COURT FILE NO.: CR-21-128, CR-21-127
DATE: 20221103
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Richard Robertson
Applicant
– and –
His Majesty The King
Respondent
J. Fisher, for the Applicant
G. Igbokwe, for the Crown Respondent
HEARD: September 16, 2022
MCcarthy J.
REASONS ON APPLICATION
The Application
[1] This is an application under s. 24(2) of the Canadian Charter of Rights and Freedoms[^1] (“the Charter”) to exclude evidence which was seized from a vehicle being operated by the Applicant.
[2] The Applicant alleges breaches of sections 8, 9, 10(a) and 10(b) of the Charter.
[3] The evidence in question was controlled substances tested as 53.11 grams methamphetamine and 45 heroin pills (“the impugned evidence”). The Applicant is charged under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 with possession of a Schedule 1 substance for the purpose of trafficking, and under the Criminal Code, R.S.C. 1985, c. C-46 for failing to comply with a release order and driving while disqualified.
The Relevant Facts
[4] The court received evidence from the two investigating officers of the Barrie Police Force: Office Hayes (“Hayes”) and his partner Officer Knight (“Knight”).
[5] On February 7, 2020 the Applicant was detained by Barrie police at a traffic stop while operating a white Mitsubishi Lancer (“the vehicle”).
[6] At approximately 10:21am that morning, while involved in another matter, Hayes observed the vehicle approaching him. The officer noticed a male driver and a front seat passenger whom he recognized as Z.P., a known drug trafficker. Hayes recorded and ran the license plate number of the vehicle and discovered that it was registered to a female. Preoccupied with other matters, neither Hayes nor his partner were able to stop the vehicle to investigate.
[7] At approximately 10:45 am, however, the officers came upon the vehicle a short distance away. This time the unknown male was alone in the vehicle. Hayes testified that he could not see a front license plate; it was either covered with snow or not attached to the vehicle. The officers activated their lights and pulled the vehicle over. The purpose for the vehicle stop was to investigate the license plate and to determine whether the unknown male was a licensed driver. The vehicle stop was authorized under section 216(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“the HTA”).
[8] Hayes approached the driver side of the vehicle while Knight remained behind it. Neither officer ever checked the front license plate to see if it was obscured or missing. The Applicant identified himself upon the officer’s request and stated that he did not have a driver’s license. A CPIC search then revealed that the Applicant was subject to a driving prohibition and a release order with a condition not to operate a motor vehicle.
[9] At 10:52am the Applicant was arrested, removed from the vehicle, searched, and taken to the police cruiser where he was provided rights to counsel at 10:56am.
[10] Knight looked in the vehicle and observed currency in the open driver door. He picked up the currency and then noticed a pencil case which he seized and searched, finding packaged controlled substances. Knight explained that he seized the currency incident to arrest because it is his policy to seize and collect anything of value. He continued the search of the vehicle for reasons of officer safety and under the common law authority. Knight was not certain whether the Applicant would be returning to the vehicle before being taken to the station or if he was going to be released on an undertaking. There remained the risk that the Applicant could access knives or small firearms if he returned to the vehicle. The search was limited to the immediate area of the driver’s seat which included the door, centre console and beneath the seat.
[11] Knight believed that he had authority to search the vehicle either incident to arrest for the prohibition charge or as an inventory search of an impounded vehicle. Officer Knight advised his partner about finding the drugs as soon as they were found.
The Canadian Charter of Rights and Freedoms (“the Charter”)
[12] The relevant provisions of the Charter for consideration by the court read as follows:
s. 8 Search or Seizure – Everyone has the right to be secure against unreasonable search or seizure.
s. 9 Detention or Imprisonment – Everyone has the right not to be arbitrarily detained or imprisoned.
s. 10 Arrest or Detention – Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor.
(b) to retain and instruct counsel without delay and to be informed of that right.
s. 24(1) Enforcement of guaranteed rights and freedoms – Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
s. 24 (2) Exclusion of evidence bringing administration of justice into disrepute – Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
The Applicant’s Position
[13] The Applicant contends that he was arbitrarily detained contrary to s. 9 of the Charter. The detention was not legitimate pursuant to the HTA. There was no legal basis for the traffic stop. It was a ruse. Therefore, any observations, information or evidence arising from that detention were in violation of the Charter protected rights.
[14] As well, the police did not inform the Applicant of the true reason for his initial detention contrary to s. 10(a) of the Charter. And given that the initial detention had nothing to do with the HTA, but rather with a drug trafficking investigation, the police were required to provide rights to counsel immediately upon detention. They failed to do so in contravention of s. 10(b) of the Charter.
[15] The search of both the vehicle and the pencil case found within constituted s. 8 violations because: the initial detention and subsequent arrest being unlawful, the search that followed was unreasonable; the search was not incident to a lawful arrest; and the search was not an authorized inventory search.
[16] The Applicant argues that evidence found in the unlawful search must be excluded under the R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, analysis called for under s. 24(2) of the Charter. The police misconduct here was serious; the HTA stop was a ruse; Hayes may have suspected that a drug deal had or was taking place in the vehicle but had no reasonable grounds to stop the vehicle on that basis. An arbitrary arrest of this magnitude cannot be condoned. Police cannot use the powers in the HTA to conduct drug investigations based upon mere suspicion. This is an example of police abuse of the broad authority in the HTA to conduct groundless and arbitrary searches.
[17] A search incident to arrest was not warranted; there were no police or public safety imperatives, and a search would never turn up evidence in support of the HTA charges. It should have been obvious to Knight that with the vehicle being impounded, the Applicant was not going to be permitted to return to it. If there was any doubt about that, Knight could have made an inquiry of his partner who was seconds away.
[18] There is wholly unreliable evidence that the view of the front license plate was obscured. Hayes had been able to read the vehicle’s front plate when he had first observed it a matter of minutes before the traffic stop. That issue was of so little importance to police that neither of the two officers even bothered to check the front plate at the traffic stop. Moreover, Knight advised that it was always his practice to search the immediate area after an arrest; and to conduct an inventory search upon impoundment of a vehicle. This is a longstanding systemic but illegal use of police powers. The infringements here were serious.
[19] The impact on the Charter protected rights of the Applicant was serious. The Applicant was doing nothing wrong; it is commonplace for an individual to drive another person’s vehicle; there was no traffic violation of any kind. His liberty was grossly infringed when police used a HTA stop as a ruse to indirectly conduct a drug investigation.
[20] On the third prong of Grant, while society certainly has an interest in stamping out drug trafficking, the evidence will rarely be admitted where, as here, the first two prongs weigh in favour of exclusion.
The Crown’s Position
[21] The Crown maintains that this was a legitimate HTA traffic stop. Police were properly investigating a driver who was not the registered owner of the vehicle; and the front license plate of the vehicle was not visible. Immediately upon being stopped, the Applicant volunteered that he was driving without a license giving the police grounds to arrest him for that HTA offence. The search of the vehicle was incident to that arrest and was necessary for officer and public safety. In any event, the law authorizes an inventory search in such circumstances. Even if police were wrong in their approach and infringed Charter protected rights, there is no evidence of bad faith or reckless disregard of those rights.
[22] In terms of the impact on the Applicant of any infringements, the impugned evidence would have been discovered in any event because the police were entitled and even obligated to conduct an inventory search. The police afforded 10(a) and 10(b) rights in respect of the charges as the evidence came to light in support of the respective charges.
[23] The third prong of the Grant analysis would not favour exclusion of the evidence: society’s interest in getting drugs and traffickers off the streets far outweighs the seriousness of the police conduct and the impact on the protected rights of the Applicant.
Analysis
Section 9 – Arbitrary Detention
[24] In cases assessing the lawfulness of a roadside detention, the court must make a factual determination as to whether the officer had a road safety purpose in mind or whether the officer was using the HTA power as a ruse to conduct a criminal investigation: see R v Mayor, 2019 ONCA 578, 378 C.C.C. (3d) 453, at para. 10.
[25] I am persuaded that the two officers were not motivated to affect the vehicle stop by the fact that the front license plate on the subject vehicle was obscured or missing or out of concern that the unknown driver might not be licensed. I say this for the following reasons:
a. Hayes apparently had no difficulty in reading the license plate on the vehicle at 10:21am when he first took notice of it. While he did not clarify whether he read the front plate or the back plate, I find that he would more than likely have read the front plate. The vehicle was approaching him from the front. Undoubtedly, he would have recalled that the front plate was missing or obscured had it been necessary for him to divert his attention to the back plate.
b. That the front plate became so obscured by snow or ice, or that it suddenly went missing, in the 24 minutes between the officer’s first and second sighting of the vehicle is a proposition too fanciful to be entertained.
c. If the weather conditions in Barrie were conducive to the accumulation of snow or ice on the Applicant’s front plate sufficient to obscure it from view, his could not realistically have been the only vehicle in the vicinity to be in that condition. I find it highly unlikely that the two officers would have felt it necessary to pull the vehicle over in such conditions especially when Hayes had been able to detect and record the plate number just minutes before.
d. The fact that neither of the two officers took the time to walk the handful of steps to the front of the vehicle in the moments following the vehicle stop to investigate whether the plate was obscured or missing leads me to conclude that the entire license plate issue was simply a ruse. I find that the observation made of Z.P. in the vehicle moments before the traffic stop was the sole factor which created the police officer’s interest in the vehicle, and which motivated them to rely on the broad powers afforded by the HTA to pull the vehicle over to investigate a possible drug deal.
e. I find it odd that Hayes would not have mentioned in some detail to his partner Knight the reason for his initial interest in the vehicle. Knight testified that Hayes mentioned the vehicle, but Knight could not recall any details. Knight recalled that, from his own observations, the front license plate was the “issue”. Precisely what the “issue” was with the front plate he did not say. Regardless, I find it highly improbable that Knight made any observation of the plate at all. That one officer would just happen to make an observation or find an issue with the front license plate on a random vehicle which his partner had failed to notice 24 minutes previously is too incredible to believe. I find it far more likely that Hayes informed Knight about the Z.P. sighting, and that this sparked both officers’ interest in the vehicle. A potential drug offence, not any HTA issues, was the sole reason for the police officers’ decision to conduct the vehicle stop.
f. I am left to question how, in a city the size of Barrie, two traffic officers could randomly come upon the very same vehicle in which they had spotted a known drug dealer 24 minutes before. The chances that they would are slim to the point of impossibly remote. I infer that spotting Z.P. in that vehicle prompted the officers to either follow or search for that vehicle in the context of a drug investigation.
g. I do not accept Hayes’ evidence that the fact that the plates were registered to a female raised a legitimate concern that the driver may not be licensed. This alone should not have raised police suspicion or served as the basis for a vehicle stop. In cross-examination Hayes admitted that he would have conducted the traffic stop absent the obscured or missing plate issue because of the investigation into the vehicle operator’s license status. This is problematic for several reasons. One, the vehicle was not being driven improperly. Two, vehicles are operated by non-owners frequently, almost routinely; the Applicant might easily have been the vehicle owner’s partner or family member. Three, the fact that Hayes was determined to conduct the vehicle stop without regard to the license plate issue supports the inference that HTA considerations were not the focus of this investigation.
[26] I conclude that what was really happening on the morning of February 7, 2020, was an investigation, perhaps impromptu, but nonetheless real, into potential drug trafficking. Perhaps, it was an investigation which lacked sufficient evidence to support a warranted stop, seizure, and search of the vehicle. It nonetheless raised the tantalizing prospect of finding drugs if an HTA basis could be relied upon to stop a vehicle in which a known drug dealer had just been spotted.
[27] In light of my findings, I must agree with the Applicant that the police did not subjectively intend to investigate any concerns with the vehicle’s front plate or the license status of its operator. The police used their powers as a pretext to pursue a drug investigation. The detention of the Applicant under the HTA was therefore not lawful.
[28] It follows that the Applicant was arbitrarily detained contrary to s. 9 of the Charter. There was no lawful basis to detain the Applicant; any subsequent observations made or information gathered thereafter arose out of unlawful conduct which infringed a Charter protected right.
Sections 10(a) and (b)
[29] The arbitrary detention created a cascading effect.
[30] To determine whether a breach of section 10(a) occurred, the court must look at the circumstances and determine whether what the Applicant was told permitted him to make a reasonable decision whether to submit to arrest of detention: see R. v. Rodrigues, 2017 ONCA 543, 136 O.R. (3d) 225, at paras. 122-125.
[31] Given my conclusion above that the vehicle stop was essentially part of a drug investigation, the evidence makes it clear that the Applicant was not advised of this upon being pulled over. Instead, he was improperly detained and subjected to questions. There was an infringement of the Applicant’s rights under s. 10 (a).
[32] While police are not required to provide s. 10(b) rights to counsel at a routine HTA traffic stop, this was not the situation in the case at bar. There being no valid purpose for the traffic stop, it was incumbent upon the officers to provide rights to counsel in respect of the true reason for the detention: the Applicant was being investigated in a suspected drug deal involving Z.P. Rights to counsel for possession and trafficking of controlled substances were not provided until 10:56am, after the unlawful search of the vehicle and some ten minutes after detention. I find this to constitute an unwarranted and unreasonable delay. The Applicant’s rights to counsel under s. 10(b) of the Charter were not afforded immediately upon detention.
Section 8 – Illegal search
[33] In my view, because the Applicant was unlawfully detained, it is impossible not to conclude that the search which followed was unreasonable. Indeed, had the detention not been imposed upon the Applicant, his vehicle would not have been searched. How can a search and seizure stemming from an unlawful act be reasonable? It cannot.
[34] I find authority for this in the case of R. v. Bachiu-Tait, 2021 ONSC 6207, where Kurz J, at para. 73 of that decision, stated as follows:
Given that the arrest was unlawful, the search of the vehicle following that arrest was also unlawful, necessarily unreasonable, and violated the accused’s s. 8 Charter right to be secure against unreasonable search and seizure.
[35] I would apply that reasoning to the case at bar. The Applicant’s detention under the HTA having been a pretext for a drug investigation and therefore unlawful, any search conducted in the wake of that unlawful police conduct, be it a search incident to detention/arrest or an inventory search, could not be reasonable. There was therefore an infringement of the Applicant’s s. 8 rights.
[36] In light of the above findings, I do not need to embark on a consideration of whether the search conducted by Knight would in other circumstances constitute a valid search incident to arrest or a lawful inventory search.
[37] Police conduct in respect of that search will be considered under the R. v. Grant analysis below.
S. 24(2) and the Grant analysis
[38] On the first prong of the Grant test, I find the Charter breaches to be serious. Using an HTA offence as a pretext for a vehicle stop in the context of a drug investigation is clever, but disingenuous and dangerous. I have no means of determining whether the police use of the broad HTA powers as a pretext for investigating more serious offences is widespread or systemic. Counsel for the Applicant suggests that it is. I cannot conclude one way or the other.
[39] There is no doubt that police can easily employ the broad powers under the HTA to effect vehicle stops. That certainly serves a commendable objective: to ensure the safety of the public on roads and highways. But where those powers are employed to arbitrarily detain individuals who are not committing HTA offences, Charter rights are not just infringed, but eviscerated and in an almost callous fashion. This type of police conduct must be strongly discouraged.
[40] I find that this is what took place on February 7, 2020. The two officers used the broad powers in the HTA as a means of pursuing a drug investigation. That infringement of the Applicant’s s. 9 Charter rights was serious.
[41] The other infringements were no less serious. The officers declined to advise the Applicant of the true reason for the detention and denied the Applicant immediate and meaningful rights to counsel for the real offence for which he was being investigated. That is a serious breach of both s. 10(a) and (b) of the Charter.
[42] The seriousness of the s. 8 breach is not attenuated by the fact that police may have been able to conduct an inventory search under s. 55(1) or (2) of the HTA. Nor is it attenuated by Knight’s evidence that he believed that he was conducting a search incident to arrest on the HTA charges. One, I have already found that the search was unlawful as it followed upon a s. 9 breach. Therefore, any search of the vehicle was unlawful. Two, my earlier conclusion that the HTA vehicle stop was a pretext for a drug investigation leads me to find that Knight’s evidence on this point must be rejected. His search of the vehicle was not done in good faith. Three, even if the HTA concerns were the valid reason for the vehicle stop, any search of the vehicle incident to arrest on those charges could not have been authorized.
[43] According to the ONCA in R. v. Santana, 2020 ONCA 365, a search incident to arrest must be for the purpose of protecting the police, protecting evidence, discovering evidence, or some other valid purpose. A court must look at the purpose of the search and how it was connected to the arrest. It must then determine if the purpose identified was an objectively reasonable one in the circumstances: see paras. 23-26.
[44] The purpose and conduct of the search here cannot survive that scrutiny. There were simply no issues of officer safety. Nothing in the vehicle posed a threat to police. The Applicant was entirely compliant with police; he was cuffed and in custody within moments of leaving his vehicle. There was no objective or subjective possibility of the Applicant returning to his vehicle or accessing the pencil case. Considering the HTA charges, the vehicle was to be impounded. Had Knight been concerned about the remote possibility of the Applicant being released, his partner Hayes was steps away in the police cruiser. There was nothing preventing Knight from making the simplest of inquiries before embarking on a search. Finally, the Applicant was under arrest for driving while disqualified and breaching a release condition. There was no evidence that needed to be preserved or searched for in the vehicle, the pencil case or anywhere else. Police already had the information they required in support of the charges.
[45] My findings that the HTA was used as a pretext together with the unwarranted nature and extent of the unlawful search combine to propel these breaches into the category of serious.
[46] I need not embark upon whether police have the authority, indeed the obligation, to conduct inventory searches of vehicles impounded under s. 55(1) or (2) of the HTA. There appear to be competing authorities on that point. What is certain is that the police search of the Applicant’s vehicle on February 7, 2020, constituted a serious breach of his s. 8 rights. The first prong of the Grant analysis weighs heavily in favour of exclusion of the impugned evidence.
[47] On the second prong of the Grant analysis, I find that the Charter infringing conduct by police here had a profound impact on the Applicant’s Charter protected rights. The Applicant was detained arbitrarily and unlawfully. There was nothing about his driving or conduct that day which warranted a vehicle stop. The unauthorized detention led directly to the s. 10(a) breach because the Applicant was not made aware of the true reason and basis for being detained. This led to the Applicant both identifying and incriminating himself, resulting in his arrest. The police misuse of the broad powers in the HTA for the purposes of a drug investigation resulted in an unreasonable delay in the informational component of the rights to counsel for the true basis for detention. The arrest was followed by an unlawful search of the vehicle which uncovered the impugned evidence. The second prong of the Grant test weighs in favour of exclusion of the evidence.
[48] I acknowledge that the impugned evidence would be crucial to the Crown’s ability to secure a conviction at trial. I also acknowledge that society has a profound interest in having criminal matters adjudicated on their merits. Drug trafficking is a particular menace which needs to be combatted in the most serious way. Nevertheless, society also has an interest, often unarticulated and grudgingly conceded, in ensuring that police powers, designed to pursue laudable goals, are exercised in a manner which does not unnecessarily trammel upon enshrined Charter rights. I find that, in the circumstances of this case, the administration of justice would be brought into disrepute if the impugned evidence was not excluded.
[49] For the foregoing reasons the application is allowed.
[50] The impugned evidence shall be excluded at trial. The Crown is precluded from introducing or referring to any evidence found in the Applicant’s vehicle at or after 10:45am on February 7, 2020.
Justice J. R. McCarthy
Released: November 3, 2022
NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon.
[^1]: Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11.