COURT FILE NO.: CR-21-90000038-0000
DATE: 20211027
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
TAREEK FREDERICK and
JAHVON FREDERICK-DWYER
Applicants
D. Lumba and A. Bystrzycki, for the Respondent Crown
D. North, for Tareek Frederick, Applicant
E. Bristow, for Jahvon Frederick-Dwyer, Applicant
HEARD by videoconference: June 14, 15, 16, 2021; July 22, 23, 2021; and September 29, 2021
PUBLICATION BAN PURSUANT TO SS. 648(1) AND 645(5) OF THE CRIMINAL CODE, R.S.C., 1985, c. C-46.
[FOR CLARITY — COUNSEL ARE PERMITTED TO CIRCULATE THIS DECISION TO OTHER COUNSEL OR USE IN COURT. PUBLICATION AND QUOTATION OF GENERAL PRINCIPLES FROM THE CASE IS PERMITTED. PUBLICATION IS PROHIBITED OF ANY FACTS ABOUT THE PARTICULAR DEFENDANT’S CHARGES AND IDENTIFYING INFORMATION ABOUT THE DEFENDANT.]
Croll J.
ruling on pre-trial motions
Introduction
[1] On April 21, 2020, after a roadside Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) stop, the Applicant Tareek Frederick was arrested for driving under suspension. His brother, the Applicant Jahvon Frederick-Dwyer was in the car, along with a young person, K.
[2] Officers searched the car pursuant to s. 12 of the Cannabis Control Act, S.O. 2017, c. 26, Sched. 1 (“CCA”) and found a loaded handgun, 127.9 grams of powder cocaine, 25.2 grams of crack cocaine and 5.5 grams of fentanyl.
[3] The Applicants were arrested and charged with possession of a loaded firearm, contrary to ss. 92(1), 94(1) and 95(1) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”), and two counts of possession of cocaine and fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”).
[4] The Applicants submit that their rights were violated due to their arbitrary detentions, the delay in providing Mr. Frederick-Dwyer with the reason for his detention, the delay in both of the Applicants being provided rights to counsel, and the unreasonableness of the searches of their persons and of the car contrary to ss. 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”).
[5] The Applicants submit that to admit the evidence that was obtained in violation of these Charter provisions would bring the administration of justice into disrepute. They are seeking exclusion of the contraband seized pursuant to s. 24(2) of the Charter.
Factual Background
[6] Ontario Provincial Police (“OPP”) Constable Taylor Konkle conducted the initial roadside stop. OPP Officers Ryan O'Connell, Ghazwan Al-Obaidi, Joey Weatherill and Hayden Seo all responded to Officer Konkle’s call for assistance that night.
The Roadside Stop
Officer Konkle
[7] On April 21, 2020, there were signs before the Neilson Road exit off Highway 401 in Toronto indicating that the exit was closed and diverting traffic from the collector lanes into the express lanes. Officer Konkle stated that at 12:26 a.m., he saw a white car driving westbound on Highway 401 make a maneuver, proceed past the construction pylons blocking the collector lanes, and drive slowly into the construction area. The white car stopped at the Neilson Road exit ramp, as it was blocked by a blocker truck placed there to protect those doing maintenance on the exit ramp.
[8] As Officer Konkle saw the white car enter the construction area, he activated the lights on his police car and stopped right behind the white car. He also informed the OPP dispatcher that there was a car in a construction zone and that he was on a traffic stop. Before he approached the car, Officer Konkle had entered its licence information on the in-car computer. He learned that the license plate matched the white Chevy Malibu that had just stopped, that the car had not been reported stolen, and that all its stickers were current. Officer Konkle also received information that the registered owner of the Malibu was Ronald Reynolds, with an address in Peterborough, Ontario.
[9] Officer Konkle stated that he stopped the car pursuant to his authority under the HTA, for careless driving toward a construction zone. He also stated that he had authority to ascertain whether the driver was impaired, as it was unusual to see a driver in a construction zone.
[10] Officer Konkle approached the driver’s side of the car. The windows were heavily tinted, and he could not see inside. It was his evidence that he tapped on the window to have the driver roll it down, at which time he could see the driver, Mr. Frederick, and the front passenger, Mr. Frederick-Dwyer. He asked that the back window also be rolled down, at which time he saw the young person, K, in the back seat.
[11] It was the evidence of Officer Konkle that he observed an unopened beer can in the front console, and that he smelled a strong odour of burnt marijuana when the window was rolled down.
[12] Officer Konkle stated that he told Mr. Frederick that he had entered a construction zone and asked him where he was headed. According to Officer Konkle, Mr. Frederick told him that he was headed home, which was just off the Neilson exit and that this was his normal route. Officer Konkle had the sense that Mr. Frederick was being truthful with him, and that driving in the construction zone was an honest mistake.
[13] Officer Konkle asked Mr. Frederick for his driver’s licence, the car ownership and insurance. Mr. Frederick provided the ownership and insurance information, which matched the white Malibu, and matched with the name of the registered owner, Ronald Reynolds.
[14] However, Mr. Frederick had no identification with him. Officer Konkle then went back to the police vehicle for his dash pad on which to write Mr. Frederick’s information. At this time, Officer Konkle called dispatch for assistance.
[15] Officer Konkle returned to the Malibu to write down Mr. Frederick’s name and date of birth. He then went back to his police car again and ran Mr. Frederick’s information on the in-car computer. The information came back that Mr. Frederick was driving while under suspension for unpaid fines and for accumulated demerit points.
[16] Officer Konkle’s evidence was that he went back to the Malibu and asked Mr. Frederick who the registered owner was. According to Officer Konkle, Mr. Frederick answered Uncle David. Officer Konkle stated that the front passenger, that is, Mr. Frederick-Dwyer, also told him the registered owner was Uncle David. Officer Konkle knew that name did not match with the name Ronald Reynolds. Officer Konkle stated that he then asked Mr. Frederick where he was coming from, to which Mr. Frederick replied, “east of here, Lindsey, Ontario”.
[17] According to Officer Konkle, he was asking these questions to ascertain who had control of the car. He acknowledged that he was starting another investigation relating to a possible stolen vehicle.
[18] At 12:37 a.m., Officer Konkle arrested Mr. Frederick for driving under suspension. He also told Mr. Frederick that he was being investigated for a possible stolen vehicle. Officer Konkle handcuffed Mr. Frederick to the rear, did a pat-down search, and placed Mr. Frederick in his police car.
[19] Officer Konkle stated that it was not usual practice to handcuff and detain for an HTA offence, but that the handcuffing was for officer safety, as he was alone, and there were three men in the stopped car. It was also his evidence that the pat-down search was done as a search incident to arrest for any weapons and a means of escape or evidence, such as papers relating to his driving suspension.
[20] Officer Konkle testified that his grounds for believing that Mr. Frederick was connected to a stolen car were threefold:
i. the name Uncle David did not match with the name of the registered owner;
ii. it was late at night (an odd hour in his view) and vehicles were often stolen at night; and
iii. the car was coming from the direction or area where the registered owner lived.
[21] According to Officer Konkle, Officer O'Connell arrived just after he had placed Mr. Frederick in his police cruiser. He and Officer O'Connell were then both at the passenger side of the Malibu. Officer Konkle stated that at that time, he saw two burnt roaches in the bottom right corner of the gear shifter. He described the roaches as having a brown yellowish tinge on one side, white on the other side, and no larger than the size of a pinky fingernail.
[22] Officer Konkle’s evidence was that at that time, he told the passengers, Mr. Frederick-Dwyer and the young person K, that they were under investigative detention for a possible stolen car. They were asked to step out of car. The two passengers were handcuffed and subjected to pat-down searches. Although the two passengers had been compliant and cooperative, Officer Konkle testified that the pat-down search was necessary for officer safety. His officer safety concern was rooted in his experience that people can change their behavior rapidly, and that there were only two officers on scene, himself and Officer O'Connell.
[23] According to Officer Konkle, at that time Mr. Frederick-Dwyer told him that Uncle David is also known as Uncle Ron, and that he had a phone number for the owner of the car. Given that the name of the registered owner was Ronald, Officer Konkle stated that he uncuffed the two men. It was Officer Konkle’s evidence that the men were no longer under investigative detention and were free to leave.
[24] Officer Konkle testified that later that evening he called the phone number provided by Mr. Frederick-Dwyer and spoke with Mr. Ronald Reynolds, who confirmed that both Mr. Frederick and Mr. Frederick-Dwyer had permission to drive his car.
[25] It appears that after there was some clarification about the owner of the car, Officer Konkle provided Mr. Frederick with his rights to counsel with respect to the HTA charges. This occurred at 12:43 a.m. Mr. Frederick indicated that he understood and asked if he would be released. Upon hearing from Officer Konkle that he would be released, Mr. Frederick stated that he did not need to speak to a lawyer at that time. At 12:44 a.m., Officer Konkle provided the caution to Mr. Frederick.
[26] After providing Mr. Frederick with his rights to counsel, Officer Konkle remained in his cruiser to write up the documents required for the summons under the HTA. Around that time, Officers Weatherill and Seo arrived on scene. Officer Konkle testified that his fellow officers came to his police car, and he told them that he had smelled a strong odour of marijuana in the stopped car and had seen two joints in the gear shifter. When his fellow officers offered to assist, Officer Konkle told them that they could search the car while he completed his paperwork.
Officer O'Connell
[27] Officer O'Connell arrived on scene at 12:28 a.m. When he arrived, he saw Officer Konkle on the driver’s side of the Malibu, talking to Mr. Frederick. Officer O'Connell stated that he went to the passenger side and motioned for both the front and back passenger windows to be rolled down. It was his evidence that when the windows were down, he was met with an extremely overwhelming smell of burnt cannabis. He also stated that he saw small green leaves, or cannabis shake, on the stomach and thigh portion of the pants of the front seat passenger, Mr. Frederick-Dwyer, as well as an unopened beer can in the front console cup holder.
[28] Given these observations, Officer O'Connell asked Mr. Frederick-Dwyer whether he had smoked marijuana in the car, and he also asked about the beer can. He stated that his purpose in asking questions about consumption was for purposes of an impaired driving investigation. Mr. Frederick-Dwyer told him that he had smoked marijuana some two hours earlier.
[29] According to Officer O'Connell, when Mr. Frederick and Officer Konkle left the Malibu, he stood by the side of the Malibu, while the two passengers, Mr. Frederick-Dwyer and the young person, remained in the car. It was his evidence that Mr. Frederick then returned to the Malibu and stood beside him on the passenger side. Officer O'Connell stated that Officer Konkle then told him he was unsure about the ownership of the Malibu, and that he was going back to his police car to do some checks.
[30] When Officer O'Connell was at the side of the car with Mr. Frederick, he asked him about the ownership of the car. According to Officer O'Connell, he asked whose car it was, whether he had permission to drive it, and where Mr. Frederick was going. At that time, Mr. Frederick-Dwyer and the young person remained seated inside the car. Officer Konkle then returned to Officer O'Connell and Mr. Frederick, and advised that Mr. Frederick had a suspended license, and that he was still uncertain as to whether the car had been stolen.
[31] Officer O'Connell saw Officer Konkle arrest Mr. Frederick for a suspended license and cuff him, and then take him to his police car, while Officer O'Connell remained with the two passengers.
[32] According to Officer O'Connell, he knew that there was going to be a criminal investigation into whether the car was stolen, or being driven without consent, as well as the HTA offence. He then asked Mr. Frederick-Dwyer to step out of the car and advised him that he was under investigative detention for possession of stolen property or for taking a car without consent. Officer O'Connell put Mr. Frederick-Dwyer in handcuffs as he took him away from the Malibu and the other passenger.
[33] It was around that time that Officer Al-Obaidi arrived on scene. Officer Al-Obaidi conducted a pat-down search of Mr. Frederick-Dwyer.
[34] According to Officer O'Connell, shortly thereafter, Officer Konkle returned to where he and Officer Al-Obaidi were standing by and advised that he was satisfied that Mr. Frederick had permission to drive the Malibu, and that he had no further concerns about the ownership of the car. The handcuffs were removed from Mr. Frederick-Dwyer.
[35] Officer O'Connell saw Officers Soe and Weatherill who had also arrived on scene begin searching the Malibu. After a firearm was located, Officer O'Connell arrested Mr. Frederick-Dwyer for possession of a firearm. This occurred at 12:47 a.m. Officer O'Connell took Mr. Frederick-Dwyer to his squad car and read him his rights to counsel and caution. According to Officer O'Connell, Mr. Frederick-Dwyer indicated that he understood and requested a lawyer. After this time, Officer Weatherill approached and advised that controlled substances had also been found in the Malibu. According to Officer O'Connell, he then rearrested Mr. Frederick-Dwyer for possession of a firearm and possession of controlled substances and reread the rights to counsel and caution.
[36] Once at the station, Officer O'Connell facilitated Mr. Frederick-Dwyer’s call to counsel.
Officer Al-Obaidi
[37] According to Officer Al-Obaidi, when he arrived on scene at 12:36 a.m., he saw Officer O'Connell standing on the side of the highway with Mr. Frederick-Dwyer. It was his evidence that Officer O'Connell told him that Mr. Frederick-Dwyer was under investigative detention for a stolen car, and that Officer O'Connell asked him to assist with a pat-down search of Mr. Frederick-Dwyer for possible weapons. Officer Al-Obaidi conducted the pat-down search.
[38] Officer Al-Obaidi testified that after he finished the search, at 12:39 a.m., he removed the handcuffs from Mr. Frederick-Dwyer as he had been compliant. Officer Al-Obaidi did not consider that the handcuffs were necessary. Officer Al-Obaidi did not hear anyone question Mr. Frederick-Dwyer while he was conducting the pat-down search, and he stated that Officer Konkle was not nearby at that time. His evidence was that he was at the roadside together with only Officer O'Connell, Mr. Frederick-Dwyer and the young person. He was still standing by with them at 12:47 a.m., when he received information that a firearm had been found in the car.
The Search of the Car
[39] Officers Weatherill and Seo were involved in the search of the white Malibu. Officer Seo arrived on scene at 12:40 a.m., and Officer Weatherill arrived minutes later, at 12:42 a.m.
[40] Officer Weatherill stated that he was asked to assist with the search by Officer Konkle, who had advised that a person was in custody for driving while under suspension. Officer Weatherill acknowledged that his role in this case was to follow the instructions of Officer Konkle, who was the lead officer. It was his evidence that when he spoke to Officer Konkle, he was alone.
[41] Officer Weatherill stated that he understood his authority to search to be based on the authority to search incident to arrest, the Liquor Control Act, R.S.O. 1990, c. L.18 and the CCA. His evidence was that, pursuant to the search incident to arrest, he could search to look for evidence, such as suspension documents, or a driver’s license.
[42] When Officer Seo arrived on scene, he saw Officers Konkle, O'Connell and Al-Obaidi. It was also his evidence that there were three male civilians standing at the side of the road. Officer Seo testified that the first thing he did upon arrival was check with his fellow platoon officers to make sure everyone was okay. He stated that he then did a quick observation through the passenger side window of the white Malibu, using his flashlight to look inside. Officer Seo testified that he saw two rolled up burnt joints around the gear shift in the middle of the console. It was his evidence that the burnt joints were in plain view. Officer Seo described the roaches as burnt on one side, and in his view, it looked like they had already been smoked. Officer Seo also said that he noticed a strong smell of burnt marijuana.
[43] Officer Seo wanted to assist his team at the scene. It was his evidence that he asked Officer Konkle what he wanted him to do, and Officer Konkle instructed him to search the car. Officer Seo stated that he did not ask Officer Konkle for grounds to search, as he had already formed his own grounds after seeing the roaches and smelling the marijuana.
[44] Officer Weatherill began his search on the driver’s side of the car. He stated that he detected a strong odour of burnt marijuana in the car. Officer Weatherill testified that he observed two burnt roaches in the center console and a can of Old Milwaukee beer in the cup holder. According to Officer Weatherill, the smell and the observation of the roaches allowed him to search the car pursuant to the CCA. Officer Weatherill’s evidence about whether he seized the two roaches was equivocal and inconsistent. Officer Weatherill testified that he also saw cannabis residue on the floor of the driver’s side of the car, although this residue was not seized.
[45] Officer Weatherill then observed that the side paneling, in the area that separates the driver’s side from the passenger’s side of the front cabin, was visibly loose. He stated that this side paneling was near where the right leg or right shin of the driver would be. Officer Weatherill stated that it appeared as if this paneling had been tampered with. His evidence was that he applied minimal pressure to the panel, using all his fingers on one hand, and it came right off. There was nothing behind the paneling on the driver’s side of the car. Officer Weatherill stated that he then clipped the panel back into the console.
[46] Officer Seo searched on the passenger side of the Malibu. His evidence was that he was looking for marijuana. He described a bottom panel, of some 3 to 5 centimeters, close to the passenger seat, and stated that he observed a gap that looked abnormal. Officer Seo stated that when he looked in the gap, the panel came off. Behind the panel was a black pistol with the muzzle facing down, a bag of white powder, and a bag of purple powder. It was his view that the white powder was cocaine and the purple powder was fentanyl.
[47] Officer Seo told Officer Weatherill that he found a gun, and Officer Weatherill came around to the passenger side to prove the gun safe. Officer Seo also reported to Officer Konkle that he located a firearm.
[48] Officers Weatherill and Seo were searching the car at the same time, Officer Weatherill on the driver’s side and Officer Seo on the passenger side. Both officers testified that there was no communication between them until Officer Seo located the firearm. In particular, the loose panels were mirror images of each other, that is, one was on the driver’s side and one on the passenger’s side. However, their evidence was that neither told the other about a loose panel, which they each described as unusual or abnormally loose.
[49] The firearm was located at 12:47 a.m. At 12:53 a.m., Officer Konkle arrested Mr. Frederick for possession of the firearm and trafficking in a Schedule I substance, while Officer O’Connell arrested Mr. Frederick-Dwyer and Officer Al-Obaidi arrested the young person K.
[50] Officer Konkle provided Mr. Frederick with his rights to counsel at 12:53 a.m. Mr. Frederick indicated that he wanted to speak to a lawyer, and that he had no lawyer of choice. Officer Konkle arrived at the Toronto Detachment at Keele Street and Highway 410 at 1:03 a.m. and facilitated Mr. Frederick’s call with duty counsel.
[51] Once back at the Detachment, Officer Konkle also received information from the Peterborough police that confirmed that the white Malibu had not been stolen.
Jahvon Frederick-Dwyer
[52] Jahvon Frederick-Dwyer testified on the application. Mr. Frederick-Dwyer has a criminal record from 2015 to 2017, which includes convictions for assault, possession of a Schedule II substance and three counts of failure to comply with a recognizance. It was his evidence that he and his brother, Tareek Frederick, had been at a gathering at a friend’s home in Durham, and that the friend that was supposed to drive them home was unable to do so. As a result, another friend, Chris, gave them a car to use that evening, with the plan that it would be picked up at their building in Toronto the following morning.
[53] Mr. Frederick-Dwyer stated that as their car left Highway 401 towards the Neilson Road exit, the car was stopped by a police officer. It was his understanding that the police officer who spoke to Tareek told him that he had driven into a construction zone.
[54] Mr. Frederick-Dwyer stated that after his brother, Tareek, gave the officer documents from the glove box, the officer went to his police car. The officer returned to the Malibu and told Mr. Frederick to step out, and that he was under arrest for driving while under suspension. According to Mr. Frederick-Dwyer, he did not see where the officer took his brother and that was the last time he saw him that evening.
[55] It was Mr. Frederick-Dwyer’s evidence that there were then two officers on the passenger side of the car talking to him and the young person. He stated that he was asked questions, such as where they were coming from that evening, and if he had been smoking or drinking. Mr. Frederick-Dwyer told the officer that he had smoked marijuana earlier that day, at around 5:00 to 6:00 p.m.
[56] Mr. Frederick-Dwyer also stated that he was asked questions about the car and was told by the officer that he suspected the car was stolen.
[57] According to Mr. Frederick-Dwyer, he told the officers that ‘Chris’ had given them permission to drive the car and that it was not stolen.
[58] Mr. Frederick-Dwyer’s evidence was that he stepped out of the car as requested and was handcuffed to the rear and subjected to a pat-down search. It was possible that the officers told him that he was under investigative detention about a possible stolen car. He stated that on the pat-down search, the officer located five grams of marijuana in a pocket of his shorts. Mr. Frederick-Dwyer testified that he kept the marijuana there because he had been stopped and searched on other occasions.
[59] Mr. Frederick-Dwyer’s evidence was that he was attempting to contact Chris through social media so that Chris could provide him with information about the car, which he could then pass on to the police. His evidence was that an officer removed the handcuffs so that he could use his phone. Mr. Frederick-Dwyer stated that he did reach Chris, who provided him with a telephone number and information that the car belonged to Ronald. Mr. Frederick-Dwyer conveyed this information to the police. He acknowledged that he was in handcuffs for no more than 30 seconds.
[60] Mr. Frederick-Dwyer was told to stand by at the side of the road. As he was there, he saw two officers at the front end of the car, and he thought that they were searching the car.
[61] Ultimately, Mr. Frederick-Dwyer was arrested for the firearm and the drugs found during the search of the car.
[62] According to Mr. Frederick-Dwyer, he had never been in that car prior to that evening. His evidence was that he did not smoke or drink in the car that evening, nor did the other occupants. Mr. Frederick-Dwyer also stated that he did not notice any marijuana or alcohol in the car, as he looked around the car when he got in, adjusted the radio and played with his seat. He also did not notice if there was an abnormally loose panel to his left side, to the right of the center console. He reiterated that he had never been in the car before, so that he would not know if something was unusually loose, and that everything in the car looked normal to him. Further, it was his evidence that if there had been open liquor or burnt roaches in the car, he and his brother would have removed it, as they had been stopped by police before and did not want to give the police any reason to arrest them.
Analysis
Initial detention of Tareek Frederick
[63] The defence submits that there were breaches of ss. 8 and 9 of the Charter at the time of Mr. Frederick’s initial detention by Officer Konkle. The defence submits that Mr. Frederick’s removal from the Malibu, the pat-down search and the detention in the police cruiser were not actions taken pursuant to the HTA arrest. Rather, the defence submits that these actions were taken on the basis of a hunch by Officer Konkle that the car had been stolen or was being driven without consent of the owner.
[64] It is the Crown’s position that Officer Konkle was authorized to stop Mr. Frederick’s car pursuant to s. 216(1) of the HTA for driving into an active construction zone and a closed road. The Crown further submits that once Officer Konkle learned that Mr. Frederick was driving while suspended, contrary to s. 53 of the HTA, Officer Konkle was authorized to arrest him under s. 217(2) of the HTA, as s. 53 is one of the listed arrestable offences.
[65] There is no issue that Officer Konkle was authorized to stop Mr. Frederick’s car and could have arrested him for driving while suspended. However, by his own account, Officer Konkle was at the same time undertaking an investigation about whether the Malibu was stolen or whether Mr. Frederick had the consent of the registered owner to drive it. As stated in Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 43 O.R. (3d) 223, at para. 31, a HTA stop where the police are furthering some other legitimate interest is lawful, provided that “the additional police purpose is not improper and does not entail an infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating HTA.”
[66] The critical issue is whether Officer Konkle had a legitimate road safety purpose in mind when he arrested Mr. Frederick, or whether he was using the HTA authority as a pretext to detain and search Mr. Frederick in the pursuit of a criminal investigation: see R. v. Mayor, 2019 ONCA 578, 2019 O.J. No. 3555, at para. 9. This is a factual determination, based on all the circumstances: see Brown, at para. 27; R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 57.
[67] As soon as Officer Konkle was satisfied that the car was not stolen and that Mr. Frederick was driving it with consent, he released him from being detained in the back of the police cruiser. In my view, the timing of this release belies the Crown position that Officer Konkle exercised his arrest power for a purpose related to the charge of driving under suspension or to the HTA in general. Stated differently, if this had been an arrest under the HTA, Mr. Frederick would have remained detained in the police cruiser, regardless of what Officer Konkle learned about the status of the car.
[68] This circumstance distinguishes this case from R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, where the Supreme Court of Canada found that, when exercising the regulatory authority to detain and search the driver, the officer was motivated by both criminal and regulatory investigative purposes. In this case, had there been a legitimate dual purpose, Mr. Frederick would not have been released once the concerns about the car were dispelled. The timing of Mr. Frederick’s release satisfies me that Officer Konkle did not exercise the arrest power under the HTA for any purpose related to the charge of driving while under suspension. Rather, I find that Officer Konkle’s sole purpose in exercising the HTA statutory power of arrest was to give him some “putative authority” to pursue the stolen car investigation: see R. v. Hopkins, 2021 ONCJ 71, at para. 31.
[69] The question then becomes whether Officer Konkle had reasonable grounds to suspect in all the circumstances that Mr. Frederick was connected to a stolen car, and whether detention was necessary: see R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 45.
[70] The relevant circumstances can be summarized as follows:
i. Officer Konkle testified that he accepted that Mr. Frederick driving into a construction zone was an honest mistake;
ii. there were no concerns about the vehicle as it had not been reported stolen and the licence plates matched the vehicle;
iii. although Mr. Frederick did not have his identification with him, he provided his proper name and date of birth to Officer Konkle;
iv. Mr. Frederick provided all proper documentation upon request;
v. the documents, such as ownership and insurance, matched the vehicle;
vi. Mr. Frederick and the two other occupants were cooperative and compliant throughout;
vii. Mr. Frederick told Officer Konkle that the vehicle’s registered owner was Uncle David, and that he lived east of Toronto, near Lindsay. Mr. Frederick’s knowledge about where the owner lived was consistent with the information Officer Konkle had learned on his computer search, namely that the registered owner lived in Peterborough; and
viii. there was no evidence to suggest that the registered owner was not known as Uncle David.
[71] In this context, Officer Konkle’s evidence was that he detained and searched Mr. Frederick because:
i. the registered owner’s name was Ron, and not David, as stated by Mr. Frederick;
ii. it was midnight, which was an “odd” hour according to Officer Konkle;
iii. the car was being driven away from the location of the registered owner; and
iv. vehicles are often stolen at night.
[72] Officer Konkle focused in large part on the discrepancy between the name of the registered owner, Ron, and the name David, provided by Mr. Frederick. However, it is not unusual that one might allow another person to drive their car, and that person could reasonably not know the name of the registered owner. In cross-examination, defence counsel put the scenario to Officer Konkle that a person could have a car, the registered owner of which was their parent. If that person lent the car to a friend, the friend might be unaware of who the registered owner is. After some vacillating, Officer Konkle acknowledged that it is a reasonable possibility that someone who borrows a car would not necessarily know who the registered owner is.
[73] It is also the case that midnight is not a particularly odd hour. Officer Konkle testified that there was light traffic on the 401 at that time, and that it was not unusual for a person to be driving at that hour. As well, the evidence of Officer Konkle, that cars are stolen at night, was rooted in his evidence that officers received information to be on the look-out for stolen automobiles (“BOLOS”) more frequently at night than in the day. That said, Officer Konkle was unable to offer any precision as to the frequency of these occurrences or the time of night these BOLOS generally occurred.
[74] In short, there are a variety of legitimate reasons for a person to be driving on the highway at night, in a direction away from the address of the registered owner, and for the driver to be unaware of the correct name of the registered owner.
[75] Also relevant to the analysis of whether there were reasonable grounds to suspect that Mr. Frederick was connected to a stolen vehicle is the evidence that Mr. Frederick was released once Mr. Frederick-Dwyer told Officer Konkle that Uncle David is also known as Uncle Ron. This information did not come from an independent third party; Mr. Frederick-Dwyer was also a suspect. In my view, the release of Mr. Frederick following the information received, and not yet confirmed, from Mr. Frederick-Dwyer, further points to the frailties in the grounds for the investigative detention. Had the initial grounds for detention been more robust, Officer Konkle’s decision to detain Mr. Frederick would not have been so readily reversed on information from Mr. Frederick-Dwyer.
[76] The Ontario Court of Appeal, in R. v. Bejarano-Flores, 2020 ONCA 200, [2020] O.J. No. 1081, citing R. v. Chehil, 2013 SCC 49, [2013] S.C.R. 220, summarized the legal principles governing the reasonable suspicion standard:
[53] The reasonable suspicion threshold respects the balance struck – in this case under s. 9 of the Charter – by permitting law enforcement to employ legitimate but limited investigative techniques (Chehil, at para. 25). Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts that can then be subjected to independent judicial scrutiny. This scrutiny is exacting and must account for the totality of the circumstances (Chehil, at para. 26).
[54] While reasonable grounds to suspect and reasonable and probable grounds to believe are similar, in that both must be grounded in objective facts, reasonable suspicion is a lower standard as it engages the reasonable possibility, rather than probability, of crime (Chehil, at para. 27). The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. However, the suspicion cannot be so broad that it descends to the level of generalized suspicion (Chehil, at para. 28).
[55] Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience (Chehil, at para. 29). Reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors (Chehil, at para. 32). Exculpatory, neutral or equivocal information cannot be disregarded when assessing a constellation of factors (Chehil, at para. 33).
[56] The requirement for objective and ascertainable facts as the basis for reasonable suspicion permits an independent after-the-fact review by the court and protects against arbitrary state action. The onus is on the Crown to show that the objective facts rise to the level of reasonable suspicion, such that a reasonable person, standing in the shoes of the police officer, would have held a reasonable suspicion of criminal activity (Chehil, at para. 45).
[77] The arrest of Mr. Frederick must also be considered through the lens of the decision of the Supreme Court of Canada in R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408.
[78] In Aucoin, the police officer had detained the accused because he had reasonable grounds to believe that the accused had committed a traffic violation. The officer was concerned about the risk of flight while he wrote up the ticket, so he detained the accused in the rear of his cruiser. Before doing so, the officer conducted a pat-down search of the accused for safety reasons and found drugs.
[79] While there was no arrest involved in Aucoin, I am nonetheless of the view that the approach of the Supreme Court to allowing traffic infractions to serve as a justification for a pat-down search can be applied to this case. The Supreme Court stated:
[35] To be clear, I do not see this case as turning on whether Constable Burke had the authority to detain the appellant in the rear of his police cruiser, having lawfully stopped him for a regulatory infraction. Rather, the question is whether he was justified in exercising it as he did in the circumstances of this case…
[37] That brings me to what I consider to be the flaw in the trial judge’s analysis in this case. Given the adverse impact that the decision to secure the appellant in the rear of the cruiser would have on his liberty and privacy interests, I am of the view that a more stringent test than the one applied by the trial judge was required to support her determination that Constable Burke’s actions were lawful in the circumstances.
[38] Constable Burke knew that as a prelude to securing the appellant in the rear of his cruiser, he was going to do a pat-down search on him for reasons of officer safety and the appellant’s safety. His reason for wanting to secure the appellant was to prevent the appellant from walking away and disappearing into the crowd. The trial judge accepted the officer’s evidence in that regard. It was late at night, the street was crowded with people, and the appellant’s vehicle was off-limits to him.
[39] Accepting, as the trial judge did, that Constable Burke was concerned about the appellant walking away, I am nonetheless of the view that in the context of this case, in order to justify securing the appellant in the back seat — knowing that this would also entail a pat-down search — detaining the appellant in that manner had to be reasonably necessary. In other words, the question to be asked is whether there were other reasonable means by which Constable Burke could have addressed his concern about the appellant disappearing into the crowd, short of doing what he did. If there were other reasonable means to ensure the appellant would not flee the scene, then detaining him in the police cruiser could not be said to be reasonably necessary and would thus have constituted an unlawful detention within the meaning of s. 9 of the Charter: Clayton, at para. 20.
[40] Without wishing to second-guess the actions of the police and recognizing, as I do, that the police are often required to make split-second decisions in fluid and potentially dangerous situations, I am nonetheless of the view that Constable Burke’s actions, though carried out in good faith, were not reasonably necessary.
[80] In this case, it was the evidence of Officer Konkle that he arrested and handcuffed Mr. Frederick for the offence of driving under suspension because he was alone and there were two other people in the car. However, it was the evidence of Officer O'Connell that he was on scene at the time of the arrest. Firstly, I note that as a factual matter, I accept that Officer O'Connell was already on scene at the time of Mr. Frederick’s arrest. Indeed, this timing was accepted by the Crown in closing submissions. Secondly, by all accounts, Mr. Frederick, Mr. Frederick-Dwyer and the young person were compliant and cooperative throughout. As stated, Officer Konkle accepted that Mr. Frederick made an honest mistake when he drove into the construction area. Finally, Officer Konkle had called for back-up shortly after he stopped the car in the construction area. He would have reasonably known that back-up would arrive very soon (if not already there in accordance with the evidence of Officer O'Connell). He could have waited a few more minutes to write up the information about the driving infraction, without resorting to the arrest power under the HTA.
[81] The flow of events in this situation did not develop into a dynamic scene as suggested by the Crown. There was no resistance, no attempt to escape and no violent struggle: see generally R. v. Amofa, 2011 ONCA 368, [2011] O.J. No. 2095.
[82] In summary, the computer searches revealed no concerns about the car. There was no other evidence to suggest that the Malibu had been stolen, save for the initial apparent confusion about the name of the registered owner. There were no objective facts to ground a reasonable possibility of crime. I am satisfied that Officer Konkle used the arrest power under the HTA to arrest Mr. Frederick on the basis of an unsubstantiated hunch that the car was stolen, as evidenced by the release of Mr. Frederick once the hunch was refuted. At the same time, consistent with Aucoin, I find that arresting Mr. Frederick for driving under suspension was not reasonably necessary in the circumstances: see Aucoin, at para. 40.
[83] For all these reasons, I find there was a breach of Mr. Frederick’s s. 9 Charter rights at the roadside.
[84] It follows that the pat-down search of Mr. Frederick at the roadside which followed his detention was a breach of his s. 8 Charter right to be secure against unreasonable search.
Section 10(b) and the initial detention and arrest of Mr. Frederick
[85] Sections 10(a) and (b) of the Charter guarantee that everyone on arrest or detention has the right “to be informed promptly of the reasons therefor” and “to retain and instruct counsel without delay and to be informed of that right”.
[86] At 12:37 a.m., Officer Konkle told Mr. Frederick that he was being arrested for driving under suspension and investigated on the suspicion that the car may have been stolen. Mr. Frederick was advised of his rights to counsel by Officer Konkle at 12:43 a.m., six minutes later.
[87] The words “promptly” in s. 10(a) and “without delay” in s. 10(b) have been interpreted to mean “immediately,” subject to concerns for officer or public safety: see R. v. Suberu, 2009 SCC 33, [2009] S.C.R. 460, at paras. 2, 41; R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 123.
[88] As Campbell J. explained in R. v. Grant, 2015 ONSC 1646, [2015] O.J. No. 1229, at para. 106:
As the right under s. 10(a) must be accorded ‘promptly’ and the right under s. 10(b) must be accorded ‘without delay,’ and both rights arise upon ‘arrest or detention,’ it strikes me that both of these rights must be subject to the same limited exception for ‘concerns for officer or public safety.’ In other words, the police are not obliged to comply with their obligations under ss. 10(a) or 10(b) of the Charter while they are legitimately and reasonably engaged in protecting themselves or the members of the public (including the suspect/accused). This is only sensible. Police officers cannot be expected to advise detained or arrested individuals about their constitutional rights at a time when they reasonably believe that to do so places their safety, or the safety of members of the public (including the suspect/accused), at risk or at stake.
[89] The Crown submits that the six-minute delay in advising Mr. Frederick of his rights to counsel can be attributed to Officer Konkle’s concerns about officer safety. Among other things, the Crown submits that:
i. At the time, Officer O’Connell was alone with the two other parties, Mr. Frederick-Dwyer and the young person, who were sitting in the Malibu. If Officer Konkle read rights to counsel to Mr. Frederick, he could not pay attention to Officer O’Connell and the other two parties;
ii. At the time, Officer Konkle also suspected that the parties were in possession of a possible stolen vehicle;
iii. Officer Konkle did not know who the parties were, if they posed a danger, or if they had weapons;
iv. It was nighttime, on the highway;
v. Even though they were compliant, based on Officer Konkle’s work experience, he was aware that people’s behaviour could change. As he testified, he believed the parties in the vehicle could have thought “this police officer’s going to think it’s a stolen car maybe we should run…maybe we should do something about it; let’s get out of here, like, we don’t want to go to jail.”
[90] However, I note the following:
i. By all accounts, Mr. Frederick, Mr. Frederick-Dwyer and the young person were co-operative and compliant when the car was stopped, and when Officer O'Connell was on scene beside the car;
ii. Officer Konkle accepted that Mr. Frederick’s driving into the construction area was an honest mistake; and
iii. The foundation for a reasonable suspicion about a stolen car has been examined and rejected.
[91] In essence, this leaves the fact that it was nighttime, and Officer Konkle’s experience that people’s behavior can change, as the reasons for the s. 10(b) delay. I am not persuaded that these are legitimate reasons. Officer Konkle’s concern that the suspects could run away into traffic was largely speculative and generic, and not rooted in any evidentiary basis. It also flies in the face of the evidence that at times both Mr. Frederick and Mr. Frederick-Dwyer were outside the car and not cuffed.
[92] I recognize that courts should be cautious about second-guessing officer safety: see R. v. White, 2007 ONCA 318, 85 O.R. (3d) 407. Indeed, officer safety is always of concern in an investigation. However, in this case, the concerns were of a general nature only. The fact that it was nighttime cannot on its own ground safety concerns. On the evidence, there was no objective evidence to support the assertion that officer safety justified the delay in providing Mr. Frederick with his rights to counsel.
[93] I find that there was a s. 10(b) breach with respect to providing Mr. Frederick with his rights to counsel at the time of his initial arrest.
Section 8 of the Charter and the search of the Malibu
[94] A warrantless search is presumptively unreasonable and contrary to s. 8 of the Charter. The onus is on the Crown to establish on a balance of probabilities that a warrantless search was authorized by law, the law itself is reasonable and the manner in which the search was carried out was reasonable.
[95] The parties agree that the legality of the search of the Malibu turns on s. 12 of the CCA. This section provides as follows:
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.
(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.
[96] It is the Crown’s position that the search was justified based on the odour of burnt marijuana and the two roaches observed on the center console. The Crown submits that these observations led the officers to subjectively believe that more marijuana was in the car in contravention of the CCA and that this belief was reasonable. The Crown further submits that the search was conducted in a reasonable manner.
[97] There were numerous inconsistencies among the police witnesses as to what occurred that evening, including what was seen in the car and when, internal consistencies within various officers’ evidence, and observations that were not recorded in their notes. Officer Konkle, in particular, at times testified in a combative and confusing manner. By way of illustration, I note the following:
i. Officer Konkle testified that he saw the roaches when he returned to the car and was dealing with the two passengers, together with Officer O'Connell. However, Officer O'Connell did not observe any marijuana roaches. Officer O'Connell stated that he saw marijuana shake, although no other officer saw shake.
ii. Officer Konkle testified that he could distinguish between the smell of fresh marijuana and burnt marijuana. In his evidence at trial, Officer Konkle stated that he was 99.9 percent sure that what he smelled that night was freshly burnt marijuana. That said, at the preliminary inquiry in December 2020, Officer Konkle’s evidence was that he was not sure whether he smelled burnt or fresh marijuana, although he thought it may have been burnt.
iii. At the preliminary inquiry, Officer Weatherill was not sure how many roaches he saw, although at trial he testified that he saw two roaches.
iv. Officer Konkle testified that he was able to observe the roaches without using his flashlight since the area was well lit, whereas Officer Seo stated that he needed to use his flashlight and Officer Weatherill testified that he would not have been able to see the roaches without his flashlight.
v. Officer Konkle testified that he told Officers Seo and Weatherill that he saw two roaches in the car. Officer Weatherill initially testified that Officer Konkle told him about the roaches, but after being taken to his preliminary inquiry evidence, he adopted his earlier evidence that Officer Konkle did not tell him about the roaches until he searched the car. Officer Seo’s evidence was that Officer Konkle did not tell him anything about the marijuana, but just asked him to search the car.
vi. Officer Weatherill testified that he seized the cannabis from the car, but then adopted his earlier evidence that he did not recall seeing the roaches, and he did not know if they were seized.
[98] Despite the different accounts of what was observed and when, the collective police evidence was generally consistent about the smell of marijuana and the presence of small burnt roaches. I accept the evidence of Officers Konkle, Seo and Weatherill that they observed burnt roaches in the general area of the gear shift and console. I am not persuaded that the inconsistencies in the collective police evidence, or the failure to seize or photograph the roaches, leads to the finding that all the officers fabricated the observation. I am also satisfied based on the evidence, that Officers Seo and Weatherill searched the car on Officer Konkle’s instructions.
[99] The critical issue is whether the observations of the two burnt roaches, described by Officer Konkle as smaller than a fingernail, and the apparent smell of burnt marijuana are a sufficient basis to search under the CCA.
[100] The CCA is relatively new legislation. In R. v. Sappleton, 2021 ONSC 430, following a lawful HTA stop, Mr. Sappleton was arrested for breaching his recognizance. There was also a Special Interest Police notification pertaining to Mr. Sappleton indicating that he was the subject of a Guns and Gangs investigation and was believed to be in possession of a firearm. When Mr. Sappleton was searched incident to arrest, the police found marijuana in a plastic baggie and a piece of cellophane wrap in his satchel. When the arresting officer asked Mr. Sappleton if he had any other drugs in the car, Mr. Sappleton stated “just the weed and some tobacco”. The arresting officer searched the vehicle under s. 12 of the CCA and found a firearm behind the glove box. The Court held that the police lacked reasonable grounds to believe that any additional marijuana was stored in the vehicle in contravention of the CCA. Furthermore, the police had no basis to search the trunk or other locations in the vehicle in the manner that they did.
[101] In R. v. Grant, 2021 ONCJ 90 (Grant 2021), following a lawful HTA stop, the investigating officer smelled burnt cannabis coming from the vehicle and saw cannabis shake on the center console. While performing a sobriety check on the driver, who admitted having consumed drugs or alcohol earlier, the driver pulled out a baggy from his pocket and said, “it’s just weed”. The officer searched the driver, the passenger and the vehicle, pursuant to s. 12 of the CCA, and in the course of searching the passenger, the officer discovered a firearm. The Court adopted a more expansive view of s. 12 than in Sappleton, and found that once the driver produced the baggy from his pocket and the officer formed reasonable grounds to believe that the CCA had just been contravened, the officer was entitled to search the occupants and the vehicle.
[102] In R. v. Yaghoubi-Araghi, 2021 ONSC 5060, Mr. Yaghoubi-Araghi was stopped while he was driving pursuant to the RIDE program. Based on a strong odour of fresh cannabis, Mr. Yaghoubi-Araghi’s statement that there was cannabis in the bag on the backseat of the vehicle, observations of the bag being open, and Mr. Yaghoubi-Araghi’s possible impairment, the officer decided to search the bag under s. 12 of the CCA. He directed Mr. Yaghoubi-Araghi to move to the shoulder of the road. As Mr. Yaghoubi-Araghi proceeded to the shoulder, he accelerated and left the scene, crashing in a field. Mr. Yaghoubi-Araghi was found and arrested for dangerous driving and flight from police. The police searched the bag which had been on the backseat and found cannabis and a firearm. They also found a cooler in the trunk containing methamphetamine. The Court held that the search of the bag was not a pretext search and was not done with an improper purpose in mind. The officer had reasonable grounds to believe cannabis was not being transported in compliance with the CCA.
[103] The facts in this case are distinguishable from those relied upon by the Crown. In Sappleton, the police found marijuana in Mr. Sappleton’s satchel after a search incident to arrest. In Grant 2021, beyond the smell detected, the officer saw cannabis shake, was concerned about sobriety, and Mr. Grant had pulled a baggy of marijuana out from his pocket. In Yaghoubi-Araghi, in addition to odour, Mr. Yaghoubi-Araghi stated that there was cannabis in a bag in the backseat, the bag was open, and the officer had concerns about Mr. Yaghoubi-Araghi’s sobriety. In this case, there was no fresh marijuana observed, and no sobriety concerns. There were simply two burnt roaches and an odour.
[104] By his own account, after some hedging in his evidence, Officer Konkle acknowledged that the two roaches did not constitute having marijuana readily available. His evidence on cross-examination was as follows:
Q. Just so I’m clear on what your evidence is, you said you didn’t give a ticket for the two roaches because there was nothing you could do with it, right? You couldn’t smoke it?
A. Right.
Q. Okay.
A. Like, you can’t – like, there’s nothing left to smoke but the roach.
Q. Right. And so....
A. So, its garbage, like you said, and Mr. North said. It’s garbage.
Q. Okay. And so, just dealing with those two roaches that you’ve now said are garbage?
A. Right.
Q. That is not having cannabis readily available, correct?
A. That, no.
[105] In fact, regardless of the observation and significance of the roaches, the evidence establishes that Officer Konkle intended to undertake a search under the CCA based on smell alone. Again, Officer Konkle was rather oblique in parts of his testimony. However, when his cross-examination is carefully examined, it is the case that he believed he could search the car based on smell alone and that he intended to search the car once he smelled the marijuana, although as he stated, he likes to “have something extra” such as marijuana shake, a container in plain view, or maybe some joints.
[106] Officer Konkle misunderstood his authority to search. Smell alone is not a sufficient basis for a search. A s stated in R. v. Polashek, 1999 CanLII 3714 (ON CA), 45 O.R. (3d) 434:
…The smell of marijuana lingers, and thus it could have been smoked five minutes ago or several hours ago.…
…The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature smells are transitionary and thus largely incapable of objective verification. A smell will often have no trace.
[107] Further, given that there was no observation of marijuana, but merely small, previously smoked roaches, there was no, or very little, “something extra” to consider along with the smell to give rise to a reasonable belief that marijuana was readily available. This is not a case like R. v. Valentine, 2014 ONCA 147, [2014] O.J. No. 876, to which Officer Konkle specifically referred. In Valentine, at para. 56, the officer’s decision to arrest was based not only on the smell of raw marijuana in the car, but also on his finding of cash and a second cell phone and his observations about the appellant's misconduct during the course of his interaction with the police.
[108] In Sappleton, at para. 50, the Court stated as follows:
Obviously, whether the marijuana is properly stored (not readily available) is very much a contextual assessment. This assessment is informed by the underlying purposes of the regulations. The regulations are directed at road safety and preventing the risk of marijuana use by the driver or other occupants of the vehicle while driving. Society requires and expects protection from intoxicated and dangerous drivers. R. v. Burke(2020 ONCJ 516 (Ont. C.J.): R. v. Wise, 1992 CanLII 125, [1992] 1 S.C.R. 527 (S.C.C.), at p. 534: R. v. Belnavis, 1997 CanLII 320, [1997] 3 S.C.R. 341 (S.C.C.), at paras. 38-39. See R. v. F. (J.)(2015 ONSC 3068 (Ont. S.C.J.). Accessibility/ availability of the marijuana for use will clearly be a relevant consideration.
[109] On the facts of this case, I am not satisfied that the police had the necessary subjective and objective reasonable grounds to believe that marijuana was stored in contravention of the CCA before they searched the Malibu that night. There was no road safety purpose to their search.
[110] I find there was a s. 8 breach upon the search of the Malibu.
Initial detention of Jahvon Frederick-Dwyer
[111] Officer O'Connell approached the passenger side door, tapped on the window for it to be rolled down, and began asking Mr. Frederick-Dwyer questions at around 12:28 a.m. Officer O'Connell was close enough to the passenger side of the door that it would have hit him had it been opened. While Mr. Frederick-Dwyer was not physically detained, I accept that a reasonable person in his position would feel that he was required to remain in the car until an officer told him otherwise: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 31 (Grant 2009).
[112] When Officer O'Connell was at the side of the Malibu, Officer Konkle told him, before he went to the cruiser to enter Mr. Frederick’s name into his computer, that he had suspicions about the car. When Officer Konkle returned to where Officer O'Connell was standing, Officer Konkle advised him that he was still not satisfied about the status of the car but did not provide any additional or stronger reasons for his suspicion. Nonetheless, Officer O'Connell then asked Mr. Frederick-Dwyer to step out of the car and told him why he was being detained.
[113] It is the case that “where police exercise their power to stop and detain occupants of a motor vehicle pursuant to s. 216(1) of the HTA based on criteria that are relevant to highway safety concerns, they are not acting arbitrarily”: see R. v. Campbell-Noel, 2019 ONSC 430, at para. 75; R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at para. 27.
[114] However, I am not satisfied that in this case, the detention at the roadside of the occupants, namely Mr. Frederick-Dwyer and the young person, was pursuant to the HTA stop. I have considered Officer Konkle’s evidence that his grounds to detain Mr. Frederick-Dwyer and the young person were the same as the grounds to detain Mr. Frederick, along with the limited information that Officer Konkle provided to Officer O'Connell. For the reasons set out when addressing the detention of Mr. Frederick, I am of the view that the detention of Mr. Frederick-Dwyer, like that of Mr. Frederick, was rooted in the unfounded suspicion about a stolen car, and like the detention of Mr. Frederick, was unlawful.
[115] The fact that Mr. Frederick-Dwyer was not the driver of the Malibu, and at the time, the officers did not know that Mr. Frederick and Mr. Frederick-Dwyer were related, further reinforces the conclusion that there were no reasonable grounds to suspect that he was connected to a stolen vehicle and that detention was necessary.
[116] I find there was a s. 9 breach once Officer O'Connell began questioning Mr. Frederick-Dwyer at the side of the Malibu at 12:28 a.m.
[117] It follows that the pat-down search of Mr. Frederick-Dwyer at the roadside which followed his arbitrary detention was a breach of his s. 8 Charter right.
Sections 10(a) and 10(b) and the detention of Mr. Frederick-Dwyer
[118] The starting point for this s. 10 analysis is 12:28 a.m., the time at which Mr. Frederick-Dwyer was first detained pursuant to the investigative detention concerning the car. It was not until 12:37 a.m. that Mr. Frederick-Dwyer was given the reason for his detention by Officer O’Connell, namely the investigation of a possible stolen car.
[119] Very soon after Mr. Frederick-Dwyer was taken out of the car, handcuffed and searched, the confusion about the ownership of the car was resolved and Officer Al-Obaidi removed the handcuffs.
[120] The Crown submits that after the handcuffs were removed by Officer Al-Obaidi, Mr. Frederick-Dwyer was no longer under investigative detention and was free to leave the scene. The Crown points to the evidence of Officer Konkle, that he told Mr. Frederick-Dwyer that a tow truck was going to come and take them off the highway.
[121] However, Officer O'Connell testified that even after there was no longer a concern about the car, he was still going to run the names of Mr. Frederick-Dwyer and the young person to see if there were any issues regarding either of them. Officer O'Connell never told them that they were free to leave. Further, minutes after the handcuffs were removed, there were two more officers on scene, namely Officers Weatherill and Seo, making a total of five officers in the area. Officer O'Connell acknowledged that in the circumstances, Mr. Frederick-Dwyer and the young person could have thought that they continued to be detained. Officer Al-Obaidi also testified that Mr. Frederick-Dwyer continued to be detained, even after the handcuffs were removed.
[122] While Mr. Frederick-Dwyer was no longer physically detained and handcuffed, whether he was psychologically detained must be considered. Psychological detention must meet three criteria: “(i) a police command or direction (ii) compliance by the person now claiming a s. 9 detention and (iii) grounds for a reasonable belief that there was no choice but to comply”: see Grant 2009, at para. 177.
[123] The Court in Grant 2009 highlighted, at para. 176, that weight should be given to the experience of the person stopped when considering psychological detention:
There is, of course, an important continuing role for psychological detention as perceived by the person stopped, but in that respect serious weight should be given to the values and experience of the person actually stopped, including the experience of visible minorities, and less emphasis on the hypothetical opinion of the ‘reasonable person’ insofar as the latter is presumed to be able to handle such stressful encounters without sensing ‘significant . . . psychological restraint’ (Mann, at para. 19). As mentioned, Mr. Grant is black. In determining whether he (or a reasonable person in his position) would feel free to choose to walk away from three policemen, contrary to their wishes in the circumstances here, his ethnicity raises a significant issue.
[124] Mr. Frederick-Dwyer is a black man. He testified that he had been stopped and searched by police on previous occasions.
[125] I am satisfied that in all these circumstances, even after the handcuffs were removed, it was reasonable that Mr. Frederick-Dwyer would conclude that he was not free to go and that he had to comply with police direction. Mr. Frederick-Dwyer continued to be detained.
[126] Mr. Frederick-Dwyer was not told why he was being detained for nine minutes, from 12:28 a.m. to 12: 37 a.m. He was also not given any rights to counsel until after his arrest for the firearm and drugs at 12:51 a.m. As such, he was not provided with any s. 10(b) rights for 23 minutes.
[127] In all the circumstances, I find a ss. 10(a) and 10(b) breach in relation to the initial detention of Mr. Frederick-Dwyer.
Exclusion of Evidence under s. 24(2)
[128] In sum, there were eight Charter breaches:
i. ss. 9 and 8 breaches at the initial detention of Mr. Frederick;
ii. s. 10(b) breach when Mr. Frederick was not advised of his rights to counsel upon his initial detention and arrest;
iii. ss. 9 and 8 breaches at the initial detention of Mr. Frederick-Dwyer;
iv. ss. 10(a) and 10(b) breaches at the initial detention of Mr. Frederick-Dwyer; and
v. s. 8 breach upon the search of the Malibu.
[129] Evidence will be excluded under s. 24(2) where two conditions are met: (1) the evidence was obtained in violation of the Charter; and (2) the admission of the evidence would bring the administration of justice into disrepute.
[130] In considering the exclusion of evidence, as the Supreme Court of Canada determined in Grant 2009, at para. 71, the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system, having regard to:
The seriousness of the Charter-infringing state conduct;
The impact of the breach on the Charter-protected interests of the accused; and
Society’s interest in the adjudication of the case on its merits.
Seriousness of the Charter-infringing state conduct
[131] While numerous, the breaches vary in their seriousness.
[132] In R. v. Kitaitchik, 2002 CanLII 45000 (ON CA), [2002] O.J. No. 2476 (C.A.), at para. 41, Doherty J.A. suggested that police conduct amounting to a violation of a Charter right could be characterized as falling along a spectrum from less blameless to more blameless conduct:
Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights […] What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.
[133] The s. 10(b) breach with respect to Mr. Frederick was a delay of six minutes. The s. 10(a) breach with respect to Mr. Frederick-Dwyer was a delay of nine minutes and his s. 10(b) breach was a delay of 23 minutes.
[134] These breaches on their own are at the low end of the seriousness scale. They were not lengthy, they were situation-specific, there is no evidence that they were systemic, and significantly, they were not causally connected to the search and the discovery of the firearm and the drugs. Had this been a case of only the section s. 10 breaches, the analysis under the first Grant 2009 branch, and indeed under all three branches, would strongly favour admission of the evidence.
[135] However, the s. 10 violations were preceded by the two arbitrary detentions and the consequent pat-down searches.
[136] In R. v. Buchanan, 2020 ONCA 245, 150 O.R. (3d) 209, the police believed that drug trafficking was taking place in a home following a tip from a confidential informant. Similar complaints had been made previously about this residence. After surveilling the home, the police applied for a search warrant, but it was denied due to insufficient grounds to believe that drugs were in the residence. As such, the police decided to arrest the next suspected buyers, which led them to search their vehicle incident to arrest. This search revealed, among other things, a firearm and drugs.
[137] In Buchanan, the Court of Appeal upheld the trial judge’s determination that the level of negligence, a simple, unintentional miscalculation as to the strength of the grounds to arrest, did not rise to the level that would aggravate the seriousness of the state-infringing conduct.
[138] The facts of this case can be distinguished from those in Buchanan. Here, the suspicion of Officer Konkle about the stolen car informed all the actions that followed that evening, yet that suspicion was entirely subjective and unfounded. To reiterate, when Officer Konkle’s reasons for the initial detention are examined, they amount to the fact that it was midnight, and Mr. Frederick did not know the correct name of the registered owner. His assessment that cars are more frequently stolen at night was overly general and added little to his reason for the detentions. While Officer Konkle also relied on the fact that the car was being driven away from the location where the registered owner lived, there is no logic to this. Unless one is returning home, cars are always being driven in the other direction. This is not akin to a miscalculation about whether the police had sufficient grounds to arrest or only sufficient grounds to detain, as was the case in Buchanan. It is serious state-infringing conduct, conduct that risks interfering with the rights of any driver who may be stopped for a driving infraction in the evening and does not know the full name of the registered owner of the car.
[139] Finally, the seriousness of the unauthorized search of the car must be considered. There were no reasonable grounds to believe that there was marijuana in the car that was readily available to any person in the car. As stated, Officer Konkle instructed Officers Seo and Weatherill to search the car. Officer Konkle was unaware of the proper legal authority to allow the search. While his evidence on this issue was circuitous at best, Officer Konkle appeared to believe that he could search the car based on smell alone, although as he stated, he typically prefers to have something extra. Further, even though Officer Weatherill was acting on Officer Konkle’s instructions, he too appeared to believe that he could search the car on smell alone. His evidence also was that once he saw the roaches in the car, he was entitled to search. Officer Seo stated that he could search the car once he saw the burnt roaches, notwithstanding that he had no information as to how the roaches got in the car.
[140] It is also the case that even had the search been authorized, there is an issue as to the nature of the search. Officers Weatherill and Seo did not restrict their search to areas where marijuana would commonly be found, such as the glove box, the console or under the seats. They each searched behind a plastic panel on their respective side of the car. Their evidence that they each found the panel unusually loose, such that it came off by mere touch, but that there was no communication between them about this, appears to be too convenient and does not carry the ring of truth. This is especially the case given that there is a notation in the notes of Officer Weatherill, who searched the driver’s side, that reads “passenger center-left side floor panel very loose and unusual as well.” Officer Weatherill was unable to say how he received this information, and his notes were silent in that regard.
[141] This is not a case where the various breaches of the law can be attributed to an urgent need to preserve evidence or to neutralize a threat. Nor were the officers operating in the context of any legal ambiguity. While the CCA is relatively new legislation, the relevant provisions are comparable to those in the Liquor Licence Act, R.S.O. 1990, c. L.19, such as s. 32(5) which has been in existence since 1990. Moreover, the cumulative effect of all the breaches, including the s. 10 breaches, makes the police conduct even more concerning.
[142] In my view, the seriousness of the Charter-infringing state conduct falls at the high end of the spectrum and would favour exclusion of the firearm and drugs seized.
Impact on the Charter-protected interests of the applicants
[143] Both Mr. Frederick and Mr. Frederick-Dwyer were unlawfully detained and searched. Their freedom to go on their way, after an HTA infraction, was violated, despite their compliance throughout the investigation. The illegal search of the car, in particular, led directly to the evidence against the Applicants. While on these facts, the s. 10 violations had a less serious impact on both Mr. Frederick and Mr. Frederick-Dwyer, those breaches nonetheless deprived Mr. Frederick of knowing the reason for his arrest for a short period, and deprived Mr. Frederick-Dwyer of knowing the reason for his detention, and knowing of his rights to counsel.
[144] I find that the totality of the Charter violations had a substantial impact on the Charter-protected rights of Mr. Frederick and Mr. Frederick-Dwyer. The second Grant 2009 factor also favours exclusion of the evidence.
Society’s interest in adjudication on the merits
[145] There is no issue that the firearm and the drugs are reliable evidence and essential to the Crown’s case. The seriousness of the charges is also not in dispute. As stated in R. v. Wong, 2012 ONCA 767, [2012] O.J. No. 5250, at para. 11, “the courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fueled by this combination is now well recognized.” This Grant 2009 factor militates in favour of the inclusion of the real evidence seized.
[146] In undertaking the admissibility inquiry, the Crown appears to suggest that the standard by which the officers’ conduct should be measured must take their relative inexperience into account.
[147] At the time of this offence, Officer Konkle had been an OPP officer for just over three years. Officer Weatherill had been on the force for about 2-1/2 years, and Officer Seo was in his second year on the OPP. This was the first time that Officer Konkle had testified in court. This was the first time that Officers O'Connell and Seo had been involved in an investigation where a firearm was found. These officers were generally assigned to a traffic detachment; as the Crown noted, they were not officers from the Guns and Gang team.
[148] However, as stated in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44, “even where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.) , at paras. 24-25).”
[149] While I accept that all the officers involved that night were relatively inexperienced, especially with respect to serious offences, this is not an acceptable explanation for the numerous Charter violations. All officers are expected to have the necessary training and skills to carry out their duties in a Charter compliant manner, and the public must have confidence that this is the case: see R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579; R. v. Howe 2013 ONCJ 166, [2013] O.J. No 1482). With respect, given the number and nature of the breaches, I am not persuaded that the relative youth and inexperience of Officer Konkle and his platoon mates has an impact on the s. 24(2) analysis.
[150] This was a case of multiple Charter violations that began as soon as Mr. Frederick gave the name Uncle David to Officer Konkle and ended with the improper search of the car. The police used the HTA as a ruse to investigate a possible stolen vehicle; detained and searched both Mr. Frederick and Mr. Frederick-Dwyer illegally; ignored the immediacy of the s. 10 requirements; and ultimately conducted an illegal search of the car. It is the totality of the police conduct that must be considered in the s. 24(2) analysis.
[151] As stated in Grant 2009, at para. 68:
The phrase ‘bring the administration of justice into disrepute’ must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
[152] The balancing of the Grant 2009 factors is a challenging case-specific exercise. As stated in R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at para. 60, “…the exclusion of a firearm from evidence may be seen from one perspective as producing an unpalatable result. But a difficult result in one case is sometimes an acceptable price to pay for ensuring respect for Charter rights.”
[153] I am also mindful of the comments of La Forest J. in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 64:
We exercise discretion to exclude evidence obtained by unconstitutional searches from being used against an accused, even when it would clearly establish guilt, not to protect criminals but because the only really effective safeguard for the protection of the constitutional right we all share is not to allow use of evidence obtained in violation of this public right when doing so would bring the administration of justice into disrepute.
[154] In my view, the public confidence in the administration of justice would be brought into disrepute by the admission of the real evidence obtained following the series of serious Charter violations that occurred in this case.
[155] For these reasons, the loaded handgun, powder cocaine, crack cocaine and fentanyl found in the Malibu are excluded from evidence pursuant to s. 24(2) of the Charter.
[156] Finally, I wish to thank all counsel. They conducted this case in a professional and courteous manner, and their written material and oral submissions were thoughtful and of assistance to the Court.
Croll J.
Released: October 27, 2021
COURT FILE NO.: CR-21-90000038-0000
DATE: 20211027
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
- and -
TAREEK FREDERICK and
JAHVON FREDERICK-DWYER
Applicants
ruling on pre-trial motions
Croll J.
Released: October 27, 2021