COURT FILE NO.: CRIMJ(P) 1901/19
DATE: 2021 08 04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Gursharn Gill for the Crown
- and -
DWAYNE PHILLIPS
Ehsan Ghebrai for the Accused
HEARD July 5, 6, and 7, 2021
REASONS FOR JUDGMENT
Fowler Byrne J.
[1] Mr. Phillips was sitting in a parked car, engine off, in the visitor’s parking lot of a townhouse complex in the city of Brampton. The police drove up and parked behind the car. Mr. Phillips had loose cannabis in his possession. The police took his identification, ran it through the Canadian Police Information Centre (“CPIC”) system and discovered an outstanding warrant for his committal. While the police took steps to verify the warrant, one officer engaged Mr. Phillips in conversation, which included why Mr. Phillips was in the parking lot, Mr. Phillips’ family, his diabetes, and the legality of having cannabis in a vehicle. Nothing was mentioned of the warrant and he was not advised that the was being investigated for an infraction under Cannabis Control Act, 2017, S.O. 2017, c.26, Sched. 1 (“CCA”).
[2] Approximately 27 minutes later, Mr. Phillips was arrested on the outstanding warrant. He was placed under arrest and put into the police cruiser. He was cautioned and advised of his rights to counsel. The police then searched Mr. Phillips’ car. During that search, they discovered a firearm in a backpack that was on the backseat of the car in which Mr. Phillips was sitting. Mr. Phillips was charged with a number of firearms offences, cautioned and advised of his rights to counsel again.
[3] Mr. Phillips seeks an order excluding the firearm, pursuant to s.24(2) of the Charter, as it was obtained in violation of his rights under sections 8, 9, and 10 of the Charter.
I. Issues
[4] The following issues must be decided:
a) Was Mr. Phillips arbitrarily detained by the officers with the Peel Regional Police, contrary to s.9 of the Charter? In particular,
Was Mr. Phillips detained when the police cruiser parked right behind his car, restricting his ability to drive away, and when the police officer stood right beside the driver’s side door of Mr. Phillips’ car, preventing his exit?
If so, was this detention arbitrary?
b) Was Mr. Phillips denied his right to be promptly informed of the reason for his detention, contrary to s.10(a) of the Charter?
c) Was Mr. Phillips denied his right to retain and instruct counsel without delay and to be informed of that right, contrary to s.10(b) of the Charter?
d) Was Mr. Phillips subjected to an unreasonable search, contrary to s.8 of the Charter?
e) If any of these rights were violated, should the evidence obtained in violation of these rights, namely the firearm, be excluded as evidence in his trial, pursuant to s.24(2) of the Charter?
II. Analysis
A. Arbitrary Detention
i. Was Mr. Phillips Detained?
[5] It is clear that Mr. Phillips was detained.
[6] A detention arises when the police suspend an individual’s liberty through significant physical or psychological restraint: R. v. Grant, 2009 SCC 32, at para. 44. It has been found that a police action of blocking a car with their cruiser creates an atmosphere that would lead a reasonable person to conclude that the police had taken control of a situation, and that it was not possible to leave: R. v. Thompson, 2020 ONCA 264, at para. 58.
[7] P.C. Emilio and P.C. Amaro both testified that they were on proactive community patrol when they entered the townhouse complex located at 7555 Goreway Drive, Brampton, Ontario, in their marked police cruiser. They indicated that they were patrolling the area for trespassers, and to investigate possible drug and alcohol offences. They had authority to patrol the Goreway property for trespassers pursuant to an authorization given by the property management company for the Goreway property.
[8] Mr. Phillips was parked in a visitors’ parking lot, next to the grassed area surrounding the town houses. Mr. Phillips’ car was turned off. He was sitting in the driver’s seat with his window down. The only way for Mr. Phillips to exit the parking space was to start up his car and back up, as to go forward would require him to drive over a curb and onto the lawn.
[9] P.C. Emilio and P.C. Amaro, entered the Goreway property and drove around to the parking area. They spotted Mr. Phillips’ vehicle and parked perpendicularly, right behind his vehicle, with only enough space behind Mr. Phillips’ car to allow P.C. Emilio to open the driver’s side door of the cruiser without hitting Mr. Phillips’ car. P.C. Emilio then approached Mr. Phillips in the car, stood beside Mr. Phillips’ driver’s side door, preventing Mr. Phillips from opening the door without striking the officer. P.C. Emilio admitted that it would not be possible for Mr. Phillips to back out his space or open his door without hitting the police officer. While P.C. Emilio maintained that the position of his cruiser was a “natural” parking spot, he admitted in his evidence that Mr. Phillips was detained at that point.
[10] The Crown argued that just because P.C. Emilio gave evidence that Mr. Phillips was detained did not mean that it constituted legal detention. The Crown argued that Mr. Phillips could have left, had he wanted to. He was not told to not get out, or to put his hands on the steering wheel. The officers, it was argued, were simply patrolling in accordance with the authorization provided by the property manager.
[11] I disagree with the Crown’s position and find that Mr. Phillips was detained from the moment the police cruiser parked behind his car. Mr. Phillips was unable to drive forward or backward. P.C. Emilio exited his vehicle quickly once he parked and stood beside Mr. Phillips’ driver’s side door. Mr. Phillips could not get out. When P.C. Emilio approached the car, Mr. Phillips put his hands on the steering wheel. Mr. Phillips testified that he was not asked to place his hands as such, but given his previous interactions with the police, he knew it was the prudent thing to do. A realistic appraisal of the entire interaction could leave to no other conclusion that Mr. Phillips was detained: R. v. Grant, at para. 32.
ii. Was the Detention Arbitrary?
[12] If there is no statutory or common law power authorizing a detention at that point, the detention is considered arbitrary: R. v. Le, 2019 SCC 34, at para. 124. A detention without at least a reasonable suspicion is unlawful and therefore arbitrary, and therefore a violation of s.9 of the Charter: Grant, at para. 54-55.
[13] The Crown argues that the detention in these circumstances was authorized by both statute and common law. First, the Crown maintains that the detention was authorized under the Trespass to Property Act, R.S.O. 1990, c.T.21 (“TPA”). Secondly, the Crown further argues that the detention was authorized pursuant to the common law right to detain for investigative purposes. Almost immediately after the police approached the vehicle, they discovered unsecured cannabis and thus were investigating under the CCA. Lastly, in his testimony, P.C. Emilio characterized the interaction as a traffic stop, presumably under the Highway Traffic Act, R.S.O. 1990, c.H.8 (“HTA”), which presumably allowed for Mr. Phillip’s detention as well.
[14] I reject the Crown’s argument that Mr. Phillips was legally detained pursuant to the TPA. In the case of R. v. Le, the police invoked the TPA as a source of authority to enter the property and determine if the young men at issue were trespassing. The Supreme Court of Canada rejected this argument, stating:
….as a matter of law, the [TPA] does not authorize the police to engage in investigative detentions on private property. Rather, it provides authorization only for the police to arrest individuals where there are reasonable and probable grounds to believe that they are trespassing (s. 9): para. 130.
[15] On the facts before me, there was no reasonable and probable grounds to suspect that Mr. Phillips was trespassing at the Goreway property. P.C. Emilio and P.C. Amaro testified that they were on proactive patrol, and not that they were called to the scene. No one advised them that Mr. Phillips, or anyone, was trespassing on the Goreway property. They had no information that Mr. Phillips had ever been advised that he was not welcome on that property or served with such a notice. There were no calls about strange vehicles in the parking lot. Mr. Phillips was simply parked in a visitor’s parking spot in the middle of the day, sitting in his car and waiting for a friend. Accordingly, the detention under the TPA was not lawful.
b. Investigative Detention
[16] Under common law, the police are allowed to detain an individual for investigative purposes where, in the totality of circumstances, there are reasonable grounds to suspect a clear nexus between an individual and a recent or still unfolding crime: Le, at para. 131, Grant, at para. 55, R. v. Mann, 2004 SCC 52, at para. 45.
[17] I find that Mr. Phillips was legally detained under the police’s right of investigative detention, not only when they observed readily accessible cannabis in his car, but also when they discovered that there was a possible outstanding committal warrant for Mr. Phillips.
[18] The detention of Mr. Phillips started at approximately 2:05 p.m. that afternoon, when they parked behind him. P.C. Emilio stated that when he got out of his cruiser and stood beside the driver’s side door of Mr. Phillips’ vehicle, he saw an open tin of cannabis on the central console and some loose cannabis on a cigar rolling paper on Mr. Phillips’ lap. He asked Mr. Phillips to put the cannabis that was in the rolling paper onto the dashboard, which he did. By 2:09 p.m., P.C. Emilio had requested identification and was provided with Mr. Phillips’s passport. Around this time, P.C. Amaro also approached the driver’s door of Mr. Phillips’ vehicle. P.C. Amaro testified that he smelled a strong odour of fresh cannabis (not burnt) and saw some cigar papers on the dashboard with loose cannabis on it. He does not mention seeing an open tin on the centre console.
[19] Mr. Phillips denies that there was any loose cannabis on the centre console, and states that he only produced some loose cannabis from his front pocket when P.C. Emilio volunteered to educate him about the cannabis laws. He put it on the dashboard as requested.
[20] P.C. Emilio gave Mr. Phillips’ passport to P.C. Amaro, who returned to the cruiser with it and ran it through the CPIC system. At that time, it was discovered that there was an outstanding committal warrant for Mr. Phillips issued in Barrie, Ontario, wherein Mr. Phillips was sentenced to 7 days in absentia. It caused some confusion though, as the warrant had a proximity restriction. P.C. Emilio returned to the cruiser and he and P.C. Amaro discussed the confusion. It was decided that P.C. Amaro would make some calls to see if it was a warrant that was to be executed.
[21] While P.C. Amaro was awaiting verification of the committal warrant, P.C. Emilio returned to Mr. Phillips’ vehicle and engaged him in conversation. Once P.C. Amaro determined that they could arrest Mr. Phillips on the warrant, they did so at approximately 2:32 p.m. Accordingly, it took approximately 23 minutes to sort out the committal warrant from the time they obtained his identification.
[22] The officers acted appropriately in not arresting Mr. Phillips on the committal warrant without investigating whether it was valid in their jurisdiction, or whether it was something they could enforce. They acted as quickly as they could to verify the warrant. Accordingly, from the time the officer saw the cannabis in Mr. Phillips’ vehicle, however it was found, the detention was lawful and not in violation of Mr. Phillips’ rights under s. 9.
c. Detention under Highway Traffic Act
[23] While the Crown did not argue that Mr. Phillips was detained under the HTA, P.C. Emilio testified that he considered this a traffic stop. This issue should be clarified.
[24] This was clearly not a traffic stop under the HTA. Mr. Phillips was parked on private property, in the visitors’ lot of a friend’s townhouse complex. No police officer witnessed him driving. The engine was off. Section 216 of the HTA applies to “drivers,” which by definition is someone who drives a vehicle on a highway. A “highway” does not include private property: R. v. McColman, 2021 ONCA 382, at 33-35.
B. Reason for Detention
[25] Section 10(a) of the Charter states that upon detention, everyone has the right to be promptly informed of the reasons for that detention. They should be so advised in clear and simple language: Mann, at para. 21.
[26] When a person is detained, they are at the mercy of the police. Thus, in circumstances when the informational component of s.10(a) of the Charter is easy to fulfill, the breach of the obligation to provide that information cannot be considered a trivial matter. This is because the right against self-incrimination is fundamental to the spirit of s.10 of the Charter. It is also necessary for a person to understand why they are detained so that they can understand the extent of their jeopardy when they exercise their right to counsel: R. v. Nguyen, 2008 ONCA 49, at para. 19-21.
[27] I find that in the circumstances of this case, Mr. Phillips’ right to be advised of the reason for his detention under s.10(a) of the Charter was violated.
[28] The Crown maintains that Mr. Phillips was aware of why he was being detained from the moment P.C. Emilio approached him. It was the evidence of P.C. Emilio that when he approached the vehicle, he told Mr. Phillips that he was investigating possible trespass, liquor and drug offenses. When he saw the marijuana, he advised Mr. Phillips that it was illegal to have it readily available in the vehicle, even if he was not driving, and that he was investigating a cannabis infraction.
[29] Mr. Phillips’ evidence is that when P.C. Emilio approached him, no cannabis was visible. P.C. Emilio asked Mr. Phillips why he was there. When pressed further, Mr. Phillips indicated that it was his intention to meet up with a friend and smoke marijuana. P.C. Emilio told Mr. Phillips that he could teach him about the new cannabis legislation, so Mr. Phillips voluntarily pulled some cannabis from his pocket that was in a cigar pack and showed it to P.C. Emilio. Mr. Phillips maintains that P.C. Emilio asked him to put it on the dashboard. He states there was no cannabis on the centre console. Mr. Phillips also testified that he was specifically told by P.C. Emilio that he was not being investigated, but that the officer wanted to teach him about the proper ways to legally store marijuana and transport it. Mr. Phillips indicated that after his passport was returned, P.C. Emilio stayed beside his door and continued talking to him. He was never told why.
[30] P.C. Emilio’s evidence of what he told Mr. Phillips when he first approached the car is not credible. Despite first testifying that Mr. Phillips was advised he was being investigated for a cannabis infraction, in cross-examination, P.C. Emilio admitted that he told Mr. Phillips that he was not being investigated, but only educated on the new cannabis law. P.C. Emilio was also confronted with his evidence at the preliminary inquiry where he testified that he did not tell Mr. Phillips he was being detained with respect to the cannabis. P.C. Emilio responded that his recollection has changed during the time between the preliminary inquiry in November 2019 and this hearing. I find it is unlikely that P.C. Emilio’s memory would be better at this hearing, more than two years after these events, as compared to his evidence at the preliminary hearing, which was only seven months after the arrest. Further, P.C. Emilio testified that while P.C. Amaro was investigating the committal warrant, he essentially “shut down” the investigation under the CCA, and he engaged in discussion with Mr. Phillips on other topics. Accordingly, P.C. Emilio’s own evidence is that nothing further was mentioned about cannabis from this point forward. Finally, Mr. Phillips’ account is more consistent with the amount of time that passed between the time P.C. Emilio approached Mr. Phillips’ vehicle and the time his passport was run through the CPIC system. This period, close to five minutes, is more consistent with a conversation between P.C. Emilio and Mr. Phillips about why Mr. Phillips was parked where he was, whether he had any cannabis, and then a bit of education about the proper transportation of open cannabis when it was shown to him.
[31] It is also clear that the police did not advise Mr. Phillips that he was being detained with respect to their investigation of the committal warrant. Shortly after the police approached Mr. Phillips, and he provided his passport to the police, the police learned that there was a warrant for Mr. Phillips’ committal that was outstanding, from Barrie. As indicated, it was somewhat confusing, as it had a proximity component. While they sorted it out, they made a decision to not tell Mr. Phillips about the outstanding warrant until they were sure what it was. By this time, they had done a CPIC search on Mr. Phillips and learned that he had a weapons prohibition and they were also worried about the backpack they saw him place in the back seat. P.C. Emilio testified that Mr. Phillips was being cooperative, and he didn’t want to jeopardize that and escalate the situation by advising him of the possible warrant.
[32] For the next 23 minutes, Mr. Phillips testified that P.C. Emilio told him about how to transport marijuana and how much he could grow. He said P.C. Emilio asked him about a gang shooting in the complex, and whether he was involved in gangs. P.C. Emilio asked him whose car he was in, if the woman he was visiting was his girlfriend and whether he was lying to his wife about it. P.C. Emilio also asked about Mr. Phillips’ wife and child, about Mr. Phillips’ diabetes and P.C. Emilio asked him if he used needles for anything else. Mr. Phillips asked to call his wife on his cellphone, but he was not allowed to. Mr. Phillips does recall that P.C. Emilio asked about trespassing, but he said he was visiting a friend and the friend he was visiting appeared soon thereafter and verified that. According to Mr. Phillips, the questions were not friendly chatter. He grew up in the Jane and Finch area in Toronto and had been questioned by police anywhere between 30 and 50 times growing up.
[33] The police officers acknowledge the amount of time that passed while they investigated the committal warrant, but P.C. Emilio characterized the conversation as friendly. P.C. Emilio took no notes of his conversations with Mr. Phillips until after Mr. Phillips was arrested and brought back to the division, and then only of the general nature of the conversation.
[34] Around 2:30 p.m. that day, the officers learned that they could arrest Mr. Phillips on the committal warrant. They arrested him at approximately 2:32 p.m. and advised him for the first time of the outstanding committal warrant. He was also cautioned at this time and advised of his right to counsel.
[35] I find there was no reasonable reason for the police to wait to advise Mr. Phillips of why he was being detained. If there were safety concerns, back up could have been called. P.C. Emilio characterized Mr. Phillips as compliant and characterized their conversation as friendly. Mr. Phillips indicated he put his hands on the steering wheel right away. Had they advised Mr. Phillips that they were looking into a warrant, he could have called counsel and made some inquiries as to his rights. This was denied to him until which time he was arrested.
[36] Accordingly, I find that Mr. Phillips was not advised of the reason for his detention for approximately 25 minutes and was deliberately misled in order to sustain his compliant behaviour. This is a violation of Mr. Phillips’ rights under s.10(a) of the Charter.
C. Right to Counsel
[37] The Charter states that, upon detention, everyone has the right to retain and instruct counsel without delay and to be informed of that right: s.10(b). This right is triggered at the outset of an investigative detention. The wording of “without delay,” as found in s.10(b) of the Charter, should be interpreted as meaning “immediately”: R. v. Suberu, 2009 SCC 33, at paras. 2 and 41.
[38] 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: Suberu, at para. 42.
[39] It is agreed by all parties that Mr. Phillips was not advised of his right to retain and instruct counsel until he was arrested at approximately 2:32 p.m., which was approximately 27 minutes after his original detention. It is the Crown’s position that Mr. Phillips rights under s.10(b) were suspended until the time he was arrested for the variety of reasons. For the foregoing reasons, I reject the Crown’s position and find that Mr. Phillip’s 10(b) rights were violated.
a. Cannabis Control Act
[40] First, the Crown argues that this scenario was similar to a traffic stop made for traffic safety purposes. Relying on R. v. Harris, 2007 ONCA 574, at para. 47, the Crown argues that the exercise of the rights guaranteed by s.10(b) are incompatible with the brief roadside detention contemplated by a stop made for road safety purposes.
[41] In support of its argument, the Crown also relies on R. v. Grant, 2021 ONCJ 90. In that case, the court found that the accused’s 10(b) rights were suspended when their car was pulled over on a traffic stop. In that case, the sobriety check was negative, but the car smelled like marijuana, the occupants were heading to the QEW, and the police observed the accused with cannabis in his front pocket and on the centre console. The police utilized their rights to search the vehicle under s.12(3) of the CCA. In finding the police officer’s actions permissible, the court stated,
127 There is no case directly on point that I am aware of, but it would seem to me in applying the same principles that a suspension here is also justified. The exercise of the rights guaranteed by s10(b) would be incompatible with a brief roadside detention required to conduct a search of the occupants and vehicle for road safety purposes--assuming it is a brief detention. [Emphasis in original text.]
[42] This case is distinguishable in two ways. First of all, Mr. Phillips was not stopped under the HTA, despite PC Emilio’s evidence that this was a traffic stop. As indicated above, it is clear that while on private property, the HTA does not govern. There were no immediate road safety purposes for the detention. Secondly, Mr. Phillip’s detention was not brief.
[43] The HTA authorizes a police officer to detain vehicles for highway regulation and safety purposes, even if random. It is limited to the roadside. It must be brief, unless other grounds are established that permit a further detention. Where there are no road safety concerns as a basis for the detention, then the powers associated with and predicated upon those concerns cannot be summoned to legitimize the step and some other legal authority must be found as a sponsor: R. v. Gonzales, 2017 ONCA 543, at paras. 55-60.
[44] In this case, Mr. Phillips was not driving. The motor was not running. He was parked on private property. Neither officer saw him operate a motor vehicle. There was no indication, when the officers did eventually speak to Mr. Phillips, that he showed any signs of impairment. Mr. Phillips had his hands on the steering wheel the entire time, voluntarily. P.C. Emilio felt comfortable enough talking to Mr. Phillips and his friend for almost a half hour with his partner in the cruiser.
[45] In R. v. Graham, 2018 ONSC 6718, the accused’s rights under s.10(b) were suspended because of legitimate officer safety concerns at the time they were investigating Liquor License Act, R.S.O. 1990, c. L.19 (“LLA”) violations. In Graham, the accused was driving on a public road at night and was pulled over on a traffic stop due to erratic driving. The police officer smelled a strong order of alcohol from the car and saw two open bottles of vodka on the floor behind the driver. In this case, the court found that the police had legitimate concerns for officer safety when they waited 13 minutes to advise the accused of his right to counsel. The officers wanted to do a search of the car under the LLA, but that would have left the three car occupants alone on the roadside. They needed back up for that and there was a bit of delay in other officers arriving. There had also been a recent shooting in the area and a lot of criminal activity. Finally, one of the occupants had no identification and the accused was texting someone and was anxious to leave.
[46] That case is also distinguishable from the case before me. Again, there was no HTA stop and no roadside investigation. It was not a case of the police observing Mr. Phillips driving and then him pulling over onto private property. His hands were on the steering wheel. He showed no signs of impairment. P.C. Emilio and P.C. Amaro did not feel the need to call for immediate back up even when they saw there was a possible outstanding warrant and a weapon’s prohibition.
[47] It is acknowledged that police work can be dangerous. They were working in an area that was known for crime. P.C. Emilio alluded to a recent shooting. Nonetheless, this occurred in the middle of the day. No evidence was adduced about any particular danger that the police were facing at that time. P.C. Emilio’s evidence was that they did not advise Mr. Phillips of his rights because he was being compliant and they did not want that to change. The other safety concerns, that Mr. Phillips had a weapons prohibition and that they saw Mr. Phillips put a backpack in the back seat of his car, appeared secondary.
[48] The Crown argues that similarly, Mr. Phillips’ s.10(b) rights were suspended under the Trespass to Property Act, during the initial investigation. It argues that it would be absurd to implement a person’s right to counsel if they were found to be trespassing. The occupier would rather just have the person removed, rather than keep him on the property while the police afforded him or her the contacted counsel.
[49] I agree that it would not be reasonable to insist that the police be compelled to advise a trespasser of their right to counsel instead of promptly ejecting them from the property. In this case though, the initial investigation under the TPA was only a minute or two long and has minimal impact on this analysis.
c. Uncertainty of Committal Warrant
[50] Finally, the Crown further argues that it would not be reasonable for the police to advise Mr. Phillips of his right to counsel with respect to the committal warrant before they even knew whether they could arrest Mr. Phillips on the warrant. As indicated in R. v. Gerson-Foster, 2019 ONCA 405, at paras. 80-96, an arrest could be unlawful if the police didn’t confirm the validity of an outstanding warrant first. In the meantime, his s.10(b) rights were properly suspended under the CCA.
[51] I disagree. The right of Mr. Phillips to be advised of his right to retain and instruct counsel arises on his detention, not just his arrest. Also, I do not accept that his rights under s.10(b) were suspended in these circumstances. Even if I were to accept that his rights under s.10(b) were suspended during the CCA investigation, which I do not, an additional investigation started when they found the potential warrant. Nonetheless, he kept Mr. Phillips in conversation for close to a half hour, and in the dark, so that they could investigate the committal warrant.
[52] Accordingly, for the foregoing reasons, I find that the police violated Mr. Phillips s.10(b) rights and failed to advise him of his rights for 28 minutes following his detention.
D. Was there an illegal Search?
[53] Mr. Phillips argues that his rights under s.8 of the Charter were violated in two ways. First, the police subjected Mr. Phillips to an improper informational search by compelling him to answer questions of a personal nature, demanding that he provide identification and that he produce the marijuana in his position. Secondly, the police conducted an illegal physical search of his vehicle.
[54] Section 8 of the Charter states that everyone has the right to be secure against an unreasonable search or seizure. To be reasonable, a search must be authorized by law, the authorizing law must be reasonable, and the search must be carried out in a reasonable manner: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 10; R. v. Bielli, 2021 ONCA 222, at para. 63.
[55] There are a number of ways that a search can be lawful. It can be conducted pursuant to a warrant, or incident to arrest: Bielli, at para. 63. The CCA also allows for a lawful search under s.12(3) without the necessity of a warrant. The police can also search incident to an investigative detention. This type of search is limited to issues of safety. This type of search does not authorize the search of a person’s vehicle: R. v. Mann, 2004 SCC 52 at para. 40, Bielli, at para. 64.
[56] In the case before me, the Crown relies on s.12(3) of the CCA. The Crown did not advance that the search was made incident to arrest. The applicable subsections of section 12 state:
12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.
(2) Subsection (1) does not apply with respect to cannabis that,
(a) is in its original packaging and has not been opened; or
(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle or boat. 2018, c. 12, Sched. 1, s. 12 (1).
(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.
[57] In R. v. F., 2015 ONSC 3068, the applicant was seeking to exclude the proceeds of a search, which, it was argued, was conducted in violation of s.32 of the Liquor Licence Act. Similar to s.12 of the CCA, s.32 of the LLA allowed the search if there were reasonable grounds to believe there was liquor being unlawfully kept in a vehicle or boat. The reasonable grounds had to be viewed as objectively reasonable. The decision to execute the search need not be contemporaneous with the commission of the offence: at para. 62.
[58] More importantly, McKinnon J. found that once there are reasonable grounds to suspect that liquor was being unlawfully kept, the right to search extended to the right to search for liquor generally, and not just liquor that was unlawfully kept. In that regard, he relied on the decision of R. v. Annett (1985), 1985 CanLII 3654 (SCC), 17 C.C.C. (3d) 332, (Ont. C.A.), which stated that once there were reasonable grounds to believe that liquor was being unlawfully kept, they had authority to search the vehicle: at pg. 2.
[59] There is a certain attraction to considering the case law from the LLA. Both statutes are designed to regulate the safe transport of an otherwise legal substance. Accordingly, in order to determine whether the search of the vehicle was lawful, I will determine, viewed objectively, whether the police had reasonable grounds to suspect a violation of the CCA. If so, I must then determine if it was exercised in a reasonable manner.
[60] I do not accept P.C. Emilio’s evidence that there was an open tin of cannabis on the center console of Mr. Phillips’ vehicle as well as cannabis in a cigar wrapper on Mr. Phillips’ lap. The existence of this tin was raised for the first time during this hearing. P.C. Emilio was confronted with his evidence at the preliminary hearing where he stated that upon approaching the vehicle, he saw marijuana “in the centre console, folded up in a cigar wrapper.” There is no mention of an open tin. The preliminary inquiry took place in November 2019, only seven months after the alleged events. Also, in cross-examination, P.C. Emilio admitted that the forensics officer that assisted that day only recorded receiving six sealed tins of marijuana, which were found in the backpack containing the firearm. There is no record of an opened tin being retrieved. P.C. Amaro gave evidence of only seeing loose cannabis on the dashboard, on cigar paper, and not about seeing an open tin on the centre console. Accordingly, I find that P.C. Emilio discovered loose cannabis in the vehicle, contrary to the CCA, only when Mr. Phillips showed it to him. This is, nonetheless, a violation of s.12 of the CCA. The police had the authority to search Mr. Phillips’ vehicle.
[61] In these circumstances, it was reasonable for the police to search a backpack that was within arm’s reach of Mr. Phillips and which was only secured by a zipper. The modern approach to statutory interpretation requires me to read the legislation in its entire context in its ordinary sense within the scheme and intention of the act I am interpreting: Application under s.83.28 of the Criminal Code (Re), 2004 SCC 42, at para. 34. Utilizing these principles, the words “fastened closed” should be read in conjunction with “…or is not otherwise readily available…”. In J.F., McKinnon J. found that a partially unzipped backpack would not qualify as being “fastened closed” for the purposes of the LLA and that liquor found in this manner would be readily available to anyone in the car.
[62] Likewise, even a fully zipped up backpack is not sufficiently “fastened” so as to be inaccessible to any occupant of a vehicle. Accordingly, when interpreting whether cannabis that is not in its original packaging is fastened closed, it should be interpreted as fastened closed in a manner that does not make it readily accessible. A zipped-up backpack, within reach of an occupant of a motor vehicle, is readily available and therefore not fastened closed within the meaning of the CCA.
[63] I also find that although the search was not conducted until after Mr. Phillips was asked to exit the vehicle, it was still reasonable. As indicated in J.F., the search does not have to be contemporaneous with the offence. It would not be logical to require the police to search a vehicle for unlawful liquor or cannabis while the driver or occupant was still in the car. That would result in an absurdity wherein an occupant of a vehicle need only step out the vehicle and walk a few feet away to make the search of a vehicle unlawful.
[64] Accordingly, I find the search of Mr. Phillips’ backpack in his vehicle was a reasonable exercise of the police’s right to search Mr. Phillips’ vehicle pursuant to s.12 of the CCA.
E. Section 24(2) analysis
[65] I have found a brief breach of Mr. Phillips’ rights under s.9 and a further breach of Mr. Phillips’ rights under s.10(a) and 10(b) of the Charter. I have found that the search of the vehicle was not contrary to s.8 of the Charter. I must now determine whether these findings should result in the exclusion of the evidence, pursuant to s.24(2) of the Charter.
[66] Section 24(2) of the Charter is triggered where evidence is obtained in a manner that violates an accused’s Charter rights. An inquiry under s. 24(2) examines the impact of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term, based on (i) the seriousness of the Charter-infringing state conduct, (ii) the impact of the breach on the accused’s Charter-protected interests and (iii) society’s interest in the adjudication of the case on the merits. The court’s role on a s. 24(2) application is to balance the assessments under these three inquiries and determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute: Grant, at para. 71.
[67] While the first two inquiries typically pull towards the exclusion of evidence, they need not pull with identical degrees of force in order to compel exclusion. Evidence can be excluded even if only one of the first two questions supports exclusion. The third line of inquiry, while not a rubber stamp deeming all evidence reliable, typically pulls towards admission.
[68] When the first two inquiries taken together make a strong case for exclusion, “…the third inquiry will seldom if ever tip the balance in favour of admissibility”: Le, at paras. 141-142. That being said, there is no overarching rule that governs how the balance between these three factors is to be struck, and I must consider all the circumstances of the case before me: R. v. Grant, at para. 86; dissent of Brown J. in R. v. Omar, 2018 ONCA 975, at para. 114-5, as adopted by the Supreme Court of Canada at 2019 SCC 32.
[69] A temporal connection between the breach of a Charter right and the discovery of evidence is enough to engage a s. 24(2) analysis even if there is no causal connection between the breach and the evidence obtained: R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 83; R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 79.
[70] Any analysis under s. 24(2) should be conducted so that it takes into account the cumulative effect of the various Charter breaches: R. v. Culotta, 2018 ONCA 665, 142 O.R. (3d) 241, at para. 62.
i. Seriousness of Breach
[71] When determining the seriousness of the breach, the court should determine whether the police engaged in misconduct from which the court should disassociate itself. The most serious conduct from which the court should disassociate itself is wilful or reckless disregard of Charter rights which will have a negative effect on the public confidence in the rule of law and bring the administration of justice into disrepute. On the other end of the spectrum is inadvertent or minor violations of the Charter, or an understandable mistake, which would not undermine public confidence in the rule of law: Grant, at paras. 72-74; Thompson, at para. 83.
[72] In the case before me, the improper detention was only momentary, and therefore I do not find that this breach was serious.
[73] The breaches under s.10(a) and 10(b), on the other hand, were serious. Mr. Phillips was detained for close to a half an hour, was not told why and was not advised of his right to counsel during this time. In addition, it was deliberate. P.C. Emilio testified that it was a conscious decision not to alert Mr. Phillips to the possibility of his arrest under the committal warrant, so as to maintain his compliant behaviour. Issues of officer safety were secondary and almost an afterthought. These violations were reckless and showed a blatant disregard for Charter rights: R. v. Harrison, 2009 SCC 34 at para. 27.
ii. Impact of the Breach
[74] This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. The court must evaluate the extent to which the breach actually undermined the interests protected by the right infringed. The impact of the breach may range from fleeting and technical to profoundly intrusive. The more serious the impact of the accused’s protected interests, the greater the risk that the admission of the evidence may signal to the public that Charter rights are of little avail to the citizen, bringing the administration of justice into disrepute: Grant, at para. 76.
[75] The purpose of s.10(a) of the Charter is so that a person can understand generally the jeopardy in which they find themselves. This is important for two reasons: first, because it is a gross interference with individual liberty to not knowing the reason for one’s detention, and secondly, it would be difficult to exercise one’s right to consult counsel if one was not aware of their jeopardy: R v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, at para. 28.
[76] The purpose behind one’s rights as embodied in s.10 of the Charter were recently reviewed in Bielli, at para. 86, In this decision, Peppall J.A. relied on R. v. Evans, wherein it stated:
The right to be promptly advised of the reason for one’s detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to arrest if one does not know the reasons for it. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. As Wilson J. stated for the Court in R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-153, “[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy”. In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right. [Citation omitted.]
[77] Mr. Phillips’ right to know his jeopardy and to exercise his right to counsel were seriously impacted. Not only did they deliberately mislead Mr. Phillips about the existence of the committal warrant, they misled him on the purposes of questioning about the cannabis in his possession. I find it would bring the administration of justice into disrepute if the police were permitted to detain individuals for close to one-half hour and to not advise them, or to mislead them, as to why and not availing them of the opportunity to speak to counsel about it. This breach was not fleeting or technical. It was a deliberate decision made by the police.
[78] Mr. Phillips has asked that I also find that Mr. Phillips’ race was at least one factor in his detention and the suspension of his rights. Mr. Phillips testified that there were other white men in parked cars nearby, and the police did not detain or question them. In addition, Mr. Phillips was identified by his race and headwear in the police’s notes.
[79] Viewing the evidence in its totality, I cannot find on a definitive basis Mr. Phillips’ race had any factor in his detention. To identify a subject by his or her race, in addition to their gender and clothing, is not in and of itself an indication of racial bias.
iii. Societal Interests
[80] Society expects that a criminal allegation will be adjudicated on its merits. In considering this final factor, the court is asked to determine whether the admission of the evidence, even if obtained due to a breach of the Charter, would assist the court in its truth-seeking function. If the breach undermines the reliability of the evidence, then the court should be more inclined to exclude it. On the other hand, the 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: Grant, at paras. 79-81.
[81] The breach did not undermine the reliability of the evidence. The search was legal and the firearm would have been discovered had the police continued with their search under the CCA. This evidence is reliable and central to the Crown’s case on the firearm offences. Without it, the Crown’s case will undoubtedly fail. This gun was brought into a housing complex where families live and children play. The people who reside there deserve to live without this threat to their safety.
[82] That being said, the violation of Mr. Phillips’ rights was serious and deliberate. P.C. Emilio’s evidence of what he first said to Mr. Phillips when he approached the car, and what he saw when he first looked in the vehicle, was not believable. I do not accept that Mr. Phillips had open cannabis on the centre console and on his lap when P.C. Emilio first approached the car, and it was the discovery of that open cannabis that P.C. Emilio relied on for the search under the CCA. The police deliberately detained Mr. Phillips and misled him as to why the police cruiser remained behind his car, restricting his ability to leave for close to a half an hour in order to secure his compliance in the face of unknown jeopardy. While the police were honest as to the reason, they did not advise Mr. Phillips of his rights, in these circumstances, it does not excuse it.
[83] While seriousness of the offence and the reliability of the evidence is important, to condone a wilful and flagrant breach of the Charter that constitute a significant incursion on Mr. Phillips’ rights does not enhance the long-term repute of the administration of justice. On the contrary, it undermines it: Harrison at para. 39.
F. Conclusion
[84] In all the circumstances surrounding this encounter between Mr. Phillips and the police, I find that it would bring the administration of justice into disrepute if the evidence secured in this scenario was not excluded. Accordingly, the application is granted and the evidence seized during the search of Mr. Phillips’ vehicle is excluded.
Fowler Byrne J.
Released: August 04, 2021
COURT FILE NO.: CRIMJ(P) 1901/19
DATE: 2021 08 04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DWAYNE PHILLIPS
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: August 04, 2021