding upon that interest will engage s. 8 of the Charter. Thus, the first step of the analysis is to determine whether the applicant has a reasonable expectation of privacy in the place or thing searched. The next step is to determine whether the search was reasonable.

Reasonable Expectation of Privacy:

[35] As the right conferred under s. 8 protects an individual’s right to privacy, in order to invoke s. 8 of the Charter, an applicant must show that his or her personal right to privacy has been violated. He must establish a reasonable expectation of privacy in the place and/or thing searched.

[36] Thus, in R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128 at para. 45, Cory J. set out a test based on the “totality of the circumstances” to determine whether an individual has a reasonable expectation of privacy in a place and/or thing. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(i) Presence at the time of the search;

(ii) Possession or control of the property or place searched;

(iii) Ownership of the property or place;

(iv) Historical use of the property or item;

(v) The ability to regulate access, including the right to admit or exclude others from the place;

(vi) The existence of a subjective expectation of privacy; and

(vii) The objective reasonableness of the expectation.

[37] There have been many cases examining an individual’s reasonable expectation of privacy in the interior of a motor vehicle. It has been found to be of a comparatively lesser nature than that enjoyed in a home or office (see: R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67 at para. 22). The reasonable expectation of privacy in relation to a car is even further reduced when the car belongs to another person (see: R. v. Belnavis, 1997 320 (SCC), [1997] 3 S.C.R. 341 at para. 40).

[38] The accused is permitted to rely upon the “Crown’s theory” that he was the owner of the subject matter that forms the basis of the charges, without having to formally prove that to be the case. Thus, the subjective expectation that is one of the Edwards factors can be established while maintaining the right against self-incrimination (see: R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696). However, this approach does not automatically result in standing.

Reasonableness of the Search:

[39] In R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, it was held that a search involving a Charter-protected privacy interest will be reasonable if the police are authorized by law to conduct the search, if the law authorizing the search is reasonable, and if the search is conducted in a reasonable manner.

[40] A warrantless search and seizure is presumptively unlawful. However, a warrantless search and seizure incidental to arrest will be lawful. There are three main purposes of a search incidental to arrest: (1) to ensure the safety of the police and public, (2) to protect evidence from destruction at the hands of the arrestee, and (3) the discovery of evidence that can be used at trial. The search must be “truly incidental” to the arrest, meaning the subjective and objective intention of the police must be to achieve some valid purpose associated with the search (see: R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51).

Onus:

[41] The applicant bears the onus, on a balance of probabilities, to prove that his s. 8 Charter rights were infringed. This includes establishing that he or she has a reasonable expectation of privacy. However, on a warrantless search the burden will shift to the Crown to demonstrate on a balance of probabilities that the search was reasonable (see: R. v. Mann, 2004 SCC 52. [2004] 3 S.C.R. 59 at paras. 36 and 49).

ANALYSIS:

Findings of Credibility:

[42] Constable Poppe presented as a forthright witness. He relied upon his notes, appropriately, from time to time to refresh his memory. He obviously is a younger officer who did not come across as a polished witness. This was to his credit.

[43] On cross-examination, I felt that Constable Poppe generally made concessions where appropriate, while also maintaining the substance of his testimony from his examination in chief. He could have made some concessions more readily in relation to the extent to which he felt that there was an element of risk that motivated his search of the vehicle. In my view, he was aware that a search in relation to ensuring his safety would justify the search and that he sought to stretch his evidence in that regard. However, that defect in his evidence did not detract from his testimony as a whole.

[44] I accept that Constable Poppe, a relatively inexperienced police officer, was faced with what he termed a “dynamic situation” and what he conceded was an atypical traffic stop. He was alone. He admitted that the dispatcher had given him information about the applicant’s CPIC record. I accept that his subjective purpose in searching the glovebox and the “Monster” logo box was to locate documentation in respect of the vehicle’s ownership. I also accept that he did not notice the “Patient Medication Package” notation on the Monster logo box.

Reasonable Expectation of Privacy in the Ford SUV:

[45] The applicant refers to Belnavis, supra, as support for the proposition that he had a reasonable expectation of standing in the Ford SUV. In Belnavis, the police stopped a car for speeding and ran a computer check after the accused driver could produce no documentation. While the computer check was being processed, the officer returned to the car to look for any pertinent documents. He questioned a passenger who had remained in the vehicle and noticed garbage bags on the seat beside her. The bags contained stolen clothes. The trial judge found the search to be unreasonable contrary to s. 8 of the Charter and excluded the evidence. The accused was acquitted.

[46] On appeal, the majority of the Supreme Court of Canada, per Cory J., held that the driver of the car, driving with the apparent permission of the owner, had a reasonable expectation of privacy in the vehicle. Searching the vehicle without a warrant constituted a breach of s. 8 of the Charter. The passenger, on the other hand, had no expectation of privacy either in relation to the vehicle or the items seized, and could not claim a violation of her s. 8 rights. On the totality of the circumstances, the passenger’s connection to the vehicle was extremely tenuous.

[47] The Crown relies heavily upon R. v. Balendra, [2016] O.J. No. 4466 (S.C.J.), aff’d 2019 ONCA 68, [2019] O.J. No. 608 (ONCA), arguing that it is dispositive of the issue of standing and therefore, this application. In Balendra, the police observed what they believed was a stolen van being driven by the accused. The vehicle subsequently was pulled over when it made what was considered an evasive maneuver. Following the arrest of the accused for possession of stolen property and careless driving a search of the van was conducted without a warrant. Healey J. held that Balendra did not have a reasonable expectation of privacy in the van, stating as follows at paras. 44 and 45:

44 Generally, individuals can have a reasonable expectation that state agents cannot enter a vehicle driven by them in order to examine its contents: R. v. Belnavis, 1996 4007 (ON CA), [1996] O.J. No. 1853; (1996) 29 O.R. (3d) 321 (Ont. C.A.); confirmed 1997 320 (SCC), [1997] 3 S.C.R. 341. However, this was not a case, such as Belnavis, where there is any evidence that the driver had the consent of the owner to operate the vehicle, which in Belnavis was found to give rise to the driver’s ability to control who entered or who was excluded from the vehicle. Such control was considered to be central to the privacy concept: para. 31 (C.A.).

45 Applying the Edwards framework to the facts surrounding the vehicle in this case, the applicant cannot establish that he had a reasonable expectation of privacy in relation to that location. Of central importance to this case, the applicant’s suspended status as a driver means that he can have no expectation of privacy in respect of a vehicle that he is without lawful status to be operating. What he can expect, in fact, is that on discovery of his presence in and operation of a vehicle, he will be immediately stopped from having any possession of or control over that vehicle in accordance with the provisions of the Highway Traffic Act. His control is fleeting at best. The fact that he holds the keys does not cloak him with the authority to control who enters or uses that vehicle. Even more significantly, the evidence establishes that the applicant was not the owner of the vehicle. …

[48] The Ontario Court of Appeal dismissed Balendra’s appeal, holding that the trial judge had correctly determined that the appellant lacked a reasonable expectation of privacy in the stolen van. Harvison Young J.A., for the court, stated as follows, at paras. 53 and 54:

53 The appellant argues that he had a reasonable expectation of privacy in the van because he had “care and control” of the van by virtue of driving it. I disagree.

54 Sgt. Humber searched the van which the appellant had been driving and found, among other things, a bag containing 16 credit cards hidden behind a loose ceiling compartment. The trial judge found that the appellant had not established a reasonable expectation of privacy in the van, noting that this was not a case, such as R. v. Belnavis, 1997 320 (SCC), [1997] 3 S.C.R. 341, where the driver had the apparent consent of the owner to operate the vehicle. Here, Sgt. Humber testified that the van had been registered as a stolen vehicle. The appellant offered no contradictory evidence regarding his ownership of the van, or regarding any authorization given by the registered owner to operate the vehicle. In short, as the trial judge found, there was no evidence to establish that the appellant had any ability to regulate access to the van or any legitimate privacy interest with respect to it.

[49] I do not conclude that this case is on all fours with the Balendra decision. In Balendra, the vehicle was clearly stolen and the accused did not have a valid driver’s licence. I do not accept that a driver without a valid driver’s licence operating a motor vehicle which he owns, or which he is in possession of with the consent of the owner, necessarily loses their expectation of privacy in relation to that vehicle. There are various reasons why a driver’s licence may be suspended and not all of them may vitiate a reasonable expectation of privacy in the vehicle.

[50] The difficulty in this case is that on the evidence before me I cannot determine whether the Ford SUV was a stolen vehicle or not. The explanation purportedly given by the accused to Constable Poppe was that he had just purchased the vehicle and had not yet registered it. Constable Poppe candidly indicated that the true owner of the vehicle was never determined. I will return to this issue.

[51] In looking at the totality of the circumstances of this case, and the Edwards analysis, some of the factors do not fit easily with respect to a newly acquired vehicle. There is no historical use by the applicant of this vehicle, for example. This would not be a significant factor if the vehicle was recently purchased. The applicant was present when the search was conducted. He was or had been in possession and control of the vehicle when observed by Constable Poppe. He was arguably not in position to regulate access to or exclude people from the vehicle, as an unlicenced driver, although it is less clear if he could do so as the owner of the vehicle. Although he told Constable Poppe that he owned the vehicle, I cannot make that determination on the evidence before me. I accept that the applicant would have had a subjective expectation of privacy in respect of the vehicle if he owned it.

[52] Factoring against a reasonable expectation of privacy is that the applicant was unlicenced. As set out in Balendra, this is an important factor, although I have concerns with it being determinative. It is true that a suspended driver can expect to immediately lose his or her ability to maintain control and possession of the vehicle he or she was operating. Also important, the applicant was driving a vehicle without licence plates on the front or rear of the vehicle. Even a newly acquired vehicle should have licence plates affixed upon it, even if the plates are temporary. The lack of plates will also immediately result in police involvement and coupled with an inability to produce a valid driver’s licence, loss of possession and control of the vehicle. Thus, it is not objectively reasonable for an unlicenced driver operating a motor vehicle without licence plates, who cannot produce documentation demonstrating an ownership interest in the vehicle, or the consent to possession of the vehicle by its owner, to have an expectation of privacy in the vehicle.

[53] As noted in the cases, vehicles are afforded considerably less privacy rights than a home or an office.

[54] The Crown refers to the case of R. v. Van Duong, [2018] O.J. No. 610 (ONCA). In that case, the applicants had bought a house through an elaborate fraud and converted it into a meth lab. Despite having possession of the home, and being the registered owners of the home, the court held that the applicants did not have standing as they had no legal right to ownership of the home.

[55] However, once again I am unable to say on the evidence if the applicant in this case had a legal right in the Ford SUV. Certainly, there is no evidence that he obtained ownership of the vehicle through an “elaborate fraud”. I do not consider the Van Duong case as analogous to driving without a valid driver’s licence.

[56] I now return to my inability to determine ownership of the vehicle. If the applicant was not the owner of the vehicle, or driving with the owner’s consent, then I agree with the submissions of the Crown that he lacks any reasonable expectation of privacy in the vehicle. That would be the Balendra situation. If he was the owner of the vehicle than a very important Edwards factor tilts in the applicant’s favour and I would have no hesitancy in finding that he did have a reasonable expectation of privacy, even if low.

[57] With respect to the vehicle, this is not a case in which the accused can rely upon the “Crown’s theory” of the case. It is the Crown’s theory that even though the applicant had care and control of the vehicle, the vehicle was stolen. In my view, this is a case in which the burden of proof is determinative of standing. At this stage of the inquiry, the burden is upon the applicant to establish that he has a reasonable expectation of privacy in the vehicle on a balance of probabilities.

[58] Code J. in R. v. Haye, 2013 ONSC 1208 described the burden of proof in determining credibility issues with respect to the only evidence that could establish whether an arrest was lawful. He stated at para. 46, as follows:

46 As noted at the beginning of these reasons, the burden of proof in relation to the central s. 9 Charter issue is not on the Crown. That burden is on the defence, on a balance of probabilities. The burden of proof must be borne in mind, when deciding the central issue of credibility in the case, because the evidentiary dispute between the parties relates to the very existence of the only event that could provide sufficient grounds to arrest. In other words, the Charter violation cannot be established by the defence unless it is more probable than not that the central event did not occur. Mr. Struthers concedes there are some difficulties with Haye’s account but, he submits, Haye’s account is more probable than the very improbable police evidence. As Lamer J. (as he then was) put it in R. v. Collins (1987), 1987 84 (SCC) 33 C.C.C. (3d) 1 at 14 (S.C.C.), giving the judgment of the majority:

The standard of persuasion required is only the civil standard of the balance of probabilities and, because of this, the allocation of the burden of persuasion means only that, in a case where the evidence does not establish whether or not the appellant’s rights were infringed, the court must conclude that they were not. [emphasis added by Code J.]

[59] While no inferences can be made from the applicant’s exercising his right not to testify, it was open for him to lead evidence in some other fashion that he had acquired the vehicle shortly before February 2, 2020. He has not done so. This was raised by the Court of Appeal in Balendra as being problematic from the accused’s perspective. It is in this case as well. Accordingly, I cannot conclude that the applicant was the vehicle’s owner or was in possession of the vehicle with the owner’s permission. Therefore, I find that since he was unlicenced and driving a vehicle without licence plates, the applicant has in the totality of the circumstances no reasonable expectation of privacy in the Ford SUV.

Reasonable Expectation of Privacy in the Monster Logo Box and Camera Bag:

[60] The applicant can rely upon the Crown’s theory of the case in respect of both the Monster logo box and with respect to the camera bag, as the drug related offences emanate from the contents of these items. It is the Crown’s theory that the applicant was the owner of the Monster logo box and the camera bag and thus, the drugs located inside them.

[61] Both the box and the bag were in the possession of the applicant, as they were in the vehicle he was operating. The box had a label identifying it as Patient Medication Package, although it is not clear whose box it was. Again, the Crown’s theory is that it was the applicant’s box. The applicant was present when the two objects were located. Objectively, it is reasonable for drivers and passengers to have an expectation of privacy in respect of receptacles with them in vehicles. Unlike the green garbage bag referred to in Belnavis, a camera bag and a box for holding medication raises a stronger probability of ownership rights.

[62] On the totality of the circumstances, the applicant did have a reasonable expectation of privacy in respect of both the Monster logo box and the camera bag. He may assert a violation of his s. 8 rights in relation to the searches of these items.

Reasonableness of the Searches:

[63] Notwithstanding my conclusion that the applicant has failed to prove on a balance of probabilities that he had a reasonable expectation of privacy in the Ford SUV, I will carry on the analysis in case an appellate court takes a different view.

[64] There is a distinction between an investigative detention and an arrest. In this case, Constable Poppe did not arrest the applicant for driving without a valid licence, although he felt that he could do so. Instead, he investigatively detained the applicant while he attempted to ascertain whether the Ford SUV was stolen. A police officer has a common law right to detain people for investigative purposes if the officer has a reasonable suspicion that the individual is implicated in criminal activity under investigation (see: R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52). In my view Constable Poppe’s suspicions that the applicant was driving a stolen vehicle were reasonable in light of the lack of licence plates and the inability of the applicant to produce any documentation whatsoever confirming ownership.

[65] A search incident to an investigative detention is justified if it is for the officer’s own safety or the safety of others. As noted above, I reject Constable Poppe’s attempt to justify this search based on a bona fide concern for safety. By the time he commenced his search, the applicant was in the police cruiser. The passenger was in the KFC. Although I accept that he was by himself and this was a “dynamic situation”, had Constable Poppe had legitimate safety concerns he would have waited for the other officers to arrive before he began any search. There was no concern in this case relating to a weapon. In my view, the search cannot be justified as being a safety search incidental to an investigative detention.

[66] The Crown counters with R. v. Debot, [1986] O.J. No. 994, 1986 113 (ONCA), affirmed on other grounds, 1989 13 (SCC), [1989] 2 S.C.R. 1140, [1989] 2 S.C.R. 1140. In that case, the Ontario Court of Appeal upheld a search incidental to arrest that preceded the actual arrest. Martin J.A. for the court stated as follows:

The reasoning of Traynor J. contemplates the situation where an officer has probable cause to arrest the suspect but postpones his or her decision to arrest the suspect. The officer, thus, avoids making an actual arrest, if the search proves that his or her belief that there was probable cause was erroneous. In my view, it may also very well be that a police officer, notwithstanding that he or she has reasonable and probable grounds upon which to make an arrest, may decide that, if the search does not disclose evidence of the offence, there would be no chance of obtaining a conviction. Hence, the officer may decide not to proceed further by making an arrest. I am of the view that Constable Birs, prior to searching the respondent, had reasonable and probable grounds to believe that DeBot had committed an indictable offence: namely, possession of a controlled drug, methamphetamine, for the purpose of trafficking. Constable Birs was justified, pursuant to s. 450 of the Code, in arresting DeBot without warrant. Holding that the search in the present case was incident to a valid arrest is consistent with the policy underlying the justification for a search incident to a valid arrest and is not precluded by authority.

In my view, in addition to being authorized under s. 37 of the Food and Drugs Act, the search of the respondent, in the circumstances, was properly incident to a lawful arrest. The search of the respondent did not contravene s. 8 of the Charter.

[67] Accordingly, where reasonable and probable grounds exist, subjectively and objectively, to arrest, and the officer intends to arrest, a search will still be a lawful search incident to arrest so long as it immediately precedes the formal arrest. Reasonable grounds are established where on an objective view of the totality of the circumstances, the officer has a reasonable suspicion that the particular person is implicated in the criminal activity under investigation and that the detention is necessary (see: Mann, supra, at paras. 34 and 45).

[68] Constable Poppe had probable cause to arrest the applicant with respect to operating a motor vehicle while his licence was suspended. However, he opted to determine whether the vehicle was stolen before doing so. I also find that Constable Poppe’s suspicion that the vehicle might be stolen was reasonable in all the circumstances. The applicant had indicated that he did not have ownership papers on him. There were no licence plates on the vehicle. Constable Poppe testified that if he had not also suspected that the vehicle was stolen he would have normally arrested a suspended driver and would have searched the vehicle to find evidence of the suspended licence, beginning with the glovebox. In my view, the circumstances set out in Debot exist in this case.

[69] I also conclude that the search was reasonable under the HTA. As Cory J. indicated in Belnavis, at para. 28:

28 There is no question that Constable Boyce properly stopped the vehicle for a speeding violation. Once the car had been pulled over and the driver said she did not have any ownership information, the officer had every right to look for documents pertaining to the ownership or registration of the vehicle. Similarly, he had the right to open the back door and look into the rear of the vehicle for safety reasons and to speak with the passenger in the back seat. See R. v. Mellenthin, 1992 50 (SCC), [1992] 3 S.C.R. 615, at p. 623. The garbage bags full of new clothes with the price tags still attached were then in plain view in the back seat.

[70] The applicant and his passenger ought not to be surprised that the lack of licence plates on the Ford SUV resulted in Constable Poppe detaining them. Constable Poppe was clearly justified in pulling up behind the applicant in the parking lot and making inquiries with respect to the vehicle. Furthermore, I find that Constable Poppe had a valid HTA purpose in detaining the applicant while he investigated whether the vehicle might also be stolen. Referencing the test in Collins, supra, the warrantless search was (1) authorized by the HTA, as set out by Cory J.; (2) the HTA imposes reasonable regulations on those that drive automobiles, including producing documentation upon request; and (3) if limited to places where ownership documentation would be located, the search was reasonably carried out.

[71] While counsel for the applicant argued that Constable Poppe could have simply opted to run the VIN, I accept that he is not required to undertake what counsel classified as the “best course of action”. He only had to take a reasonable course of action. Whether or not a VIN search was also a reasonable option, or even a better option, Constable Poppe’s decision to search the glovebox for ownership documentation or a receipt of sale, was a reasonable choice in the circumstances.

[72] I agree with Constable Poppe’s belief that the glovebox would be a reasonable location to look for such documentation.

[73] At this juncture, I will address the applicant’s argument that Constable Poppe was in possession of the applicant’s CPIC information when he searched the glovebox. I am being asked to find that Constable Poppe was actually searching for drugs under the guise of looking for ownership documentation.

[74] I decline to do so. I accept Constable Poppe’s testimony that he believed that he had cause to arrest the applicant for driving while his licence was suspended. I further accept that his more pressing concern was determining whether the Ford SUV had been stolen. Locating ownership, registration, insurance documentation, or a purchase receipt would accomplish Constable Poppe’s goal in ascertaining the identity of the owner, or previous owner in the event the applicant’s story of recently purchasing the vehicle could be corroborated. The glovebox was a reasonable location to commence his search for those documents. Even if Constable Poppe had a dual purpose in searching the car, one relating to determining the identity of the owner of the vehicle and one relating to possible discovery of drugs, so long as one of the purposes for searching the vehicle was proper the search would be lawful (see: R. v. Caprara, [2006] O.J. No. 2210, 2006 18518 (ONCA) at para. 8).

[75] I do agree that when Constable Poppe commenced his search of the Ford SUV he had no right to search for drugs as he had not detained or arrested the applicant for a drug or drug related offence. Instead the applicant had been investigatively detained given Constable Poppe’s legitimate suspicions that the vehicle might be stolen. Constable Poppe’s search was required to be restricted to places where he might reasonably expect to locate documentation that would assist him in determining if the vehicle was stolen. The glovebox was one such place.

[76] The search of the glovebox, which I find was reasonable, led to the discovery of the Monster logo box. Was it reasonable for Constable Poppe to search the Monster logo box?

[77] A photograph of the box was made an exhibit on the Application. The box is rectangular in shape and approximately six inches in length, three inches in width and about an inch high. It has prominent green claw marks upon it (hence “Monster” logo). The “Patient Medication Package” is there to be seen, but could reasonably be missed on quick inspection. The claw marks likely would impede one’s ability to immediately perceive that this was possibly a box for prescription medication. Even if the package was originally for prescription medication, that would not preclude the box from later being used to hold something else, including documentation pertaining to the vehicle.

[78] It was not an unreasonable assumption for Constable Poppe to make that a container of this size might contain documentation pertaining to the ownership of the vehicle. However, this would not be the most typical container for such documentation to be located. A folder or envelop would have been much more typical. It is important to my analysis that the Monster logo box was found in the glovebox, where documentation is often located. The same container located under the seat, in the rear seat, or in the trunk, for example, would not necessarily give rise to the same finding on reasonableness. I also accept his evidence that the primary purpose of his search at this juncture continued to be to locate documentation pertaining to ownership. This was a valid purpose in pursuit of the HTA stop. It would not justify a search of the entire vehicle, for example.

[79] I conclude that the Crown has met its onus of demonstrating on a balance of probabilities that the search of the Monster logo box was reasonable, pursuant to Debot or the HTA stop.

[80] Once the cocaine was discovered within the Monster logo box, Constable Poppe arrested both men. He then continued his search of the vehicle, resulting in the evidence found within the camera bag. Whether the search of the camera bag was reasonable depends upon whether Constable Poppe could rely on any of the justifications set out in Caslake, supra.

[81] As I have already indicated, I reject Constable Poppe’s explanation that his search of the Ford SUV related to safety. At this point in time he now had both men in custody. They no longer posed any threat to him. In my opinion, the search cannot be considered incidental to arrest on that basis.

[82] Similarly, Constable Poppe’s search could not have been for the purpose of preserving evidence from possible destruction. I reiterate that the two men were in custody. He had the power to have the vehicle towed. There was no imminent threat that evidence might be destroyed.

[83] Accordingly, in order to be a search incidental to arrest, the purpose of the search had to be to discover further evidence that could be used at trial. Viewed subjectively, I accept Constable Poppe’s testimony that he was now searching the interior of the vehicle for the purpose of locating either more drugs or drug paraphernalia. He also continued to look for any evidence confirming the identities of the two men. Objectively, searching the remainder of the vehicle was reasonable for the purpose of discovering more evidence in relation to the drug offences. This resulted in the discovery of the camera bag.

[84] In R. v. Rochwell, [2012] O.J. No. 4808, 2012 ONSC 5594, the police stopped the accused for a traffic violation and smelled marijuana in his vehicle. They arrested him for possession of marijuana. There was a locked briefcase on the floor in the rear seat area of the vehicle. The accused refused to give the police officers the combination. Code J. held that the police were justified in prying open the briefcase without first obtaining a warrant. Their purpose fell squarely within the third Caslake purpose, namely “the discovery of evidence which can be used at the arrestee’s trial”. Code J. also noted that it is permissible for the police to search for more evidence of the same type that has already been found.

[85] For the same reasons, I find that it was justifiable for Constable Poppe to search inside the camera bag for his stated purpose of looking for more drugs and drug paraphernalia. The search of the camera bag was objectively reasonable as incidental to the applicant’s arrest.

[86] For the foregoing reasons, I find that none of Constable Poppe’s searches violated the applicant’s s.8 Charter rights. Nonetheless, I will still complete the s. 24(2) analysis.

SECTIONS 9 and 10:

[87] Section 9 of the Charter protects individuals from being arbitrarily detained or imprisoned.

[88] It was not contested by the applicant that Constable Poppe was justified in detaining the applicant on the basis of his failure to have licence plates on the Ford SUV. Furthermore, it was not argued that it was unlawful to detain the applicant as a result of his driving while his driver’s licence was suspended. Rather, the applicant submits that if he was arrested due to an illegal search, his s. 9 Charter right was violated.

[89] As I have concluded that the applicant’s s. 8 rights were not infringed, I need not consider s. 9 of the Charter. However, I recognize that had the applicant’s s. 8 rights been violated, his arrest for drug offences would have been premised on an unlawful search, and therefore unlawful itself.

[90] Section 10 of the Charter was mentioned during argument as Constable Poppe did not provide the applicant with any s. 10 caution until arresting him following his search of the camera bag. It was not raised in the Notice of Application and the applicant did not pursue it other than in passing. I note that there is a long line of cases that s. 10 (b) rights are subject to s. 1 reasonable limits in HTA investigations (see: Haye, supra, at para. 50).

SECTION 24(2):

[91] Although I have found that Constable Poppe’s searches in this case were reasonable, I will nevertheless complete the s. 24 (2) analysis. Section 24(2) provides as follows:

24(2) Where…a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[92] The Supreme Court of Canada established a three-part analysis in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, [2009] 2 S.C.R. 353, in which the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:

(1) The seriousness of the Charter-infringing state conduct;

(2) The impact of the breach on the Charter-protected interests of the accused; and

(3) Society’s interest in the adjudication of the case on its merits.

The seriousness of the Charter-infringing state conduct:

[93] At this stage of the analysis, the court must consider the nature of the police conduct that infringed the Charter right and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, thus preserving public confidence in the rule of law (Grant, supra.).

[94] Constable Poppe was an inexperienced police officer, faced with a novel set of circumstances. I do not intend to suggest that young officers have carte blanche to ignore Charter rights, it is simply evidence that he may have been more likely to make inadvertent errors. He was alone and dealing with two men. I accept that this was a dynamic situation, as he described it. There might have been other, less intrusive methods to determine the ownership of the vehicle, but a police officer is only required to act reasonably. It may have been preferable for Constable Poppe to have first arrested the applicant with respect to driving with a suspended licence prior to commencing the search, but as asserted by the Crown, the Debot search prior to arrest gives the officer some leeway to decide not to lay charges where charges are not warranted.

[95] I have rejected the submission that Constable Poppe was really motivated to locate drugs when he started his search. His search of the glovebox, and the Monster logo box, were places where one might reasonably expect to find ownership papers. The Monster logo box was in a location that might reasonably store documentation, as opposed to somewhere else in the vehicle. If searching the box breached the applicant’s s. 8 rights, it was close to the line. I do not find that Constable Poppe was acting brazenly or recklessly with respect to the applicant’s Charter rights. In my view, the first factor weighs in favour of admission of the evidence.

The impact of the breach on the Charter-protected interests of the accused:

[96] The next stage of the analysis requires the court to examine the Charter interest or interests protected, and the degree to which the violation affected those interests. “The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute” (per Grant, supra).

[97] The protection afforded by s. 8 of the Charter is an important one, the right to privacy. It shields the individual from state intrusion into certain spheres of his or her life, unless that intrusion is “reasonable”. The word “reasonable” implies that some intrusion is obviously justifiable. One reasonable justification is regulating the use of automobiles on our public highways. This is a valid safety concern.

[98] As I have set out above, a motor vehicle attracts a lower expectation of privacy than an office or a home. Again, it bears repeating that in Belnavis, Cory J. found that where a driver indicates that they do not have ownership documentation, a police officer making a legitimate HTA stop is justified in looking for documentation to establish ownership. In the case before me, not only was the applicant driving without a valid driver’s licence, but he was operating an unplated vehicle. If there was any reasonable expectation of privacy in respect of the Ford SUV by the applicant, it was even lower than usual for a motor vehicle. If the vehicle were stolen, there would be no reasonable expectation of privacy.

[99] Constable Poppe also opened the Monster logo box and the camera bag, items to which I have found the applicant clearly had a reasonable expectation of privacy. They are both the type of containers in which a person might store personal items of value. However, they were not, for example, a USB drive or a locked briefcase.

[100] Overall, this factor leans slightly in the direction of excluding the evidence.

Society’s interest in the adjudication of the case on its merits:

[101] As the cases indicate, this factor almost always favours inclusion of the evidence. Society has a legitimate interest in prosecuting drug related offences. Cocaine, methamphetamine and fentanyl are classified as Substance I drugs for a reason. The negative impact of such drugs on our community is clear and it is highly desirable to prosecute offences related to their trafficking and possession and to determine these cases on their merits.

[102] The evidence is inherently reliable. Its exclusion effectively thwarts the Crown’s case. This factor weighs heavily, as always, towards admission of the evidence.

Conclusion re: s. 24 (2):

[103] In all the circumstances, I am not persuaded that the admission at trial of the evidence found in the Ford SUV, the Monster logo box and the camera bag would bring the administration of justice into disrepute.

[104] If there were breaches of the applicant’s s. 8 and 9 Charter rights, they were not done wilfully, recklessly or flagrantly. Constable Poppe was faced with a difficult situation and had reasonable and probable grounds for initiating the search of the glovebox for ownership documentation, an act which the Supreme Court of Canada has authorized in Belnavis even where the driver is in lawful possession of the vehicle. If there was a breach in respect of the Monster logo box, it was a very close call as opposed to a wilful or reckless decision to violate the applicant’s Charter rights.

SUMMARY OF FINDINGS:

[105] I summarize my findings on this application as follows:

• The applicant has not met the burden of establishing that he had a reasonable expectation of privacy in respect of the Ford SUV he was driving.

• The applicant did have a reasonable expectation of privacy in respect of the Monster logo box and the camera bag.

• If the applicant did have a reasonable expectation of privacy in relation to the Ford SUV, Constable Poppe’s search of the glovebox was lawful under the HTA and reasonable given that ownership documentation is often found in gloveboxes.

• Constable Poppe’s search of the Monster logo box was also a lawful search pursuant to the HTA, given that it was found within the glovebox and might reasonably contain ownership documentation.

• Constable Poppe’s search of the camera bag was a lawful search incident to arrest in furtherance of securing evidence for trial.

• If I am in error, the balance of factors favours the admission of the evidence under s. 24(2) of the Charter.

[106] In essence, the applicant did not have a reasonable expectation of privacy in the Ford SUV in the circumstances before me. Accordingly, Constable Poppe did not violate his s. 8 Charter rights when he searched the Ford’s glovebox looking for ownership documentation. Upon finding the Monster logo box, a container which might reasonably contain ownership documentation, located in a place where such documentation might be reasonably found, Constable Poppe had a lawful right to search it based on the HTA stop. Once drugs were found within the Monster logo box and the applicant was arrested, Constable Poppe executed a lawful search of the remainder of the vehicle, and the camera bag, incident to arrest to find further evidence in relation to drug trafficking.

[107] Accordingly, the application is dismissed and the evidence is admissible at trial.

Justice Spencer Nicholson

Date: March 24, 2021