R. v. French, 2021 ONSC 6912

Superior Court of Justice

COURT FILE NO.: CR-19-303

DATE: 20211018

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BRODIE FRENCH

Defendant

Laura Tripp, for the Crown

Peter Downing, for the Defendant

HEARD: September 7, 2021

TRANQUILLI j.

REASONS ON CHARTER APPLICATION RE ss. 8, 9, 10(b)

Introduction

1Mr. French is charged with possession of Fentanyl and cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. The two counts arise from a traffic stop for speeding on the night of December 22, 2018. At issue is whether Mr. French’s Charter rights were breached though his detention, search of his person and delay in providing him with his rights to counsel and if so, whether the evidence found pursuant to his arrest should be excluded pursuant to s. 24(2) of the Charter.

2The court heard this Charter application on the first day of a blended judge-alone trial, with the intention that the application be determined in advance of the second day of trial. The sole witness on the application was the arresting officer, Ontario Provincial Police Constable Devon Jackson. The applicant Mr. French did not testify.

Background

3Constable Jackson was on general law enforcement duty in a marked police cruiser on the night of December 22, 2018. He was driving eastbound on Oxford Street West at approximately 11:10 pm in London, Ontario, when he saw a westbound vehicle approaching him at a high rate of speed. His radar confirmed the vehicle was travelling 28 km/hour more than the posted speed limit. He pulled the vehicle over for speeding. The vehicle stopped almost immediately in response to the cruiser lights and siren.

4The applicant Mr. French was the driver of the vehicle and a female was the front seat passenger. Mr. French identified himself to the officer with his driver licence. Mr. French told Constable Jackson he had borrowed the car from a friend. He gave the officer the vehicle registration and insurance. Constable Jackson noted the insurance had expired and that the ownership was, in fact, registered to a different person than the friend identified by Mr. French. Mr. French was unable to explain the apparent discrepancy in ownership. The officer conducted further checks of the applicant and the vehicle from his cruiser. These inquiries revealed the plate was unattached and not authorized for use and the vehicle was deemed unfit to drive.

5At approximately 11:18 pm., Constable Jackson told the applicant he was arresting him for using unauthorized plates, contrary to s. 12(1)(d) of the Highway Traffic Act. The officer handcuffed Mr. French at the rear of the vehicle. Before conducting a pat-down search as an incident to arrest, the officer asked Mr. French if he had anything sharp or weapons on his person. Mr. French denied having these items, but stated he had cocaine in his front inner jacket pocket.

6Consistent with the applicant’s utterance, the officer found two clear plastic bags with white powder along with a third clear plastic bag containing a purple substance and a digital scale. At approximately 11:20 pm., Constable Jackson rearrested the applicant for possession of cocaine and Fentanyl for the purpose of trafficking. He completed the search of Mr. French, which yielded a bundle of cash and an iPhone. The constable did not count the money, but the applicant told him the amount of money was approximately $5,000.

7Constable Jackson placed the applicant in the rear of his cruiser and returned to the vehicle to speak with the female passenger. The officer then returned to his cruiser, cautioned the applicant and read him his rights to counsel between 11:25 pm. and 11:28 pm. The applicant told Constable Jackson he wanted to speak with his lawyer. The officer returned to the vehicle to speak with the female passenger. Police back up then arrived and the passenger was placed in another police cruiser. Constable Jackson left with the applicant for the OPP detachment at approximately 12:02 am and arrived at the detachment at approximately 12:18 am. The applicant spoke with counsel at approximately 12:46 am.

8Analysis of the seized substances revealed a total of 33 grams of cocaine and 10.9 grams of Fentanyl with an estimated value of about $5,000. The quantity of money taken from the applicant’s front pocket totalled $5,014.50. An iPhone was also seized.

Positions of the Parties

9Mr. French submits the radar data and initial vehicle investigation information gave all the information the police officer needed to charge the applicant with the Highway Traffic Act offences. The arrest was not reasonably necessary in the circumstances of these minor offences, where there were no grounds to believe another offence had been or would be committed. Constable Jackson could simply have issued a ticket and seized the vehicle. The warrantless arrest breached the applicant’s right against arbitrary detention under s. 9 of the Charter. The warrantless search of the applicant incident to this arrest was similarly unjustified, breaching the applicant’s right against unreasonable search and seizure under s. 8 of the Charter. The delay between the applicant’s arrest and being advised of his right to counsel was also unreasonable. Section 10(b) of the Charter requires that on arrest a person is entitled to be “immediately” informed of his right to counsel. There is no compelling reason to justify the delay. These are serious multiple Charter breaches involving the applicant’s privacy interests. Therefore, the evidence should be excluded as its admission would bring the administration of justice into disrepute.

10The Crown submits there was no violation of the applicant’s section 8, 9 or 10(b) Charter rights. The Highway Traffic Act gave the officer discretion to arrest the applicant for use of unauthorized plates. He reasonably exercised his discretion in the circumstances. The officer was alone at the scene at night and questions remained about the vehicle and whether it was stolen. The officer’s search of the applicant incident to the arrest was conducted for a valid purpose, being officer safety. Any delay in informing the applicant of his right to counsel was minor in the context of a fluid investigation. The applicant’s utterance that he was carrying cocaine changed the nature of the traffic stop and led to his rearrest on the trafficking. There was at most a seven-minute delay between arrest and being informed of his rights, which was not unreasonable. If there was a breach, the infringements were based upon the officer’s good faith belief he had reasonable and probable grounds to arrest the applicant. The search was not intrusive, and its completion was necessary given the applicant’s disclosure he possessed cocaine. The items found on the search are real evidence and connected to activities that cause serious harm to society. Admission of this evidence would not bring the administration of justice into disrepute.

Issues

11This application requires determination of the following issues:

1. Was the arrest reasonably necessary in the circumstances of the case?

2. Was the search of the applicant incident to arrest reasonable?

3. Was the applicant informed of his right to retain and instruct counsel without delay?

4. If there was a breach, would admission of the evidence bring the administration of justice into disrepute such that it should be excluded pursuant to s. 24(2) of the Charter?

12The Crown had brought a voluntariness application to address the admissibility of the applicant’s statement as to cocaine being in his pocket. However, the court was advised during this application that the voluntariness of this statement was conceded.

Analysis

1. Was the arrest reasonably necessary in the circumstances of the case?

13There is no dispute the officer had grounds to perform the initial traffic stop for speeding. The issue is whether he had reasonable and probable grounds for the warrantless arrest of the applicant for the licence plate infraction.

14The Highway Traffic Act empowers a police officer to arrest a person where the officer believes on reasonable and probable grounds the person has used a number plate other than a number plate authorized for use on the vehicle: ss. 12(1)(d), 217(2).

15The question is therefore whether the detention was reasonably necessary in the circumstances of this case: R. v. Aucoin, 2012 SCC 66, [2012] 3 SCR 408 at para. 35. The applicant submits the officer acted arbitrarily in the exercise of this discretion, thereby breaching the applicant’s s. 9 Charter rights. There were less intrusive measures on the applicant’s liberty short of arrest, such as issuing a summons and seizing the vehicle.

16The applicant put great emphasis on the recent decision of R. v. Brown, 2019 ONCJ 56 as an ostensibly similar situation involving a traffic stop that led to what the judge found to be an unreasonable detention and search and unjustifiable breaches of the accused’s Charter rights.

17In asking whether detention was reasonably necessary, one considers the totality of the circumstances. This includes factors such as the nature of the situation, the seriousness of the offence, information known to the police about the suspect or the crime and the extent to which detention was reasonably responsive or tailored to these circumstances, including geographical and temporal considerations. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk: Aucoin, supra at para. 36.

18Constable Jackson testified there were several concerns that led to his decision to place the applicant under arrest for the unauthorized plate infraction. The unattached plates, the unfit vehicle and discrepancy as to ownership raised a question as to whether the vehicle was stolen. His background check of the applicant gave the officer safety concerns. Constable Jackson was alone on the stop at night and needed to complete more roadside queries about the vehicle which would take his attention away from the applicant and passenger. He concluded it was in his best interests to arrest the applicant to address officer safety and to further investigate whether the car was stolen.

19The applicant challenged the officer’s credibility on this version of events and asserted the least intrusive measure to address the risks was to write a ticket and seize the vehicle. In cross-examination, the officer confirmed the applicant was cooperative in the traffic stop. He agreed he had no reason to believe the applicant was a flight risk. Constable Jackson agreed his initial inquiries gave him all the necessary information to lay the Highway Traffic Act charges. He also agreed his initial roadside investigation did not identify the vehicle as reported stolen. However, Constable Jackson testified he was of the view he could not just release the applicant on a summons because of the unresolved questions about the vehicle ownership. Release on a summons was not a possibility in his mind pending further investigation as to whether the vehicle was stolen.

20The applicant contends this explanation conflicts with the officer’s testimony at the preliminary inquiry. At that time, Constable Jackson agreed with the proposition that his initial inquiries gave him all the information needed to lay charges for speeding and unauthorized plates. The applicant submits his evidence that more investigation needed to be done is a fabrication to justify the arrest. The Crown responds that the officer’s evidence does not conflict with his preliminary inquiry testimony. He agreed with the contention there were grounds to charge the applicant. His explanation at trial that there was more investigation that needed to be done is not inconsistent with his previous answer.

21I found that Constable Jackson was responsive, fair, and direct in his testimony. There was no suggestion of exaggeration. He acknowledged the applicant was cooperative. The officer was not shown to be inconsistent or unreliable in his testimony. I accept the Crown’s submission that the alleged inconsistency is inconsequential. In fact, it is not an inconsistency. The officer readily acknowledged at both the preliminary inquiry and trial that he could have issued a summons and seized the vehicle. However, he explained his reasons for opting to detain the applicant for further investigation of the car ownership.

22This case is distinguishable from Brown, supra. In Brown, the court found the evidence demonstrated the arrest arose in the context of a generalized criminal inquiry and not a traffic stop as claimed by the officer (for example, that officer never asked the accused to produce his driver licence). The court found the arresting officer embellished his concerns about the applicant’s conduct and disbelieved the officer’s conflicting explanations for the arrest and that it was for the officer’s safety. The arrest occurred in daylight in the downtown core of the city and short distance away from the central police division and other patrolling officers.

23In contrast, this arrest arose in the context of a legitimate traffic stop where the inquiries raised outstanding questions about the ownership of the vehicle over and above the speeding and unauthorized plates. The officer had discretion under the Highway Traffic Act to arrest the applicant on reasonable and probable grounds. A background check of the applicant added to his safety concerns. In the totality of circumstances, I find the detention was reasonably necessary. Although the vehicle was not reported stolen, I accept the officer’s explanation that the circumstances of the discrepancies as to ownership, the unfit vehicle and unauthorized plates warranted further investigation and the detention was made for safety. He was alone late at night with the applicant, passenger and a vehicle and would be distracted while he made further inquiries about the vehicle and called for assistance.

24On the totality of the circumstances, I find the officer had reasonable and probable grounds to exercise his discretion to arrest the applicant pursuant to s.217(2) of the Highway Traffic Act. I therefore conclude the detention was not in breach of the applicant’s s.9 Charter right not to be arbitrarily detained.

2. Was the search of the applicant incident to arrest reasonable?

25The applicant submits the pat-down of his person incident to arrest was a breach of his s. 8 Charter right to be secure against unreasonable search and seizure. The applicant relies on a similar argument to his position on his arrest; that the search was unreasonable as there were less intrusive options available to the officer to address the Highway Traffic Act charges. But for the unreasonable decision to arrest, there would have been no pat-down search.

26The Crown acknowledges it bears the onus of establishing the warrantless search was reasonable. It submits the search was reasonable as an incident to the lawful arrest. It is evident the officer conducted the pat-down search for safety reasons as he asked the applicant about the presence of sharp items or weapons.

27In order to establish a warrantless search was reasonable, the Crown must establish on a balance of probabilities the search was: (1) authorized by law; (2) the law itself was reasonable; and (3) the search was carried out in a reasonable manner: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. However, a search incident to arrest does not require reasonable and probable grounds beyond the grounds that were sufficient to support the lawfulness of the arrest. The search power is discretionary but must be conducted for a valid purpose, such as to protect the police or arrestee, preserve evidence related to the offence of find evidence related to the offence: R. v. Fearon, 2014 SCC 77, [2014] 3 SCR 621.

28As I have determined the arrest was reasonable, it follows the pat-down search as incident to arrest was reasonable. I am satisfied the officer conducted the pat-down search for a valid purpose, being officer safety. This was not seriously challenged by the applicant. The pat-down was limited to areas within the immediate reach of the applicant, including the pocket where the applicant stated there was cocaine. The officer testified he detected a hard object within the applicant’s front jacket pocket where he located the scale and controlled substances.

29I accordingly conclude the search incident to arrest did not breach the applicant’s s.8 Charter right to be secure against unreasonable search and seizure.

3. Was the applicant informed of his right to retain and instruct counsel without delay?

30The officer arrested the applicant on the Highway Traffic Act charges at 11:18 pm. Constable Jackson conducted the search, rearrested the applicant, placed him in the cruiser and returned to the vehicle to speak with the passenger. Constable Jackson did not caution and inform the applicant of his rights to counsel until his return to the cruiser at 11:25 pm.

31The applicant contends the officer therefore failed to inform the applicant of his right to counsel on arrest and without delay, as required by s. 10(b) of the Charter.

32The Crown contends the delay of no more than 7 minutes is minor and reasonable in the context of a fluid and changing investigation. The officer initially made the arrest for a Highway Traffic Act charge; upon the applicant’s utterance and pat-down, it immediately expanded into an investigation and arrest for drug trafficking offences.

33The phrase “without delay” in s. 10(b) means immediately. The immediacy of this obligation is subject only to concerns for officer or public safety or reasonable limitations prescribed by law and justified under s. 1 of the Charter: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460.

34There is no controversy that the applicant was detained as of 11:18 pm, therefore triggering the obligation on the officer to “immediately” inform the applicant of his right to counsel. However, as with the s. 9 and s. 8 inquiries, I am satisfied there were officer safety issues that explain the time that passed between the initial arrest and the applicant being informed of his right to counsel. On a contextual analysis, I question whether it is even accurate to call the seven-minutes following arrest a “delay”. During this time, the constable was alone. The investigation focus expanded with the pat-down, leading to a rearrest on trafficking charges. The officer determined he needed to place the applicant in the cruiser while he returned to briefly deal with the passenger. He cautioned the applicant and read him his rights to counsel upon his return to the cruiser.

35I am satisfied that on a balance of probabilities there was no breach of the applicant’s s. 10(b) Charter right to be informed of his right to counsel without delay.

4. If there was a breach, would admission of the evidence bring the administration of justice into disrepute such that it should be excluded pursuant to s. 24(2) of the Charter?

36If I am mistaken in these findings and if the arrest, search and/or passage of time in informing the applicant of his rights to counsel were in breach of his Charter rights, the issue is then whether the evidence ought to be excluded. This involves a consideration and balancing of the three factors set out in R. v. Grant, 2009 SCC 32.

1. The Seriousness of the Charter-Infringing State Conduct;

37The 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 in order to preserve public confidence in and ensure state adherence to the law: Grant, supra at para. 72.

38The applicant contends the nature of the officer’s decision to arrest and then search him was arbitrary because there were no reasonable grounds to take any steps beyond issuing a ticket and seizing the vehicle. The applicant was cooperative and there was no indication of any other offence being committed at the time. The arbitrary and unreasonable nature of the arrest was compounded by the constable’s delay in informing the applicant of his right to counsel. These multiple breaches elevate the severity of the Charter infringement. The public has a great interest in knowing the court does not condone such behaviour.

39I find the evidence does not demonstrate there was egregious police conduct warranting exclusion of the evidence. Constable Jackson had been a police officer for approximately 18 months at the time of the arrest. There was a legitimate basis for the initial traffic stop and there was statutory authorization to make an arrest on reasonable and probable grounds. He was alone at night on the traffic stop and had to exercise his judgement. I am satisfied he exercised his discretion to make the arrest in good faith, based upon his questions as to whether the vehicle was stolen and for his personal safety.

40His manner of conducting the search of the applicant shows an awareness of and respect for the applicant’s Charter rights. The search was minimally intrusive as a pat-down search incident to arrest. During the initial pat-down he saw a bundle of cash in the applicant’s front pocket which he left there until searching the applicant again incident to his rearrest on trafficking.

41Finally, there is no evidence from which one can infer the officer deliberately or wilfully disregarded his obligation to inform the applicant of his right to counsel without delay. To the extent there was a delay, it was minimal, technical and inadvertent. It is explained by the change in the scope of the investigation, the steps the lone officer took to rearrest the applicant, secure him in the cruiser and return to the car to speak with the passenger before returning to the cruiser to caution the applicant and inform him of his right to counsel.

42To the extent there was any Charter-infringing conduct, I find it is at the low end of the spectrum. This step of the analysis favours inclusion.

2. The Seriousness of the Breach on the Charter-Protected Interests

43This inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. One looks to the interests engaged by the infringed right and the degree to which the violation impacted on those interests: Grant, supra at paras. 76-77.

44The applicant submits the arrest and search had a dramatic impact on his privacy and right to be left alone by the state. Admission of the evidence obtained in these circumstances would send a message that the rights we should all take for granted, in fact, count for little.

45I accept the detention had an impact on the applicant’s liberty and the search of his person impacted his privacy. These factors may favour exclusion; however, I would note the search was brief and minimally intrusive. As to his right to counsel, he was so informed and was provided the opportunity to speak with his lawyer as soon as was practicable on his arrival at the police detachment.

3. Would admission of the evidence would undermine public confidence in the administration of justice?

46This third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. The long-term repute of the justice system is the focus of s. 24(2): Grant, supra, at paras. 79-84.

47The applicant acknowledges the impugned evidence is relevant and reliable and that its exclusion may undermine the truth-seeking function of the justice system. However, he contends this is a situation where the court should be alive to the long-term reputation of the administration of justice, particularly where the penal stakes are high.

48The Crown argues there is a strong societal interest in adjudicating this case on its merits. The controlled substances, particularly Fentanyl, are dangerous and cause serious harm in the community.

49The reliability of this evidence is not affected by the Charter issues. Excluding the evidence would end the prosecution. There is a strong societal interest in seeing this case determined on its merits. This factor favours inclusion of the evidence: R. v. McGuffie 2016 ONCA 365 at para. 62.

50The court must now balance these factors to decide, having regard to all the circumstances, whether admission of the evidence would bring the administration of justice into disrepute. In practical terms, this becomes important when one, but not both of the first two inquiries pushes strongly toward the exclusion of evidence: McGuffie, supra at para. 63

51The first and third factors favour inclusion, whereas the second factor gives pause given the impact on the applicant’s liberty and privacy interests.

52On balance, I find that if there were section 8, 9 and/or 10(b) Charter breaches, the evidence should nevertheless be admitted. The breaches occurred through inadvertence and the exigencies of the late-night traffic stop by a lone officer. There is no evidence of bad faith. The officer’s belief in there being reasonable grounds for arrest should be understood through his perspective as a relatively new officer on a lone traffic stop. The search was minimally intrusive and the delay as to informing the applicant of his right to counsel was brief and had no impact on his ability to speak with counsel once he arrived at the police detachment.

53I conclude that admission of the evidence obtained as a result breaches of s. 8, 9 or 10(b) of the Charter would not bring the administration of justice into disrepute.

54I therefore find the evidence is not excluded by s. 24(2) of the Charter.

55The application is dismissed.