Court File and Parties

Court File No.: CR-22-30000046-0000 Date: 2023-04-25 Ontario Superior Court of Justice

Between: His Majesty The King And: Shamar Bailey, Kwami Garwood, Defendants

Counsel: Jonathan Smith, Leslie Zamojc, for the Crown Maurice Mattis, Monte MacGregor, for Shamar Bailey Jessica Zita, Victoria Strugurescu, for Kwami Garwood

Heard: February 22 - March 2, 24, 2023

Justice S. Nakatsuru

Reasons for Judgment

[1] On his charge of first-degree murder, Mr. Bailey seeks to exclude statements made to Sgt. Lawson on July 7, 2020, when Mr. Bailey was stopped while driving a blue Hyundai on Highway 401 by Sgt. Lawson. He submits his rights under s. 9 and s. 10(b) of the Charter were violated.

[2] The essence of his claims is that Sgt. Lawson used s. 216 of the Highway Traffic Act (“HTA”) as a ruse or a pretext to further the homicide investigation into the death of Andre Charles. Mr. Bailey is alleged to have been the driver of the Hyundai that transported the two shooters to the scene of the murder that occurred on July 4, 2019. He submits that this pretext stop violated his s. 9 right. Moreover, Mr. Bailey was not given his right to counsel during the stop. Given that his detention was not duly authorized under the HTA, it is submitted that he should have been provided his right to counsel upon his detention.

[3] I will first deal with the s. 9 claim.

A. General Principles

[4] In R. v. Gonsalves, 2017 ONCA 543, 136 O.R. (3d) 225, at paras. 49-64, as usual, Watt J.A. thoroughly and succinctly set out the legal principles when it comes to s. 9 and roadside detentions under s. 216 of the HTA under circumstances such as those presented in the case at bar. Many of those principles originate and are explained in the decision of Brown v. Durham (Regional Municipality) Police Force (1998), 43 O.R. (3d) 223 (C.A.), as well as the Supreme Court of Canada’s decision of R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851. These principles continue to remain essentially unchanged: see R. v. Mayor, 2019 ONCA 578, 378 C.C.C. (3d) 453; R. v. Bzezi, 2022 ONCA 184, 505 C.R.R. (2d) 130, at paras. 15-21.

[5] Most relevant to this case is the principle that it is not a violation of s. 9 if the police have dual or multiple purposes for the roadside stop — provided the purposes are not improper — so long as at least one legitimate purpose is the concern for highway safety that animates s. 216 of the Highway Traffic Act, R.S.O. 1990, c. H.8. However, absent any possible common law authority, if highway safety concerns are just a ruse or a pretext to justify the stop, then the HTA provides no lawful authority for the detention, resulting in a violation of s. 9 of the Canadian Charter of Rights and Freedoms.

[6] This leads me to the analysis of Sgt. Lawson’s evidence along with other evidence regarding the conduct of the stop.

B. Sgt. Lawson’s Testimony

[7] On July 7, 2020. Sgt. Lawson, who was at that time still a police constable, was in uniform in a marked police car working in traffic enforcement. At the request of his supervisors, he met with two detectives from homicide who were investigating Mr. Andre Charles’ shooting. Under the direction of the homicide detectives, a police mobile surveillance team was surveilling a blue Hyundai Elantra, a vehicle that the detectives believed to have been involved in the homicide. The detectives wanted the driver and the vehicle investigated. The surveillance team had seen it driving erratically on city streets, at excessive speed, and changing lanes quickly. Thus, the information conveyed to Sgt. Lawson was that the driver was operating the vehicle in an unsafe fashion and was dangerous to the public. [1] Sgt. Lawson was satisfied he had the lawful authority under the HTA to stop the Elantra based on this information received from the road supervisor of the surveillance team. Sgt. Lawson testified that these observations substantiated a HTA stop to check the vehicle to ensure it was being operated properly and to find out the reasons for the driving behavior [2]. He further checked the licence plate of the Hyundai and found out it was a rental vehicle.

[8] Sgt. Lawson took care to ensure that the stop looked like a normal vehicle stop. Therefore, he did not stop the vehicle when it was at a gas station. In radio communications from the surveillance team, he caught up to the Hyundai on eastbound Highway 401 in Pickering. As he did so, he noticed that its fuel cap was not secured and was dangling on the side of the car. Sgt. Lawson testified this further solidified his view that he had legal authority to stop the car, since if the cap broke off, it would create a hazard, as a projectile bouncing around on the highway.

[9] Sgt. Lawson stopped the vehicle. He advised the driver, Mr. Bailey, that he had received a complaint about his driving. Sgt. Lawson asked Mr. Bailey for his driving documents. When he received them, it turned out that Mr. Bailey only had a G1 licence and was not allowed to be driving alone. Sgt. Lawson also asked a few questions about the person who rented the vehicle to determine if the Mr. Bailey was properly authorized to have the vehicle and was possessing it lawfully. This is what he normally inquires of drivers of rental vehicles that he stops.

[10] Sgt. Lawson directed Mr. Bailey off the highway to a train station parking lot, had him call family or friends to pick up the Hyundai, and wrote Mr. Bailey a ticket for driving alone with a G1 licence. He decided not to write tickets for other infractions such as careless driving. The entire stop and interaction were recorded on video and Sgt. Lawson testified what could be seen on the video was how he typically behaved in a normal vehicle stop.

[11] I find that cross-examination did not detract from the credibility and reliability of Sgt. Lawson’s testimony. In cross-examination, Sgt. Lawson testified that the detective in charge of mobile surveillance gave him the information regarding the HTA concerns that provided him the legal authority to make the stop under the HTA to conduct further investigations. This, in addition to seeing the gas cap dangling, provided him with the lawful authority to stop the vehicle. He agreed that he was tasked to investigate the vehicle for the homicide detectives and the HTA was the mechanism used to do the stop. The underlying reason for stopping the car was to investigate the homicide and the legislative authority was used to lawfully elicit the information. He testified that the observations of the surveillance team provided a lawful avenue for a HTA stop, but once he saw the dangling gas cap, this further solidified it, and he could not let the car go. While he could make a HTA stop anywhere in Ontario as a member of the Toronto Police Service, the only reason Sgt. Lawson crossed into a neighboring jurisdiction was that homicide asked him to follow the vehicle.

C. Analysis

[12] It is not enough that Sgt. Lawson was exercising his powers under the HTA when stopping the Hyundai. This alone does not mean that the stop was Charter compliant. This is the mistake made by the trial judge in Mayor. That decision was overturned on appeal. In resolving this issue of whether the detention of Mr. Bailey was a pretext stop under the HTA, the following lengthy passages from Mayor, at paras. 7-10, are most instructive:

However, the existence of these powers does not automatically make motor vehicle stops lawful because the police are not free to use these powers for some other purpose, including to further a criminal investigation. The Legislature granted the police these powers for the purpose of ensuring road safety: Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (C.A.), at pp. 242-243. The court must ensure that the police use these powers in a manner consistent with this purpose. As a result, if the police do not have road safety purposes subjectively in mind, they cannot rely on the Highway Traffic Act powers to authorize the stop: Gonzales, at para. 60. If the police cannot point to any other legal authority for the stop, the stop will not be authorized by law and so will violate s. 9 of the Charter: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54. The court must thus determine whether the officer actually formed a "legitimate intention" to make the detention or arrest for road safety purposes: R. v. Sandhu, 2011 ONCA 124, 268 C.C.C. (3d) 524, at para. 62.

A detention or arrest pursuant to a Highway Traffic Act power can be lawful if the officer has either only road safety purposes in mind or has both road safety and other legitimate purposes in mind. In Brown, Doherty J.A. accepted that as long as the police have a road safety purpose subjectively in mind, they may also have other legitimate purposes in mind: at p. 238. The investigation of criminal activity is one such legitimate purpose: Brown, at p. 240. Indeed, in Brown, Doherty J.A. found that motor vehicle stops which were partially motivated by a desire to investigate crime were lawful because the police also had road safety purposes in mind: at pp. 239-240. Doherty J.A. noted that a Highway Traffic Act stop where the police are furthering some other legitimate interest is lawful provided that the additional police purpose is not improper or pursued through improper means, and does not entail an infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating s. 216(1) of the Highway Traffic Act: at p. 236. See also Gonzales, at para. 58. In many cases it will be unhelpful to take an either/or approach to whether a stop is for road safety or some other legitimate purpose. See for example Sandhu, at para. 59. An officer may thus have a road safety purpose in mind even if the officer simultaneously has a criminal law purpose in mind: Sandhu, at para. 62.

However, if the officer does not have a legitimate road safety purpose in mind and is using the Highway Traffic Act authority as a mere ruse or pretext to stop a vehicle in order to investigate a crime, then the detention will be unlawful. As Doherty J.A. held in Brown, the Highway Traffic Act powers will not authorize police stops if the police use these powers as a "ruse" to justify a stop for another purpose: at p. 234. Likewise, in R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 36 (citations omitted), the Supreme Court emphasized that courts should not permit the police to invoke road safety detention powers as "a plausible façade for an unlawful aim." Accordingly, in R. v. Humphrey, 2011 ONSC 3024, 237 C.R.R. (2d) 109, at para. 88, Code J. held that using Highway Traffic Act powers "as a mere 'ruse' or 'pretext' for a broad and unfounded criminal investigation" would violate s. 9 of the Charter.

Consequently, 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 Highway Traffic Act power as a ruse to conduct a criminal investigation. In determining the police purpose, the court must consider all the circumstances, including the evidence of the officers, the evidence of the detained person, the circumstances of the stop, and the police conduct during the stop: Brown, at p. 238; Gonzales, at para. 67.

[13] Unquestionably, there are several factors that support the finding that the stop was a pretext stop to investigate the homicide. These factors include the fact that the homicide investigators had an important reason to stop the vehicle, that they asked Traffic Services for their help, that Sgt. Lawson maintained contact with the mobile surveillance team throughout, and that he stopped the vehicle outside of his normal jurisdiction.

[14] Also, it is true that but for the homicide investigators’ involvement, Sgt. Lawson would not have stopped the Hyundai. However, as it was held in R. v. Sandhu, 2011 ONCA 124, 103 O.R. (3d) 561, at para. 61, “[t]he presence of a criminal law purpose for conducting a search, does not itself, preclude the existence of a valid regulatory purpose”. This proposition applies equally to when the police conduct a vehicle stop and a detention. The fact that Sgt. Lawson clearly had an investigative purpose, indeed one that was dominant, to assist the homicide investigation, does not mean he did not also have a regulatory purpose in stopping the vehicle for highway safety concerns.

[15] I find as a fact that Sgt. Lawson had a legitimate road safety purpose mind in using the HTA power to stop the Hyundai. I accept the Sgt. Lawson’s testimony given on this application that the stop and detention was made for regulatory purposes.

[16] In addition to his testimony on the voir dire, Sgt. Lawson’s preliminary inquiry testimony provides even greater detailed reasons supporting the regulatory purpose for the stop, detention, and questioning of the driver. Sgt. Lawson testified that

“…at this time, there was bona fide and valid reasons that the driver had been driving in a manner that was unsafe… at that particular moment the detective constables that had been observing and following the vehicle observed the manner to which he was driving to be dangerous and erratic and indeed substantiated a vehicle stop under the for me to determine who's driving, are they licensed, are they able to drive and even the — and so far as to evaluate their sobriety and, and at that point it became a, excuse me, a public safety issue.” [3]

[17] While it is true that Sgt. Lawson would not have stopped the Elantra but for the involvement of the homicide investigators, an illuminating parallel question to pose in ascertaining whether it was a pretext stop or a ruse, is to ask, if Sgt. Lawson did not have the information about the driving, which I have found as a fact were legitimate concerns of his, would he have stopped the vehicle? In my opinion, the answer is no since he would not have had the proper reasons to stop the vehicle.

[18] The potential for a ruse or pretext is more likely if a police officer conducts a random or arbitrary stop of a vehicle that furthers a criminal investigation. In such a case, it is easy to claim a regulatory purpose when the totality of the circumstances cries out that it was done solely to aid a criminal investigation. Here, there were articulable reasons why Sgt. Lawson wanted to stop the vehicle for a regulatory purpose: for highway safety reasons. The driver was seen driving erratically and carelessly and was speeding. Reasons that I have accepted were truthful. The driving observed by the mobile surveillance team, even though it was done during the surveillance of Mr. Bailey conducted on behalf of the homicide investigators, objectively would raise highway safety concerns. Of course, I recognize that those safety concerns dovetailed with the goals of the homicide detectives, but that did not fundamentally make the stop only a subterfuge tactic that illegally infringed the liberty of Mr. Bailey. While it forms no part of my analysis since the decision to stop was made before this information was discovered, it did turn out that Mr. Bailey was a novice driver holding only a G1 licence and should not have been driving by himself. From that point on, Sgt. Lawson’s actions were taken to ensure the safety of Mr. Bailey and the public.

[19] The discussions Sgt. Lawson had with Mr. Bailey subsequent to the stop were focused on highway safety concerns and his licensing. None of the questions Sgt. Lawson posed, or the actions he took, were out of the ordinary for a motor vehicle stop of this nature.

[20] I therefore conclude that there was no s. 9 violation.

D. Section 10(b) of the Charter

[21] Since the stop was properly authorized under the HTA, a detainee’s right to counsel is suspended: R. v. Humphrey, 2011 ONSC 3024, 237 C.R.R. (2d) 109, at para. 113, per Code J.

[22] Therefore, there was no violation of Mr. Bailey’s right to counsel under s. 10(b) of the Charter by Sgt. Lawson’s failure to advise him of it.

[23] The application is dismissed.

Justice S. Nakatsuru Released: April 25, 2023

Footnotes

[1] It was agreed that the preliminary inquiry testimony of Sgt. Lawson was to be considered on the application. This is found at p. 5 ll. 10 -20

[2] Preliminary inquiry p. 9 ll 4-7.

[3] Preliminary inquiry p 41 l. 26 – p. 42 l. p. 42 l. 8