COURT FILE NO.: CR-20-00000531-00
DATE: 2021 11 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Johnston for the Respondent
Respondent
- and -
PHILLIP HECTOR
Applicant/Accused
L. LeClair for the Applicant
HEARD: September 15, 16, 17, 20, 24 and October 4, 5, 6 and 7, 2021
REASONS FOR JUDGMENT
(CHARTER RULING AND TRIAL DECISION)
Dennison J.
Table of Contents
Introduction...................................................................................................... 2
Issue #1: Did the Police Observe the Applicant prior to Checking the Licence Plate.......................................................................................................................... 6
Officers’ Assignment that Day......................................................................... 6
First Area the Officers Attended....................................................................... 7
Moving to Dundas and Hurontario................................................................... 7
Observing the Mercedes................................................................................. 9
PC Crews’ Evidence.................................................................................... 9
PC Khan’s Evidence................................................................................... 12
The Applicant’s Evidence as to when the Police saw his Vehicle.................... 14
Racial Profiling............................................................................................... 17
General Credibility Comments...................................................................... 19
Did the Officers See the Applicant prior to Running the Licence Plate?..... 23
Issue #2: Did the Police Violate the Applicant’s ss. 9, 10(a), or 10(b) Rights?................................................................................................................27
Factual Findings............................................................................................ 27
Analysis........................................................................................................ 36
Issue #3: Was the Search of the Vehicle contrary to s. 8 of the Charter?... 42
Issue #4: Did the Police Violate the Applicant’s s.8 Charter Rights by Strip Searching him at the Station?......................................................................................... 47
Factual Findings............................................................................................ 47
Analysis........................................................................................................ 50
Issue #5: Should the Drugs be Excluded pursuant to s. 24(2) of the Charter? 53
Trial: Has the Crown Proven the Applicant’s Guilt Beyond a Reasonable Doubt? 55
Introduction
[1] The applicant is charged with possession of cocaine for the purpose of trafficking and possession of fentanyl.
[2] The applicant seeks to exclude the drugs that were seized from his vehicle pursuant to s. 24(2) of the Charter of Rights and Freedoms. The applicant alleges the police violated his ss. 7, 8, 9, 10(a), 10(b), and 15 Charter rights when they checked his licence plate and arrested him.
[3] The applicant was driving his Mercedes Benz in the area of Hurontario and King Street. He submits that Police Constable (PC) Crews, a white police officer, saw a Black man driving an expensive car and ran his licence plate. The applicant states that PC Crews and his partner, PC Khan, were parked at the Food Basics plaza when they saw the applicant.
[4] PC Crews and PC Khan deny seeing the driver of the vehicle prior to running the licence plate. They testified they were proactively policing the area of Hurontario Street and Dundas Street in Mississauga. They ran several licence plates that morning. Both officers testified they were driving on King Street and ran the licence plate of the vehicle in front of them. When the police ran the applicant’s licence plate, they learned there was an outstanding warrant from Toronto Police for the applicant’s arrest for assault with a weapon (two counts), possession of a weapon for a dangerous purpose, and uttering threats. The police stopped the vehicle and ultimately arrested the applicant.
[5] The applicant submits the police took him out of his vehicle without asking who he was and arrested him without telling him what the charges were. The police testified they advised the applicant promptly of the reasons for his arrest and read him his rights to counsel. The applicant submits the police delayed advising him of the nature of the charges for approximately six minutes and delayed providing him his rights to counsel for approximately nine, to nine and a half, minutes.
[6] PC Crews testified that when the police cruiser stopped in front of the applicant’s vehicle, he observed the applicant leaning to his side as if he was trying to hide something. After the police arrested the applicant on the Toronto warrant, PC Crews searched the driver’s seat area of the applicant’s vehicle. PC Crews located a baggy containing 12.06 grams of crack cocaine and another baggy containing 2.81 grams of fentanyl. Police arrested the applicant for two counts of possession for the purpose of trafficking. The applicant states he did not lean to his side prior to being arrested, but rather he had hidden the drugs when he first observed the officers at the Food Basics plaza.
[7] The applicant also submits his Charter rights were violated because he was strip searched at the station. Both officers testified they observed the applicant reaching into the waistband of his shorts after he was arrested. At the police station, PC Crews advised the Staff Sergeant of his observations and requested a strip search. The Staff Sergeant ordered the applicant be strip searched primarily for the applicant’s own safety, given the officers’ observations and the nature of the drugs seized.
[8] There are several issues to be decided on this Charter application:
Did the police see the applicant before they checked his licence plate? If they did not, the issue of racial profiling does not arise. If they did, the court must determine whether the police checked the licence plate because of a conscious or unconscious bias towards the applicant, who was a Black male driving an expensive car, contrary to ss. 7, 9, and 15 of the Charter.
Did the police violate the applicant’s ss. 9, 10(a), or s. 10(b) Charter rights when they stopped the vehicle and arrested the applicant?
Did the police violate the applicant’s s. 8 Charter rights in searching his vehicle?
Did the police violate the applicant’s s. 8 Charter rights by strip searching him at the police station?
If any of the applicant’s Charter rights were violated, should the drugs be excluded pursuant to s. 24(2) of the Charter?
[9] During the Charter application, the applicant re-elected to be tried before me in a judge alone trial, should a trial be necessary. As a result, the evidence of the officers applied to both the trial and the Charter application. The applicant’s evidence only applied to the Charter application.
[10] I will first address the issues in the Charter application.
Issue #1: Did the Police Observe the Applicant prior to Checking the Licence Plate?
[11] The credibility of PC Crews, PC Khan, and the applicant are crucial in determining if the police observed the applicant prior to checking his licence plate. It is, therefore, important to review their evidence in some detail.
Officers’ Assignment that Day
[12] To understand how the applicant’s licence plate came to be checked by police, it is necessary to understand PC Crews’ and PC Khan’s police assignment that day.
[13] On July 19, 2020, both officers were assigned to proactive policing. They did not generally respond to calls but rather went to areas where there are community complaints and high rates of crimes. They both testified they checked various licence plates of vehicles to see if the vehicles were stolen or if there was a suspended driver. If they saw an individual they knew, they would check to see if that person had an outstanding warrant. They were not working on a project or focused on a particular area or particular type of offence.
[14] PC Khan drove the police cruiser that day. PC Crews was the passenger and ran the various checks on the terminal.
First Area the Officers Attended
[15] PC Khan and PC Crews agreed they went to Studio 6 that morning. It is a community complaint zone. Studio 6 is known for human trafficking, drugs, and firearm related offences, as well as other criminal activity. The officers arrived at Studio 6 at 8:54 a.m. PC Khan agreed that they ran licence plate numbers in the area looking for stolen vehicles and wanted persons.
[16] PC Khan testified that nothing stood out about the events prior to dealing with the applicant, although he recalled being in the area of Studio 6. Prior to dealing with the applicant, the police ran seven licence plates based on the ICAT report. The ICAT is a mobile terminal that keeps track of what their police unit did on its shift. There were several lines missing on the initial ICAT report that was filed with the court. Later during the trial, the missing lines were provided.
Moving to Dundas and Hurontario
[17] The officers moved to the area of Dundas and Hurontario at approximately 9:07 a.m.
[18] PC Crews initially testified that he did not recall what they did for a 33-minute period from 9:40 a.m. to 10:13 a.m. However, once the missing part of the ICAT was shown to him, it refreshed his memory. The officers spoke to a person known to the police at approximately 9:48 a.m. This occurred at the northeast corner of Dundas and Confederation, at an art studio. Immediately thereafter, they went to the parkade at the northwest corner of Confederation. They drove around and walked the two stairwells in the parkade, as it is a high crime area. The parkade is five stories. PC Crews estimated this would have taken approximately 15 minutes.
[19] PC Khan also did not initially recall what they did in the 33 minutes prior to the incident with the applicant. He testified it could have been a washroom break, but nothing stood out in his mind. Once the missing lines from the ICAT were shown to PC Khan, he recalled that they stopped and had a conversation with an individual at the northeast corner of Dundas and Confederation. It was a brief interaction and he remained in the vehicle. He also recalled that they went to the parkade. He did not specifically remember if they patrolled the stairs.
[20] PC Crews testified that after leaving the parkade they drove east on Dundas, then south on Hurontario, and pulled into the laneway of the Food Basics plaza off Hurontario, near the Family Orchard Restaurant. PC Crews agreed that the Food Basics plaza was approximately three to four minutes away from the parkade.
[21] PC Khan did not recall how they drove to the Food Basics plaza. Neither officer mentioned the plaza in their notes.
Observing the Mercedes
PC Crews’ Evidence
[22] PC Crews testified they drove slowly through the Food Basics parking lot. They then turned right heading westbound on King Street. PC Crews did not recall if there were any cars ahead of them prior to turning onto King.
[23] The first car PC Crews saw after they turned onto King Street was the black Mercedes. PC Crews testified they were behind the vehicle when he ran the plates. He could not see into the vehicle. He did not know if there were any passengers and could not tell if the driver was male or female. He testified that the rear window was tinted. PC Crews ran plate CHCH 525 at 10:12:13 a.m.
[24] When PC Crews ran the licence plate, he learned the registered owner of the vehicle was Philip Hector, who was the subject of a warrant in the first instance issued by Toronto Police Service for assault with a weapon, weapons dangerous, and uttering threats.
[25] PC Crews agreed in cross-examination that he did not know the date of the warrant, though that information was available to him. To him, it did not matter when the warrant was issued.
[26] PC Crews explained if no warrants were connected to the registered owner of the vehicle, they would not have stopped the vehicle. PC Crews ran other vehicle checks that day. Nothing came back on any of the other vehicles, so they did not stop those vehicles. The warrant for the registered owner gave PC Crews the authority to arrest the driver if the driver was Philip Hector.
[27] PC Crews did not have a picture of Philip Hector and did not know if he was in fact operating the vehicle. He agreed that he was biased in assuming that Philip was a male because of the name, and that the person could have been a female.
[28] After learning of the warrant, PC Crews advised dispatch that they were doing a “rolling marker” which meant they were going to stop the vehicle for more than a routine traffic stop. This marker ensures that police know where they are located. Calling a rolling marker is like requesting back up.
[29] PC Crews denied the suggestion that he was sitting in the police cruiser facing Hurontario near the exit of the Food Basics plaza and could see the Mercedes at the intersection of Hurontario and King. PC Crews explained that the intersection was a couple of hundred meters away and he would not have been able to observe a driver from that distance.
[30] PC Crews also denied seeing the Mercedes before they turned onto King or telling PC Khan to follow the Mercedes. PC Crews testified that, as they exited the plaza, he was focused on the dumpsters on the south side of King because it is a high crime area. He also denied the suggestion that he used the front licence plate of the vehicle to run the check. PC Crews explained that it would have been impossible to run the plates in this scenario as he would have been perpendicular to the car.
[31] In cross-examination, PC Crews was shown several photos of the black Mercedes. PC Crews did not recall the cleanliness of the vehicle. He agreed that the front and side windows were not tinted and that you could see into the vehicle. PC Crews was shown a photo of the Mercedes. It was suggested to him that the back window of the Mercedes was not tinted and that you could see through the visor that went up and down in the back window. PC Crews denied that he could see through the visor. He testified the photo showing the rear of the vehicle was a great picture because the lighting in the photo was similar to the lighting on that day and you could not see into the vehicle because of the glare.
[32] PC Crews denied running the licence plate because the driver was a Black male. He testified that a make and model of a vehicle, or race or age of a person, has nothing to do with why he runs plates. He testified that if you looked at the various plates he ran, one would see that there are many different registered owners. He explained he proactively ran the plate because the vehicle was directly in front of him.
PC Khan’s Evidence
[33] PC Khan testified they drove through the Food Basics plaza parking lot. He did not recall seeing the Mercedes drive past them when they were in the plaza.
[34] PC Khan disagreed that he was in the parking lot for a number of minutes. His job was to be mobile. While he denied seeing the vehicle pass in front of him, he agreed that it must have passed the parking lot to be on King. PC Khan disagreed with the suggestion that there was a vehicle in front of him when he pulled out of the plaza.
[35] PC Khan testified he did not look at the dumpster near Fresco. He did not see why the dumpsters would be an area of interest.
[36] PC Khan testified he turned west onto King Street. He had pulled out onto King and was approaching Confederation near the intersection when he was able to see the plate on the vehicle ahead of him. He stated the vehicle was 100 metres or less in front of them. The vehicle slowed down to turn right. He did not recall if the light at the intersection was red or green. He did not recall seeing the vehicle drive past him on King. He did not recall asking his partner to run the plate.
[37] PC Khan testified that, as they were moving onto Confederation, PC Crews advised him that the registered owner of the vehicle was wanted on a warrant in Toronto. They did not really have a discussion, but he knew they were going to do a traffic stop. PC Khan did not know how many people were in the vehicle or if they were male or female.
[38] PC Crews and PC Khan agreed that there were no concerns about the manner in which the Mercedes was driving.
[39] PC Khan disagreed that he saw the Black male driving the Mercedes and then decided to follow the vehicle. When the suggestion was put to PC Khan again, he explained that he has friends who drive expensive vehicles, so a Mercedes does not mean anything to him. He explained that his life experiences make him impartial; as a person of colour, he was subject to police stops.
The Applicant’s Evidence as to when the Police saw his Vehicle
[40] The applicant was 34 years old at the time of his arrest. The applicant testified that on July 19, 2018, he had crack cocaine and fentanyl in the driver’s side door of his Mercedes. He planned to drop the drugs off at a location prior to this incident, but no one was home.
[41] The applicant drove a black Mercedes CLS 500 with black rims. He purchased the vehicle for a very good price because it had been in an accident. He did the body work on the car and paid for the electrical work to be done. He stated that the vehicle was worth $100,000.
[42] The applicant testified he was heading north on Hurontario on his way to a mechanic shop to buy a light for his Prius. He was about to turn left off Hurontario Street onto King Street but stopped at the light when he noticed a police cruiser parked in the Food Basics parking lot facing Hurontario. The police cruiser was 400 feet from the intersection. It was parked northwest of the mall exit onto King Street.
[43] The applicant stopped quickly at the intersection because he thought the police were doing a speed check at the intersection. He stopped before the intersection, but it was a jerky motion.
[44] While he was stopped at the intersection, the applicant observed two other vehicles in the parking lot approaching the mall exit onto King Street. He recalled one of the vehicles was a Toyota. One of the vehicles turned left out of the mall and the other turned right onto King Street.
[45] When asked if he could see into the police cruiser, the applicant testified he could see silhouettes. He could not tell if the officers were Caucasian or Black because of the two vehicles passing in front of the police cruiser. In cross-examination, he testified he thought the officers could see him because he was the only one on the road. There were no cars parked in the parking lot and the police had a better vantage point because they were higher up than he was.
[46] The applicant testified he observed the police for 10 seconds while he was stopped at the intersection and decided to hide his drugs. He lifted up the driver’s seat and tucked the drugs under as far as he could and then put the seat down. He then sanitized his hands. He put the rear visor on so that no one could look into the back of the vehicle. He then took his weed out of the front console and put it in the back console. He opened the glove compartment and grabbed his cologne and sprayed it. He continued to watch the police and waited for the light to turn green. He hid the drugs because if he was pulled over, he did not want the drugs to be in plain sight.
[47] In cross-examination, the applicant agreed that the visor blocks the view from behind, aside from three to five inches on either side of the back window. He also stated that a person behind the car could tell if there was a passenger if the passenger moves to the right or left.
[48] The applicant was asked in cross-examination how far back he was when he stopped his vehicle, given that he would have had to see the police cruiser, apply his brakes, and bring his car to a complete stop. The applicant testified that from the time he saw the police car to the time he stopped, his vehicle would have moved forward a few inches, not a few feet.
[49] The applicant testified that after he made the turn onto King Street, he could see there was a “Caucasian and Brown man” in the police cruiser.
[50] When the applicant drove past them, he did not stare them down but did look to see if they indicated which way they were turning. When he looked up, he noticed the Caucasian officer say something and a few seconds later the officers were behind him. The applicant testified he did not know what the officer said but he felt like they were coming after him. He explained that they left the plaza “with an aggression” that said, “Don’t lose him.” He knew they were following him. They “raced out” of the parking lot.
Racial Profiling
[51] Courts have an obligation to condemn any police practices that are based on racial profiling. Racial profiling has two components: (i) an attitudinal component, and (ii) a causation component: R. v. Dudhi, 2019 ONCA 665, 147 O.R. (3d) 546, at para. 54.
[52] The attitudinal component suggested in this case is that the police engaged in race or racial stereotypes that a young Black male, driving a shiny expensive car in a high crime area, must be involved in criminal activity. A Black male driving an expensive car is “a well-known risk factor for racial profiling”: Dudhi, at para. 79; R. v. Khan (2004), 2004 CanLII 66305 (ON SC), 244 D.L.R. (4th) 443 (Ont. S.C.), at para. 68; R. v. Smith, 2015 ONSC 3548, 338 C.R.R. (2d) 1, at paras. 182-183.
[53] The causational component requires that race-based thinking, either consciously or unconsciously, play a role in the police’s decision to run the applicant’s licence plate and stop his vehicle: Dudhi, at para. 55.
[54] Where race or racial stereotypes are used to any degree to select the suspect, it is racial profiling. It does not matter if police had another justifiable basis to detain the individual: Dudhi, at para. 59, referring to Peart v. Peel Regional Police Services Board (2006), 2006 CanLII 37566 (ON CA), 43 C.R. (6th) 175 (Ont. C.A.), at para. 91.
[55] Racial profiling is very rarely proven by direct evidence. Officers are rarely willing to admit that their decision to stop an individual was based on race. Racial profiling will be proven by inferences drawn from the circumstantial evidence. This court must determine whether an inference of racial profiling can be drawn from all of the circumstances surrounding the stop of the applicant. There is no requirement that the court find that the police officer is lying to draw an inference of racial profiling: R. v. Sitladeen, 2021 ONCA 303, 155 O.R. (3d) 241, at paras. 43, 48-49, and 54.
[56] It is against this backdrop that I must consider the police officers’ evidence. As noted by Doherty J.A. in Peart, at para. 147, a sensitive appreciation of the relevant context in which racial profiling claims are made must be considered to protect “against the failure of meritorious claims as a result of the allocation of the burden of proof.”
[57] Counsel agree that, after considering all the circumstances, if I find the officers did not observe the applicant prior to running the licence plate, there cannot be a finding of racial profiling. If, however, I find that the officers lied or were mistaken about having observed the applicant prior to deciding to run the licence plate, the court will have to determine if part of the reason the officers ran the licence plate, either consciously or unconsciously, was because they observed a Black male driving an expensive car and believed he would likely be involved in criminal activity.
General Credibility Comments
[58] I would like to make some general comments about assessing the evidence in this case before evaluating whether the police officers saw the applicant prior to running the applicant’s licence plate.
[59] In considering the credibility and reliability of the police officers and the applicant, it is well established that I may accept some, none, or all of a witness’s evidence.
[60] There are many factors that the trier of fact may consider in assessing the credibility and reliability of a witness. For example:
a) internal inconsistencies in a witness’s evidence
b) previous inconsistent statements
c) inconsistencies with other witnesses and other exhibits at trial
d) a witness’s motivations or lack of motivation
e) gaps in a witness’s memory
f) the reasonableness of the witness’s evidence.
[61] I am also cognizant that a police officer’s evidence is to be treated and assessed in the same manner as any other witness: R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at p. 841.
[62] Counsel for the applicant suggested that because the officers made their notes in the same room after the events, although they may not have intended to collude, collusion occurred. The officers agreed they discussed times and locations with each other when they made their notes.
[63] I do not find that the officers colluded in their notetaking or in their evidence. While the officers’ evidence was largely consistent with one another, there were inconsistencies and each officer testified about specific details that the other officer did not recall. For example, both officers gave different evidence as to how the police cruiser was parked when the police stopped the applicant’s vehicle. In addition, PC Crews recalled more details respecting how the officers drove through the plaza and the parkade than PC Khan did. Both officers also seemed to have slightly different observations about where they first saw the Mercedes. I generally found both officers to be credible and reliable in giving their evidence.
[64] The applicant has a criminal record. This record, however, cannot be used to determine that the applicant is generally a bad person and therefore untrustworthy, or that he is the type of person who would commit drug offences. The only relevant conviction on the applicant’s criminal record is his conviction for impersonation because it relates to a crime of dishonesty and is, therefore, relevant to his credibility. I give this conviction very little weight in my assessment of the applicant’s credibility because the offence was from 2008 and is, therefore, quite dated.
[65] In considering the overall credibility of the applicant, I have also considered that the applicant admitted at trial that he lied to police when he was arrested. He told the police he was a drug user. He explained that the reason he lied was that he hoped to only be charged with simple possession of the drugs.
[66] The applicant submits that PC Khan’s evidence is not reliable given his lack of memory. Counsel for the applicant points to the fact that PC Khan could not recall what he was doing in the 33 minutes prior to seeing the applicant’s car, nor could he recall the route he took to the Food Basics plaza.
[67] The same could be said for PC Crews evidence relating to the 33 minutes prior to running the licence plate. At the time the officers gave their evidence about the 33 minutes, the ICAT was missing entries at the bottom and top of the pages.
[68] I do not find that the failure of the officers to recall what they did in the 33 minutes prior to this incident undermines the reliability or credibility of their evidence. First, what they did prior to this incident was not relevant to the arrest of the applicant. As they both testified, nothing stood out.
[69] PC Khan had a much stronger recollection as to what occurred after he observed the applicant’s vehicle on King Street. Similarly, PC Crews had a clear recollection as to where the officers were just prior to seeing the applicant. This makes sense because it connects to the applicant’s arrest. Interestingly, when the full ICAT was shown to both PC Crews and PC Khan, it refreshed their memories as to what they did in the 33 minutes prior to the incident. Each recalled slightly different details that stuck out to them, but they were consistent in their recollections that they spoke to an individual and attended the parkade at the corner of Dundas and Confederation.
Did the Officers See the Applicant prior to Running the Licence Plate?
[70] I am satisfied on a balance of probabilities that PC Crews and PC Khan did not observe the driver of the Mercedes prior to running its licence plate. Therefore, no inference can be drawn that PC Crews ran the licence plate because he observed a young Black male driving a shiny black Mercedes. The applicant’s submissions regarding racial profiling must fail. I have come to this conclusion for the following reasons.
[71] First, I do not accept the applicant’s evidence that the police cruiser was parked in the Food Basics parking lot facing Hurontario.
[72] I prefer the evidence of PC Crews as to where the vehicle was in the plaza. PC Crews testified the police drove through the plaza. I find his evidence to be both credible and reliable. He testified the officers entered off Hurontario and drove through the Food Basics plaza and exited onto King Street. He testified they drove slowly through the plaza, watching out for pedestrians. PC Crews denied parking the car anywhere in the plaza. His evidence was unshaken on this point.
[73] While PC Khan had no recollection of the route they took to the plaza, he testified he drove through the plaza. He denied stopping. He explained that his job that day was to be mobile.
[74] Second, as a matter of common sense, the location where the applicant states the police were parked would not be a good location to observe the intersection at Hurontario and King Street for two reasons. First, there is a laneway in front of where the officers allegedly stopped. The applicant testified he observed two vehicles drive along the laneway to the exit and they blocked his view of the police cruiser. Similarly, the view from the police cruiser would have been blocked, limiting the officers’ ability to make observations. Second, it does not make sense that the officers would choose to park in an area where they could not readily exit. For example, if the officers observed a vehicle committing an offence and there were two vehicles in the laneway ahead of them, the police would have to wait for those vehicles to proceed before pursuing the vehicle they observed.
[75] Third, I reject the applicant’s evidence that the officer could see him when he was at the intersection of Hurontario and King. The distance is approximately 350 feet. The applicant admitted that he could only see silhouettes in the police cruiser, but still believed the police could see him. It is not reasonable that the police would be able to identify the applicant as a Black driver from that distance.
[76] Fourth, I reject the applicant’s evidence that when he drove past the police cruiser, he observed PC Crews look at him and say something. While the applicant testified, he could not tell what was said, he also testified he knew from the way the officers “raced out” of the plaza that they were after him. If this was indeed the case, it does not make sense that it took the officers until the intersection of Dundas and Confederation to stop the applicant’s vehicle. One would have thought the police would have “raced” to catch up to the applicant on King Street and stopped the vehicle much earlier than they did.
[77] Again, I prefer the evidence of PC Crews who testified that they drove through the parking lot, and he was focused on the dumpsters on the south side of King Street looking for criminal activity. That was his role that day. I recognize that PC Khan did not view the dumpsters as having significance to criminal offences, but that does not undermine PC Crews’ view that, in his experience, offences took place in that area.
[78] I accept PC Crew’s and PC Khan’s evidence that they drove along King Street and the first vehicle they came across was the applicant’s vehicle. This account is consistent with the applicant’s evidence that there was one car ahead of him. As PC Crews’ role that day was to proactively police, he ran the licence plate. There was nothing wrong in that conduct. As PC Crews explained, if nothing came back on the vehicle, the vehicle would not have been stopped.
[79] Fifth, I find that the officers could not see through the back of the vehicle to see how many people were in the vehicle, whether they were male or female, or their race. On the applicant’s evidence, he had the visor up which obstructed the view into the car. In addition, the car was travelling westbound at approximately 10 a.m. when the sun was in the east. PC Crews explained that the photograph he was shown was similar to the lighting at the time he observed the vehicle. In that photograph, the sun hits the back of the Mercedes and creates a significant glare.
[80] In accepting the credibility and reliability of the officers’ evidence that they did not see the car until they were on King Street and did not see that the applicant was a Black male, I have also considered their other activities that day. They were engaged in community policing. They went to various high crime neighbourhoods. That day, PC Crews checked several licence plates, both before and after arresting the applicant, and spoke to various individuals. There is no evidence that these police officers targeted expensive cars when running licence plates. There is also no evidence that the registered owners of the selected licence plates were of any particular racial or ethnic background from which an inference of racial profiling could more readily be drawn.
[81] Given my finding that the officers did not observe the applicant prior to running his licence plate, there is no basis to infer that the police’s investigation into the applicant was based on racial profiling.
Issue #2: Did the Police Violate the Applicant’s ss. 9, 10(a), or 10(b) Rights?
[82] The next issue to determine is whether the police violated the applicant’s ss. 9, 10(a), or 10(b) Charter rights when the officers arrested the applicant. Again, it is necessary to assess the reliability and credibility of the evidence of the officers and the applicant regarding what occurred.
Factual Findings
[83] There is no dispute that the applicant’s vehicle turned right onto Confederation Parkway. The vehicle then went into the left-hand turn lane at Dundas Street.
[84] As they approached Dundas Street, PC Khan saw an opportunity to get ahead of the applicant’s vehicle. PC Khan testified he passed the applicant’s vehicle on the right and pulled in front of the vehicle to make sure it could not flee the scene. PC Khan activated his lights to make sure the vehicle stopped.
[85] PC Crews and the applicant testified the police cruiser passed the applicant’s vehicle on the left. PC Crews testified the police cruiser stopped in front of the applicant’s vehicle, whereas the applicant said the police cruiser stopped beside his vehicle.
[86] I prefer the evidence of PC Crews that the police cruiser passed the applicant’s vehicle on the left. PC Khan admitted that he could be wrong about which side he passed the applicant’s vehicle on.
[87] I also prefer PC Crew’s evidence that the police cruiser stopped in front of the applicant’s vehicle. This is consistent with PC Khan’s evidence that he wanted to stop in front of the applicant’s vehicle so the applicant could not flee the scene. It does not make sense that the police would stop beside the applicant’s vehicle when the objective was to ensure the vehicle did not take off.
[88] PC Crews explained that when the police cruiser stopped, he stared into the front windshield of the applicant’s car. He observed a younger Black male with sunglasses and the side of his head shaved. He did not observe any passengers. He observed the male leaning forward under the seat.
[89] The applicant denied leaning forward to hide the drugs. He testified he had already hidden the drugs back at the Hurontario and King Street intersection. While I am suspicious of the applicant’s evidence on this point, I need not determine when he hid the drugs. Whether the applicant was hiding the drugs for the first time or trying to ensure the drugs stayed hidden, I accept PC Crew’s evidence that he observed the applicant leaning forward and that it looked like the applicant was trying to hide something. PC Crews’ evidence was not shaken on this point. Moreover, PC Crews’ belief, rightly or wrongly, was that he could have searched the applicant’s driver’s seat regardless of whether he observed the applicant leaning forward because of the warrant. In PC Crews' view, the relevance of the evidence was therefore limited.
[90] I reject the applicant’s evidence that PC Crews said nothing to him, but rather immediately opened the car door, grabbed his arm, and removed him from the car. Had that occurred, I do not think it likely the arrest would have proceeded in the calm matter described by both the officers and the applicant.
[91] I accept PC Crews’ evidence that when he approached the applicant’s vehicle, and knowing the registered owner’s name, he asked “Philip?” in an inquisitive voice. The applicant responded, “Yeah.” PC Crews testified that if the driver had not been Philip, the officers would have let the driver go on his way.
[92] I do not find that PC Crews’ initial failure to mention that the applicant’s window was down undermines the reliability or credibility of his evidence. I accept PC Crews’ explanation that, upon looking at his notes, his memory was refreshed that the applicant rolled his window down all the way before PC Crews inquired “Philip?” He explained that he forgot to mention the window was down. Asking the question “Philip?” in an inquisitive voice was more important to him because it formed the grounds for his arrest. He also testified he was certain that he opened the applicant’s vehicle door.
[93] PC Crews’ evidence about the conversation is also corroborated by parts of PC Khan’s evidence, as well as portions of the applicant’s evidence that I accept.
[94] PC Khan testified he was right behind PC Crews and remembered hearing PC Crews say “Philip?” PC Khan could not recall the exact words that were said, but he recalled the applicant responding to the name. PC Crews advised the applicant of the warrant and asked the applicant to get out of the car. PC Khan believed the applicant’s window was down and the applicant was in the car when this conversation took place. He did not recall the applicant asking why he was under arrest or PC Crews ignoring the applicant. PC Khan recalled the interaction being very quick.
[95] The applicant testified his window was rolled down and PC Khan came out of the police cruiser and made his way to the back passenger side of the cruiser. PC Khan then noticed he was in oncoming traffic and returned to the police cruiser to reverse it and park behind the applicant’s vehicle. The applicant agreed that PC Khan was approximately two feet away when PC Crews was speaking to the applicant. At this distance, PC Khan would have been able to overhear the conversation. I do not accept that PC Khan left the scene to move the car. There was no need because the police cruiser was in front of the applicant’s vehicle.
[96] Once PC Crews identified the applicant as Philip Hector, PC Crews testified he had reasonable grounds to arrest the driver. He told the applicant to step out of the car. PC Crews did not tell the applicant why he wanted him to step out of the car. I accept his evidence that it is his practice to advise a person they are under arrest once they are outside the vehicle because, in his experience, people will often try to flee and will even ram the police cruiser otherwise.
[97] I find that PC Crews told the applicant he was under arrest on the strength of the warrant. PC Crews did not give the applicant a detailed list of the charges. PC Crews agreed that the applicant asked why he was under arrest and PC Crews told him, “I will tell you later,” by which PC Crews meant once they were back in the police cruiser.
[98] After PC Crews arrested the applicant, PC Crews handcuffed him to the rear. The applicant did not struggle or resist and walked on his own accord to the cruiser. PC Crews had physical control of the applicant’s arm as they were in live traffic. PC Crews did not recall if PC Khan assisted in escorting the applicant to the police cruiser. I accept PC Khan’s evidence that he assisted in escorting the applicant to the police cruiser because he was present when the arrest occurred, and the arrest occurred quickly. PC Crews conducted a brief pat down search before the applicant was placed in the rear of the police cruiser.
[99] The applicant testified that PC Crews handcuffed him, took him to the police cruiser, and conducted a pat down search. PC Crews flipped his pockets out and held him by his bicep. PC Crews pulled out the waistband of the applicant’s shorts and ran his hand along one side of the waistband. He then did the other side. PC Crews shook the applicant’s shorts and at that point the applicant’s shorts were around his buttocks. This necessitated the applicant pulling his pants back up. PC Crews also lifted the applicant’s shirt halfway up to see if he had any weapons. The applicant believed the pat down search took three minutes. The applicant testified that, at this point, he had still not been told why he was under arrest or given his rights to counsel.
[100] PC Crews explained that the arrest was a dynamic situation; a gap in traffic gave the opportunity to stop the car. He believed the whole arrest took less than a minute. PC Khan also testified that it would have been about a minute to secure the applicant and bring him back to the vehicle.
[101] I reject the applicant’s evidence that PC Khan, once in the police cruiser, did not advise the applicant of the charges on the warrant immediately. The applicant submits he was not advised of the charges for approximately six minutes, and it took a further three minutes until his rights to counsel were read to him.
[102] Even accepting that the applicant’s time may be slightly off because he did not have a watch, the applicant’s evidence on these points is neither reliable nor credible for the following reasons.
[103] First, the applicant testified he and PC Khan sat in the police cruiser saying nothing while PC Crews returned to the Mercedes. PC Crews returned with the applicant’s wallet, put it on the hood of the cruiser, told PC Khan to come outside, and showed him the applicant’s driver’s licence. Given that the applicant’s own evidence was that he had earlier asked why he was under arrest, it does not make any sense that now he was content to sit in the cruiser and say nothing.
[104] Second, the applicant’s evidence as to when he was told about the warrant is inconsistent. In examination in chief, the applicant testified that when he asked PC Crews why he was under arrest, PC Crews said there was a warrant and that he would tell him more in a minute.
[105] In cross-examination, the applicant agreed that this interaction with PC Crews happened as soon as he stepped out of the car. Later in cross-examination, the applicant denied that PC Crews told him that he was wanted on a warrant. He stated it was PC Khan who told him that he was under arrest for the warrant. In re-examination, the applicant retracted and said the warrant may have been mentioned when he was being pulled out of the car.
[106] Third, the timeline offered by the applicant is also inconsistent with the officers’ evidence that I do accept and the ICAT information.
[107] Based on the ICAT, less than three minutes elapsed from the time the officers indicated they were going to stop the vehicle until the time the tow truck was called. PC Crews testified that, at 10:13:32 a.m., he gave a rolling marker. This indicated that the officers were engaged in more than a traffic stop so that other officers would know where they were. PC Crews agreed that he called for a contract tow at 10:16:08 a.m. PC Crews testified that when he called for a contract tow, the applicant was in custody in the police cruiser and the search had been completed. The encounter was over in less than three minutes.
[108] I accept PC Khan’s evidence that once the applicant was placed in the back of the police cruiser, PC Khan explained that the warrant was for charges of assault with a weapon (two counts), weapons dangerous, and uttering threats. PC Khan then read the applicant his rights to counsel. The applicant provided responses to each of the questions asked and indicated that he understood his rights. In response to his right to retain counsel, the applicant said “yeah.” In response to his right to call a lawyer, the answer was “yes.”
[109] PC Crews testified he returned to the applicant’s vehicle and searched the area where he observed the applicant leaning forward. There is no dispute that PC Crews located 12.06 grams of cocaine and 2.81 grams of fentanyl under the driver’s seat.
[110] I accept PC Crews’ evidence that he stopped his search and returned to the cruiser to advise PC Khan of what he had found, so that PC Khan could advise the applicant of the additional charges of possession for the purpose of trafficking (two counts) given the quantity of the substances found.
[111] I also accept PC Khan’s evidence that, given the applicant’s change in jeopardy, he advised the applicant that he was under arrest for these new drug charges as well as the original charges in the warrant. PC Khan asked the same questions as before, but this time the applicant responded, “Yeah, I am a user.” The officer then reread the applicant’s rights to counsel. Now when asked if he wished to call a lawyer, the applicant stated he had a lawyer he had used before. The applicant continued to tell the officers that the drugs were for his personal use. The applicant admitted he said this to the officers in the hopes that they would only charge him with simple possession.
[112] PC Crews testified that after advising PC Khan about the drugs, he returned to the applicant’s vehicle again. He located the applicant’s wallet, two cell phones and $160.
[113] The officers also confirmed the validity of the Toronto warrant before leaving for the police station.
Analysis
[114] Not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 3.
[115] A detention arises where the police have suspended a person’s liberty interest through “a significant physical or psychological restraint”: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44. Psychological detention can arise where an individual is legally required to comply with police direction or where “the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand”: Grant, at paras. 30-31; Suberu, at para. 22.
[116] I am satisfied that the police detained the applicant once the police officers stopped their vehicle in front of the applicant’s vehicle with its flashing lights on. A person would reasonably conclude that they were not free to go in those circumstances and had to comply with police direction.
[117] Section 216(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, provides that the police may require a driver of a motor vehicle to stop the vehicle in their lawful execution of their duties. The existence of police concerns other than highway safety does not taint an otherwise valid traffic stop: Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 43 O.R. (3d) 223 (Ont. C.A.), at p. 236 at para. 31. This is not a case where the police observed the applicant violate any highway traffic provisions. Police wanted to stop the vehicle to confirm the identity of the driver so that they could execute a warrant for the driver’s arrest. They, therefore, cannot rely on the Highway Traffic Act as a basis to conduct the stop: R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 68.
[118] Police may, however, detain an individual for an investigative detention under the common law where the detention is viewed as reasonably necessary on a view of the totality of the circumstances. The officer must have a reasonable suspicion that the particular individual is implicated in the criminal activity that is under investigation: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 34, referring to R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182 (C.A.), at pp. 203-204.
[119] The common law, or Waterfield test, imposes a two-step process. First, the court must determine if the police conduct falls within the general scope of any duty imposed upon an officer. If this threshold is satisfied, the second step requires a determination of whether the conduct involved an unjustifiable use of powers associated with that duty. This stage balances the interests of the police duties and the liberty interest at stake: Mann, at para. 24, referring to R. v. Waterfield, [1964] 1 Q.B. 164 (C.A.), at pp. 660-661.
[120] The applicant was not arbitrarily detained. It falls within the police’s general duties to apprehend persons that are wanted for criminal offences, particularly where there is a warrant in existence for that person’s arrest: Gonzales, at para. 73.
[121] Stopping the applicant to determine his identity was necessary for the police to perform their duties. There was a warrant for the arrest of the registered owner of the Mercedes for violent offences. The police had a reasonable suspicion to believe that the person operating the Mercedes was the registered owner and that, therefore, the person driving the car was the person wanted on the warrant.
[122] The conduct of the stop was also reasonable. This was not a routine traffic stop. It was reasonable for the police to pull in front of the applicant’s vehicle to ensure that he did not flee the scene. The impact on the applicant’s liberty was limited. The stop was of minimal duration. Once the applicant confirmed his identity by answering PC Crews’ inquiry of “Phillip?”, the police had reasonable and probable grounds to arrest him on the strength of the warrant. The applicant’s s. 9 Charter rights were not violated.
[123] In contrast, I do find that the applicant’s s. 10(a) Charter rights were violated from the time he stepped out of his vehicle and was told of the warrant, until the time the warrant was explained to him by PC Khan in the back of the police cruiser.
[124] I accept that PC Crews promptly told the applicant that he was arrested on the strength of the warrant after he exited the vehicle. In the circumstances of this case, I do not find the Charter required him to do so prior to asking the applicant to step out of the vehicle. There was a warrant for the arrest of the applicant for violent offences. It made sense, after confirming the applicant’s identity to ask him to step out of the vehicle before advising him of the charges to ensure that the applicant did not try to flee the scene.
[125] I do not, however, find that it is sufficient for the purpose of s. 10(a) of the Charter to advise a person that they are under arrest on the strength of a warrant. The purpose of s. 10(a) is to ensure that the accused understands the extent of his or her jeopardy so that they can make an informed choice whether to exercise their right to counsel. Advising an accused person that there is a warrant for their arrest does not accomplish this purpose, particularly where it is likely the accused is not even aware of the warrant. The officer was obligated to advise the applicant of the nature of the charges, so that the applicant understood the charges related to assault with a weapon (two counts), weapons dangerous, and uttering threats.
[126] I understand PC Crews’ rationale for not going into detail about the charges. He wanted to get both himself and the applicant to a safe place; however, stating that you are under arrest on the strength of a warrant, as opposed to saying there is a warrant for your arrest for assaults with a weapon, weapons dangerous, and uttering threats, would not have taken any greater length of time. Had that language been used, the applicant would have meaningfully understood the nature of the charges against him.
[127] I find that PC Khan advised the applicant of the nature of the charges in the warrant once the applicant was placed into the police cruiser, after he was arrested and searched. I accept both officers’ evidence that the arrest took place very quickly. Based on the officers’ evidence, which was confirmed by the ICAT, the delay in explaining the charges and the violation of the applicant’s s. 10(a) rights was, at best, a couple of minutes.
[128] I do not find the police violated the applicant’s s. 10(b) Charter rights. I find that PC Khan advised the applicant of his right to counsel without delay. As I have already explained, I accept PC Khan’s evidence that he advised the applicant of the Toronto charges and read the applicant his rights to counsel immediately after the applicant was searched and placed in the rear of the police cruiser. Although explaining the warrant would be brief and not risk the safety of the applicant or the officers, the lengthier discussion of s. 10(b) rights and obtaining the necessary answers to the questions would be more safely conducted in the cruiser, given that they were located near the busy intersection of Hurontario (Highway 10) and Dundas Street.
[129] I also find that the police advised the applicant of the drug charges promptly and provided him his rights to counsel without delay. PC Crews immediately returned to the police cruiser to advise PC Khan that he found suspected drugs. PC Khan advised the applicant of the additional charges, as well as the Toronto charges and his rights to counsel again. There was no s. 10(b) Charter breach.
Issue #3: Was the Search of the Vehicle contrary to s. 8 of the Charter?
[130] There is no dispute that a warrantless search is presumptively unreasonable. It is, therefore, the Crown’s burden to demonstrate that the search was authorized and carried out in a reasonable manner.
[131] The Crown justifies the search of the applicant’s vehicle as a lawful search incident to arrest.
[132] For a search incident to arrest to be lawful, the arrest itself must be lawful: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 13. There is no real dispute that the arrest was lawful in this case. There was a warrant for the applicant’s arrest.
[133] As a general rule, police may search arrested individuals and their immediate surroundings to: (i) Discover any object that may be a threat to the safety of the police, the accused, or the public; (ii) prevent the destruction of evidence; or (iii) discover evidence to use against the accused for the crimes for which he or she was arrested: Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, at pp. 180-182, and 186; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at paras. 35, 158, and 165; Caslake, at paras. 17-19 and 22-25; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 23-24, 75, and 84; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 14.
[134] The standard for a search incident to arrest is not based on reasonable and probable grounds, but there must be some reasonable basis for the search. As explained in Caslake, at para. 20: “The police would be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether the person might be armed.” While there is considerable leeway during an arrest, there still must be a “valid objective” served by the search. The officer must reasonably believe that the purpose of the search will be served by the search: Caslake, at para. 20.
[135] The police must have one or more of the valid purposes listed above in mind when the search is conducted: R. v. Shankar, 2007 ONCA 280, 153 C.R.R. (2d) 298, at para. 12.
[136] When dealing with the search of vehicles, the right to search a vehicle incident to arrest, and the scope of that search, will depend on a number of factors, including “the basis for the arrest, the location of the motor vehicle in relation to the place of the arrest, and other relevant circumstances”: Caslake, at para. 23.
[137] I am satisfied that the search of the area where the applicant was seated was incidental to the applicant’s arrest.
[138] PC Crews outlined two bases for the search of the immediate area where he searched: (i) To discover whether there were weapons or drugs given the applicant’s actions; and (ii) to locate the applicant’s identification to confirm his identity for the warrant.
[139] I find that PC Crews was entitled to search the immediate area where the applicant was located to gather further evidence with respect to the applicant’s identity and to search the immediate location to look for weapons, for the following reasons.
[140] First, police conducted a pat down search of the applicant and did not discover any identification on him. Police wanted to confirm the identity of the applicant for the warrant. It is reasonable to suspect that the applicant would have had some identification around his person in the vehicle, given that drivers are required to have their driver’s licence with them when driving.
[141] Second, PC Crews had a reasonable basis to believe the applicant was hiding something illegal. PC Crews believed the applicant was hiding either weapons or drugs because he observed the applicant lean over his seat as if to hide something. PC Crews also explained that, during the arrest of the applicant, he was only concerned for his safety when the applicant reached under his seat. The first thing that PC Crews did, after the applicant was placed in the cruiser, was search the area where the applicant had leaned.
[142] PC Crews readily admitted that when he searched the vehicle he was not concerned for his own safety because the applicant was already arrested. But that does not mean there were no public safety concerns. PC Crews believed there was a weapon or drugs under the seat. The vehicle was to be towed and would likely be returned to the applicant at some point. Given his observations, PC Crews had a reasonable basis to believe there was a weapon in the vehicle.
[143] Third, PC Crews never suggested that the purpose of the search was to locate weapons from the Toronto warrant.
[144] Fourth, the search was conducted for valid state objectives and not for any oblique or improper motive.
[145] Fifth, the search was limited to the area where the applicant was seated in the vehicle. This was not a broad search of the vehicle, such as into the back seats or the trunk of the vehicle.
[146] Sixth, there is a diminished expectation of privacy in a motor vehicle.
[147] Seventh, there is no evidence that the search was conducted in an abusive manner, such as causing damage to the vehicle.
[148] Eighth, immediately upon finding the drugs, PC Crews went back and advised PC Khan of what he located so that the applicant could be promptly arrested and cautioned on the drug charges.
[149] Ninth, the search was conducted immediately following the arrest of the applicant, further demonstrating that the search flowed from his arrest. This was not a situation where the police waited hours before searching the driver’s seat area.
[150] In all of the circumstances, I am satisfied that the search flowed directly from the lawful arrest of the applicant and that the search of the immediate area where the applicant had been seated was reasonable and incidental to that arrest. The search of the applicant’s vehicle did not violate s. 8 of the Charter.
Issue #4: Did the Police Violate the Applicant’s s. 8 Charter Rights by Strip Searching him at the Station?
Factual Findings
[151] PC Crews testified that during the drive back to the police station he observed the applicant grabbing the back of his pants. The applicant put his hand in his waistband and PC Crews told him to stop. PC Crews described the applicant as “fidgeting.” PC Crews explained that he was concerned that, given the substances found, the applicant may have more substances on, or in, his person. PC Crews did not want an accidental overdose while the applicant was in custody.
[152] PC Khan testified that while driving back to the station he observed the applicant trying to rise up and adjust his body in the back of the police cruiser. This occurred more than once. PC Khan had seen detainees act like this in the past and it had resulted in drugs being recovered in the cells.
[153] The applicant denied moving in this matter. The applicant testified that the only time he put his hand in his waistband was to pull his pants back up after PC Crews had pulled them down slightly during the pat down search at the police cruiser.
[154] I accept PC Crews’ and PC Khan’s evidence regarding their observations of the applicant. They both made observations consistent with the applicant trying to hide or move something. Each described what they observed in their own words. There is no suggestion that they were motivated by some sort of malice towards the applicant. Their interactions with the applicant were polite and cordial. In fact, After the strip search, the applicant recalled that PC Khan and an officer, with whom he went to high school, visited him in the cells. They had a conversation about their families. It was a little “chit-chat.” The primary concern of both officers was for the safety of the applicant.
[155] PC Crews made a request to Staff Sergeant Dhillon to have the applicant strip searched. PC Crews did not recall what happened after the request because he was not involved in making the decision to search the applicant or the search. PC Khan testified he also advised the Staff Sergeant Dhillon of his concerns about the applicant having drugs on his person due to the applicant’s movements in the cruiser.
[156] Staff Sergeant Dhillon testified he is responsible for prisoner management in the cells, including authorizing strip searches. Staff Sergeant Dhillon testified he “very infrequently” authorizes a strip search. He explained there has to be reasonable grounds to believe that the accused is concealing a weapon or that evidence needs to be recovered. He testified he is aware of the Supreme Court of Canada decision of Golden.
[157] Staff Sergeant Dhillon authorized the strip search after being briefed by PC Crews.
[158] Staff Sergeant Dhillon explained that the nature of the drugs alone would not justify a strip search. While the drugs involved were a factor, he also considered the information from PC Crews that the applicant had been handcuffed in the rear and was moving his hands near his buttocks area.
[159] Sergeant Dhillon explained that he was concerned because the types of drugs involved could be a dangerous to the applicant.
[160] Staff Sergeant Dhillon explained that the type of vehicle the applicant drove, or the applicant’s race, had no bearing on his decision. In addition, the Toronto warrant had no bearing on his decision to strip search, but it was relevant in his eventual decision to release the applicant into custody of the Toronto Police.
[161] In cross-examination, Staff Sergeant Dhillon testified he did not recall if PC Crews told him that he had conducted a pat down search. Staff Sergeant Dhillon testified he would have assumed that PC Crews did a pat down search. He agreed that no drugs were found on the applicant.
[162] In a room at the station, the applicant was told to take off each piece of clothing until he was in his boxers. He was then told to pull his boxers down and bend over. He then pulled his boxers back up and got dressed. He recalled that two male officers were present.
[163] After the strip search, Staff Sergeant Dhillon ordered the applicant be released on the drug offences. Staff Sergeant Dhillon testified the applicant asked to be released on a promise to appear. Staff Sergeant Dhillon believed he would attend court and there were no other public interest concerns related to the drug charges that justified detaining the applicant. However, the applicant remained in custody as he was then transferred to Toronto Police on the warrant for the outstanding offences.
Analysis
[164] The parties agree that the principles governing strip searches are set out by the Supreme Court of Canada in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679.
[165] The common law search incident to arrest power includes authority to conduct a strip search, but it has limitations: Golden, at para. 26.
[166] Given the inherently humiliating and degrading nature of strip searches they cannot be carried out as a matter of routine policy: Golden, at para. 90-95.
[167] A strip search incident to arrest must be related to the reasons for the arrest itself. In this case, the strip search was related to the arrest. The applicant was arrested for possession for the purpose of the trafficking drugs, and the search was to discover drugs located on the applicant: Golden, at para. 92; Caslake, at para. 17.
[168] The police must establish reasonable and probable grounds for justifying the strip search, in addition to the reasonable and probable grounds justifying the arrest. When these preconditions are satisfied, the manner in which the strip search is conducted must also be reasonable: Golden, at para. 97-99.
[169] I found Staff Sergeant Dhillon to be a thoughtful and straight-forward witness. He testified he very infrequently authorizes strip searches. His primary concern for authorizing the search was the safety of the applicant given the nature of the drugs involved. I find that he subjectively and objectively had grounds to conduct a strip search in this case and, therefore, the applicant’s s. 8 Charter rights were not violated. I make this finding for the following reasons.
[170] First, I find the arrest of the applicant was lawful.
[171] Second, I accept PC Crews’ evidence that he observed the applicant reaching into his waistband and appearing fidgety. His evidence was corroborated by the evidence of PC Khan. They both made similar observations and described their observations in their own words. Both officers were concerned and primarily requested a strip search for the safety of the applicant. There is no evidence that either officer wanted to unduly humiliate the applicant. By everyone’s account, the arrest in this case was polite and non-confrontational.
[172] Third, the fact that the applicant was fidgeting, putting his hands in his waistband, and seemingly nervous, along with the nature of the drugs involved, gave Staff Sergeant Dhillon reasonable grounds to justify the search. This was particularly true given the risk to the applicant had he been hiding drugs on his person.
[173] Fourth, while Staff Sergeant Dhillon released the applicant on a promise to appear, the applicant was still being held in custody on the Toronto warrant, at least until the applicant was turned over to Toronto police.
[174] Finally, there is no evidence the strip search was conducted in an unreasonable manner. The search was conducted in a private room in the station, in the presence of two male officers. There is no evidence of any unnecessary force or improper touching.
[175] In all the circumstances, the strip search of the applicant did not violate the applicant’s s. 8 Charter rights.
Issue #5: Should the Drugs be Excluded pursuant to s. 24(2) of the Charter?
[176] Given that I have found that the applicant’s s. 10(a) Charter rights were violated, I must consider whether the evidence of the drugs should be excluded pursuant to s. 24(2) of the Charter.
[177] Under the s. 24(2) Charter analysis, the court must consider the effect of admitting the evidence on society’s confidence in the administration of justice, having regard to the following factors laid out in Grant, at para. 71:
a) The seriousness of the Charter-infringing state conduct;
b) The impact of the breach on the Charter-protected interests of the accused; and
c) Society’s interest in the adjudication of the case on its merits.
[178] When considering the seriousness of the Charter breaches, courts have recognized that inadvertent or minor violations may minimally undermine public confidence in the rule of law. In contrast, wilful or reckless disregard for Charter rights or egregious conduct “will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute”: Grant, at para. 74.
[179] This violation of s. 10(a) was an inadvertent or minor error. PC Crews told the applicant that he was under arrest in relation to a warrant, but he failed to immediately provide any details regarding the substance of the offences. Those details were provided within minutes.
[180] The impact of the breach on the applicant’s Charter rights was minimal. No evidence was gathered as a result of the Charter breach and the deficiency in advising the applicant of the charges was rectified quickly.
[181] The drugs are real evidence, and their exclusion will gut the Crown’s case. This factor, therefore, favours inclusion of the evidence.
[182] As stated by Doherty J.A. in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, when the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. This is exactly the situation in this case. The long-term repute of the administration of justice does not favour exclusion of the drugs.
[183] The evidence of the drugs is, therefore, admissible at the trial.
Trial: Has the Crown Proven the Applicant’s Guilt Beyond a Reasonable Doubt?
[184] The parties agree that the evidence of the police officers used in the Charter application applies to the trial proper. The applicant’s evidence and any exhibits entered through him are not evidence in the trial proper. The parties filed an Agreed Statement of Facts in the trial that attached the certificate of analysis for the drugs and an expert report providing an opinion that the amount of cocaine is consistent with trafficking and not personal use.
[185] In the Agreed Statement of Facts, the parties agree that the police located 2.81 grams of fentanyl and 12.06 grams of cocaine, and that the applicant possessed both of the drugs. The parties also agree that the applicant possessed the cocaine for the purpose of trafficking.
[186] Based on the above Agreed Statement of Facts, including the attached exhibits and PC Crews’ and PC Khan’s evidence, I am satisfied beyond a reasonable doubt that the applicant possessed cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and that he possessed fentanyl contrary to s. 4(1) of the Controlled Drugs and Substances Act.
[187] The applicant is therefore convicted on both count one and two on the indictment.
Released: November 15, 2021 Dennison J.
COURT FILE NO.: CR-20-00000531-00
DATE: 2021 11 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
PHILLIP HECTOR
Applicant/Accused
REASONS FOR JUDGMENT
(CHARTER RULING AND TRIAL DECISION)
Dennison J.
Released: November 15, 2021