Court File and Parties
COURT FILE NO.: 15827/22 DATE: 2023-05-30 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – TRISTAN ARMSTRONG Defendant
Counsel: Ms. Portolese, for the Crown Mr. Singh, for the Defendant
HEARD: March 20, 21, 22, 23, 24, 27, 29 and 30, 2023
RULING ON SS. 8, 9, 10(a) AND 10(b) OF THE CHARTER
Justice Verner
1Tristan Armstrong stands charged with a total of seven counts. Six counts relate to the alleged possession of a loaded restricted firearm in a vehicle. The seventh count relates to the alleged possession of cocaine for the purposes of trafficking.
2On consent of the parties, the matter proceeded as a blended Charter application, voluntariness application and trial. The Crown called nine police officers and the Defence called no evidence.
3The first issue to consider is whether the gun and/or the cocaine should be excluded from evidence pursuant to s. 24(2) of the Charter. These are my reasons on this preliminary issue.
The Evidence
The Crown’s evidence regarding the events on August 17, 2017
4On August 17, 2017, at 6:00 p.m., Tristan Armstrong, a “Black” man, was driving along Bayly Street in Pickering, when he was observed by Detective Constable Matkar, who was parked on the side of the road. Armstrong was driving a new white Toyota Rav4 with tinted back seat and rear windows. Matkar, who described himself as a “person of colour” other than “Black”, was measuring speeds of passing motorists that day and testified that Armstrong was traveling above the speed limit. Matkar followed Armstrong in his marked cruiser as Armstrong turned onto Liverpool Drive. Once both vehicles were on the bridge over Highway 401, Matkar directed Armstrong to pull over. Armstrong complied and Matkar pulled in behind. Before getting out of his cruiser, Matkar did a license plate check on Armstrong’s vehicle. The check raised no issues.
5When Matkar approached Armstrong’s vehicle on foot, he approached the passenger side, since the driver’s side door was close to a live lane of traffic during a busy rush hour. As he approached, Armstrong wound down the passenger side window. Matkar informed Armstrong that he was speeding, and in particular that he had been travelling 82 km/h in a 60 km/h zone. He asked for Armstrong’s license, vehicle ownership and registration. Armstrong provided his license, but informed the officer he would need to contact his girlfriend, the registered owner of the vehicle, to locate the ownership and registration paperwork.
6During this initial encounter, Matkar noted a “strong” smell of fresh (not burnt) marijuana and saw fine marijuana shake on the lid of a Tim Horton’s coffee cup, in the driver’s cupholder. Matkar understood that based on those two observations he had the authority pursuant to s. 12 of the Cannabis Control Act (CCA) to search Armstrong and the vehicle to ensure that Armstrong was not driving with readily available marijuana.
7Matkar did not initially inform Armstrong of his observations since he wanted to do a license check before tipping Armstrong off about the possible search. He explained to the court that when he had stopped a vehicle on a prior occasion and informed the driver of his intent to do a search pursuant to s.12 of the CCA, the driver drove away as he went to do the license check in his cruiser. The driver in that earlier encounter apparently had had accessible cannabis and thus, his driving away raised public safety concerns. After that prior stop, Matkar decided not to inform drivers of his intent to do a CCA search until after he did the license check and was prepared to start the search.
8Matkar went to his vehicle to do the license check, leaving Armstrong alone in the Rav4 to call his girlfriend for assistance in finding the vehicle paperwork. Nothing out of the ordinary was learned from the license check. When Matkar returned to Armstrong’s vehicle, he still smelled the same strong odour of marijuana. He informed Armstrong of his observations and gave Armstrong a short lesson on the legal limits of having marijuana in a car while driving. He directed Armstrong to exit the vehicle. Armstrong initially protested and indicated he was in a hurry, but he then complied when Matkar insisted a search was going to be done.
9Matkar met Armstrong at the front of Armstrong’s vehicle to do a pat down search. He started at the top of Armstrong’s head and got down to the torso, when Armstrong took a quick step towards the live lane of traffic. It appeared to Matkar as if Armstrong was going to dart into traffic to escape. He grabbed Armstrong’s arm and pulled him back towards the vehicle and put one arm around Armstrong in an attempt to gain control of him.
10Armstrong flailed his arms and legs. Matkar was able to pin him against the front of the Rav4. In the midst of the struggle, Matkar asked why Armstrong was trying to flee. Armstrong responded, “I have coke and a gun”. Since Armstrong did not specify where, Matkar was unsure if the items were on Armstrong personally or in the vehicle. Matkar feared for his safety. Upon hearing the utterance, Matkar, while still pinning Armstrong against the vehicle, radioed for backup. The struggle between them continued until Armstrong eventually calmed down. Throughout the struggle Matkar yelled at Armstrong that he was under arrest and directed him to stop moving. Matkar did not specify the basis for the arrest.
11Soon after Armstrong calmed down, Police Constables Lang and Bustard, who both are on the same police platoon as Matkar, arrived on scene in two separate vehicles. They were both finishing their 6:45 a.m. to 6:45 p.m. shift and accordingly, at the time of Armstrong’s request for assistance, they were at the police station, 19 Division, preparing to leave for the day. The station is one major city block away from the location of the arrest. Lang and Bustard both estimated it would have taken them from one to three minutes to travel from the station to Matkar’s location with their sirens and lights on.
12As Lang ran to assist Matkar, Bustard ensured there were no other occupants in Armstrong’s vehicle, the white Rav4. Although Bustard opened both the front and back doors to the vehicle, he did not recall an odour of marijuana.
13After running across two lanes of traffic, Lang grabbed Armstrong’s arm to allow Matkar to put Armstrong in handcuffs. Once the handcuffs were on, Lang held one of Armstrong’s arms while Matkar finished his pat down search. Matkar located a small amount of crack cocaine in one pocket and cash in Armstrong’s other pants’ pocket. Lang did not notice the discovery of the cocaine, since he was focused on ensuring there were no external dangers. With respect to the cash, Matkar passed it to Lang to hold, while he completed the pat down search.
14After the pat down search, Matkar accompanied Armstrong to his cruiser and placed him in the back seat. Lang returned the cash to Matkar, as he (Matkar) sat down in the front seat of his cruiser, where he remained for a few minutes. It is unclear what, if anything, was discussed between Matkar and Armstrong during those few minutes.
15When Matkar got out of the police vehicle, he took some time to catch his breath and calm down from the struggle. At that point, acting Sergeant Beline arrived on scene. He described Matkar as “hyper” and breathing quickly. Two more police officers, Police Constables Thomas and Vavasour, arrived soon thereafter.
16With Armstrong secured in the back seat of his cruiser in handcuffs, Matkar searched the white Rav4. According to his testimony, he was acting pursuant to his authority under s. 12 of the CCA. At that point, he noted the marijuana on the Tim Horton’s cup lid was still there, and saw further bits of shake in the front foot bed of the car. He testified that the shake was too fine to collect in an evidence bag. He admitted that he could have seized the entire cup or the lid. He did not explain why he failed to do so. He opened the centre console and noted that buried “very deep” in the compartment, there was what appeared to be cocaine in a resealable bag. He removed the bag of powder from the console and dumped it into the back seat, which he had not yet searched. Matkar agreed that it would have been better had he not put the cocaine in the back seat, since his actions could possibly have contaminated an area he had not yet searched, and since he could have left the cocaine where he found it for the scenes of crime officer (SOCO) to photograph.
17Matkar then searched the back seat of the Rav4. He found a champagne bottle in a rear foot bed and handled it. It had a gold seal over the top of the cork and down the neck. According to Matkar’s evidence, he believed after a quick look at the bottle that it was unsealed.
18In the back seat, Matkar also located a black Nike fanny pack. He testified the fanny pack was partially open and that what appeared to be the end of a handle of a black handgun was protruding from the bag. He was shown photos taken by the SOCO officer after he completed his search and he indicated that none of them reflected how he observed the end of the firearm.
19Upon locating the firearm, Matkar sought the assistance of a SOCO officer. Vavasour came to assist. Well, to be more precise, Vavasour was on scene at that point, and he returned to 19 Division to retrieve his SOCO equipment and then came back to the scene once again.
20At the moment the gun was found, there were a total of six officers on scene (Matkar, Lang, Beline, Bustard, Thomas and Vavasour) and six police vehicles. Armstrong was still handcuffed in the back seat of one of them. According to Lang, Armstrong had been handcuffed in that back seat for just under ten minutes at the point the gun was located. Lang left the scene after hearing that Matkar had found a gun. On route to his cruiser, Lang passed by the Rav4 and saw the butt end of a gun protruding from the fanny pack. He was unsure if he saw it through an open or closed door or window. The evidence suggests at least the passenger side front window would have been wound partway down at that point. Similar to Bustard, Lang did not recall smelling marijuana.
21After radioing for a SOCO officer, Matkar returned to his cruiser and informed Armstrong, for the first time, of the charges he was facing and gave him his rights to counsel. The charges included possession of a firearm, possession of crack cocaine for the purposes of trafficking, operating a motor vehicle with an open container, speeding, and resisting arrest. Matkar then took Armstrong to the station, 19 Division.
22Acting Sergeant Beline waited for Vavasour to return to the scene. He directed Vavasour as to what photos should be taken. Vavasour started with photos of the outside of the vehicle, which revealed that the passenger side window was still wound partway down. After the external photos were complete, Vavasour took photos of the interior of the Rav4. The Nike bag was photographed in the back seat. It was then moved out of the vehicle and photographed on the ground with its contents displayed. The Nike bag was given to Police Constable Thomas to bring to 19 Division. The vehicle was then towed to the same station and Vavasour went to 19 Division as well.
23At the station, Thomas met another officer, Detective Constable Krivokapic, who worked in the Guns and Gangs Unit. Thomas handed Krivokapic the Nike bag. Krivokapic removed the gun and ammunition and returned the Nike bag to Thomas. Krivokapic put the firearm in a sealed box to send away for testing. Krivokapic also directed Vavasour to take further photos of the contents of the vehicle. One of the photos taken at the station showed trace amounts of marijuana shake on the floor of the vehicle between the driver’s side door and the driver’s seat. Krivokapic described the search as one incident to arrest.
24Beline, Thomas, Vavasour and Krivokapic were unable to corroborate Matkar’s evidence that there was a strong smell of marijuana. In fact, none of them recalled smelling any cannabis.
The March 17, 2017 Incident
25The Defence introduced, through cross-examination of Crown witnesses, evidence of a prior incident involving both Armstrong and Lang. Five months prior to the allegations before the court, Lang was on patrol in Durham when he was flagged down by a man on foot. Lang pulled over and the man exclaimed that the ‘N -word’ (referring to a Black man) driving the nearby white Rav4 had threatened him with a gun. The man pointed out the Rav4, which Armstrong was driving. Lang believed the complainant and drove noticeably quickly to catch up with Armstrong in his marked police vehicle.
26Although Lang did not have lights or sirens on and did not signal for Armstrong to stop, Armstrong abruptly pulled over to the side of the road. Lang pulled in behind him. Armstrong got out of his car and started to approach Lang’s vehicle. Even before Armstrong had opened his door to get out, Lang had drawn his firearm. Lang directed Armstrong to get on the ground. Armstrong was completely compliant. Lang handcuffed Armstrong and escorted him to his cruiser. Armstrong informed Lang that there was no firearm and that it had been a simple road rage incident between him and the man on foot.
27Lang spoke to the original complainant again, who changed his story and claimed that there was no firearm, only the threat of a firearm. Lang had a recording of the original allegations given by the complainant and verified that the man had in fact changed his story. No charges were laid.
The Issues
28The Defence submits that his constitutional rights were violated as follows:
(i) His right against arbitrary detention, as protected by s. 9 of the Charter, was violated at the time his vehicle was pulled over;
(ii) His right against unreasonable search and seizure, as protected by s. 8 of the Charter, was violated when he was asked to step out of the vehicle to facilitate a search pursuant to the CCA, as Matkar did not have grounds to do a CCA search; and
(iii) His right to be promptly informed of the reason for his arrest or detention, and his right to retain counsel without delay and to be informed of this right, under ss. 10(a) and 10(b) of the Charter, were violated at multiple stages during the stop.
Was Armstrong Arbitrarily Detained Contrary to S. 9?
29Pursuant to s. 9 of the Charter, “everyone has the right not to be arbitrarily detained or imprisoned”. Armstrong submits his s. 9 rights were violated. He bears the burden of proving on a balance of probabilities that there was not a valid basis for the stop. He submits that contrary to Matkar’s evidence, Armstrong was not pulled over solely because he was speeding. Instead, he was pulled over because:
(1) Lang directed him to pull Armstrong over;
(2) Matkar observed the driver of the white Rav4 was Black, and it was a stop based on racial profiling; OR,
(3) Armstrong was stopped because he was speeding, but the colour of his skin played a role in Matkar’s decision to pull his vehicle over, rather than another speeding vehicle.
30I consider each of these three submissions in turn.
(1) The Defence theory that Lang directed Matkar to pull Armstrong over
31The Defence asks the court to find that Lang directed Matkar to pull Armstrong over, based on the evidence that Lang and Matkar work together on the same platoon, that Lang pulled Armstrong over only five months earlier and that Lang arrived on scene less than five minutes after Matkar’s initial request for assistance.
32However, the evidence does not support a finding that Lang directed Matkar to pull Armstrong over. There is no evidence the two of them communicated that day prior to the stop. The Defence provided a printout of the police activity surrounding the stop, known as an ICAD report, which does not support the Defence theory. Perhaps most importantly, there is no evidence that would support a finding that Lang had a motive to pull Armstrong over after the earlier stop. Lang’s uncontradicted evidence was to the effect that Armstrong was nothing but cooperative when he was pulled over in March, 2017, and, if anything, the evidence showed that Lang realized that Armstrong had been falsely accused of a serious offence and treated unfairly. Finally, although Lang arrived on scene quickly, there is no evidence to suggest that it is suspicious that he was nearby at the time the call came through. His shift was close to finished and it therefore makes sense that he was at 19 Division, one major block away from the stop, when Matkar radioed for assistance. There is therefore no evidence to find Lang directed Matkar to initiate the stop.
33I accept that there are reasons to be suspicious of Lang’s evidence. First of all, he implied that he glanced into the vehicle, either through an open door or through closed tinted windows, and saw the butt end of the firearm. I agree with the Defence that it would have taken more than a glance; it would have taken a concerted look to see the small end of the gun protruding from the Nike bag. I also find it suspicious that Lang did not recognize Armstrong. It strikes me that drawing his firearm in what he obviously perceived to be a potentially life-threatening situation was something he would have remembered and thus, he was likely to recognize Armstrong upon arriving on the scene in August. However, I have no evidence as to how often Lang drew his firearm, nor any evidence regarding how many life-threatening situations he encountered in the five intervening months. I therefore find there was some suspicious aspects to Lang’s evidence, but I cannot rely on those aspects to find that Lang directed Matkar to make the stop. Moreover, the fact that Lang in essence contradicted Matkar’s evidence regarding whether there was a strong smell of marijuana, is fairly convincing evidence that Lang and Matkar did not collude.
34I do not accept that Lang was in any way involved in the decision to pull Matkar over.
(2) The Defence theory that Armstrong was pulled over because he was Black
35The second theory of the Defence is that Armstrong was not in fact speeding, but was pulled over solely because of the colour of his skin. I accept that there is no conclusive evidence that Armstrong was speeding. However, Matkar’s testimony that he was speeding stands uncontradicted. Generally, Matkar came across as credible: he readily acknowledged that there were inconsistencies between his preliminary hearing testimony and his trial testimony; aside from those minor inconsistencies, his evidence was internally consistent; he offered information that harmed the strength of his evidence; and I accept the oral submissions of Crown counsel that his police record supports a finding that he is a principled officer.
36The Defence submits that it is implausible that the speed measuring device could not print out a record of Armstrong’s speed. However, Matkar’s evidence on this issue was not only uncontradicted, but it was corroborated. Lang testified that the speed measuring device Matkar was using to identify the speeds of the passing vehicles, called a LIDAR gun, had no ability to save or record the speeds of the passing cars. Both officers testified that during a motor vehicle stop, they were able to show motorists the speed they were travelling at, on the LIDAR gun itself (a practice they both did on occasion but not regularly), but the only way to maintain a record of the motorists’ speed for the long term, was for the officer to manually make a record. In the circumstances, I cannot accept the Defence position that Matkar was lying when he said the LIDAR gun cannot produce a printout of Armstrong’s speed.
37Without any evidence to suggest that Armstrong was not speeding, it would be pure speculation to find that he was not.
(3) The Defence theory that Armstrong’s skin colour played a role in the decision to pull him over
38The Defence further theorizes that Armstrong’s skin colour factored into Matkar’s decision to pull him over for speeding. If Armstrong’s skin colour played any role in Matkar’s decision to stop him, even if Matkar had a valid basis to stop him for speeding, the stop would be arbitrary: Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (C.A.), at paras. 38-39; R. v. Sitladeen, 2021 ONCA 303, at para. 52.
39In R. v. Brown (2003), 64 O.R. (3d) 161 (C.A.), Morden J.A. emphasized that in assessing the merits of a racial profiling allegation such as this, judges "must be scrupulously aware of the need to maintain the public confidence and the ability of the Courts to hear and determine such applications fairly": at para. 50. He articulated the onus on the accused as follows, at paras. 44-45:
A racial profiling claim could rarely be proven by direct evidence. This would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop a motorist. Accordingly, if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence.
The respondent submits that where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling. I accept that this is a way in which racial profiling could be proven. I do not think that it sets the hurdle either too low (which could be unfair to honest police officers performing their duties in a professional and unbiased manner) or too high (which would make it virtually impossible for victims of racial profiling to receive the protection of their rights under section 9 of the Charter).
40More recently in R. v. Sitladeen, Feldman J.A. clarified that the trial judge does not need to find that an officer lied in order to find there was racial profiling. An officer may subconsciously consider race in deciding to pull a driver over, such that the officer is not lying when he testifies race did not play a role, but simply mistaken. Feldman J.A. emphasized in para. 54 of Sitladeen that judges need to consider this possibility of a subconscious bias:
The matter becomes more complicated when the officer is unaware that he was influenced by race because of unconscious bias. The officer may not be consciously lying about his motivation, but that does not mean he did not unconsciously engage in racial profiling. It is the role of the trial judge in such cases to consider all the circumstances that led to an accused's detention and/or arrest and to determine whether they correspond to the phenomenon of racial profiling, as understood in the social science literature, the reports of inquiries into race relations with police, and the case law. The trial judge can then decide whether those corresponding circumstances form a basis to infer that the record is capable of supporting a finding that the stop was based on racial profiling, contrary to the evidence of the officer. Ultimately, to reach a conclusion about racial profiling, the trial judge is not required to find that a police officer who testifies that race played no role in the decision to detain or arrest was lying. [Footnotes omitted.]
41Matkar explicitly denied that race played any role in his decision to stop Armstrong, and in fact testified that he did not know what the driver of the Rav4 looked like until after the vehicles were stopped on the side of Liverpool Drive. The Defence submits that it is unlikely that Matkar did not see the driver when he pulled Armstrong over, as the driver should have been in his peripheral vision when Matkar was measuring the car’s speed. Matkar testified that he was focused on finding a bumper of a vehicle, in the series of vehicles passing him by, that he could point his measuring device at without obstruction. And accordingly, he did not see the driver. This evidence seems plausible to me. Moreover, as emphasized by the Crown, the speed measuring device had a scope and therefore it is possible, although unclear from Matkar’s evidence itself, that Matkar was looking through a scope when he measured Armstrong’s speed. If that was indeed the case, there is no question he would not have seen the driver when he measured the vehicle’s speed. It is difficult for me to find based on the evidence presented, that it is likely that Matkar saw Armstrong before he directed Armstrong to pull over.
42As I discuss later, there are reasons to question the reliability of Matkar’s evidence. Thus, it is quite possible that Matkar saw Armstrong before deciding to pull him over and that Armstrong’s skin colour played a role in that decision. However, the burden on the Defence is higher than showing it is quite possible. Armstrong has not met his onus in demonstrating that s. 9 of the Charter was violated.
Was There an Unreasonable Search or Seizure Contrary to S. 8?
43Armstrong further submits that his rights under s. 8 of the Charter, which ensures that “everyone has the right to be secure against unreasonable search or seizure”, were violated. Although the accused has the onus of proving Charter violations generally, where the search is not supported by a warrant, it is presumptively unreasonable and the onus is on the Crown to prove no s. 8 rights were breached. To establish that the search was reasonable, the Crown must prove on a balance of probabilities: (1) that the search was authorized by law, (2) that the authorizing law was itself reasonable, and (3) that the authority to conduct the search was exercised in a reasonable manner (R. v. Cole, 2012 SCC 53 at para. 37).
44Matkar cited s. 12 of the CCA as the sole basis to support his grounds to search both the vehicle and Armstrong himself. The section reads:
12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.
(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.
45Matkar cited two observations to support his reasonable grounds to believe cannabis was in the car: a strong smell of marijuana, and seeing fine marijuana shake on the lid of the Tim Horton’s cup. As I already noted, Matkar came across as credible and, in accordance with Crown submissions, there is reason to find he is a principled officer.
46Having said that, there are serious issues with his testimony regarding the presence of marijuana. He testified that he saw marijuana shake on the Tim Horton’s cup lid at the time of the initial stop and again when he thoroughly searched Armstrong’s vehicle. His evidence is challenged by the following:
(i) According to Matkar’s evidence, he was acting pursuant to s. 12 of the CCA when he did his eventual search of the car and thus, was specifically looking for marijuana. However, the only marijuana he found was the shake on the Tim Horton’s cup lid. Despite the fact that no one entered the vehicle after his search and before the photos were taken, there was no shake on the cup lid in the photos;
(ii) Although the purpose of the search was to find cannabis, Matkar did not seize any marijuana, the Tim Horton’s cup or the lid. He could not explain his failure to seize the cup or lid;
(iii) Matkar explained that he did not seize the marijuana itself because it was too fine to pick up. If there had been fine marijuana on the lid as described, it is unlikely that it would have been blown off the lid by the wind, without leaving a trace of shake on the cup;
(iv) Despite the importance of the marijuana to the search, Matkar did not instruct Vavasour to take any photos of the cup, the lid or the marijuana;
(v) The vehicle was thoroughly searched by a combination of Vavasour, Beline and Krivokapic, such that they were able to find trace amounts of marijuana on the floor between the driver’s seat and the driver’s door. They found no other marijuana. It is arguably impossible that fine marijuana shake was blown off the lid of a cup sitting in the central console and landed at the foot of the driver’s side door, without leaving any marijuana between the two areas; and,
(vi) Matkar himself could not offer a theory to explain where the marijuana he saw may have gone.
47There are also reasons to doubt Matkar’s evidence that there was a strong odour of marijuana:
(i) Matkar admitted that the fine amount of marijuana he saw on the Tim Horton’s cup lid was not enough to produce the smell he smelled from the passenger’s side window. Yet when he searched the vehicle for marijuana pursuant to s. 12 of the CCA, he found no other cannabis;
(ii) A thorough search of the vehicle by a combination of Vavasour, Beline and Krivokapic only produced trace amounts of marijuana. Those trace amounts were at the foot of the driver’s side door, far from the passenger side door where Matkar first observed the smell;
(iii) Matkar’s evidence suggested that the smell did not dissipate. However, the passenger side window remained down throughout the incident, and yet no other officer on scene recalled a smell of marijuana. Even the officers who photographed the marijuana did not recall a smell; and,
(iv) Matkar could not explain where the marijuana was, that produced the odour that he smelled.
48Thus, aside from Matkar’s testimony, the evidence strongly weighs against a finding that there was marijuana shake on the Tim Horton’s cup lid or a strong smell of marijuana coming from the car.
49The question then becomes whether Matkar’s uncorroborated evidence outweighs the weaknesses. The answer to that question must be ‘no’, considering that Matkar himself admitted that one of his observations during that encounter was wildly inaccurate. He testified that after handling the champagne bottle, he believed it was unsealed. To clarify, his evidence was not that he believed the champagne bottle may have been unsealed, he believed it was in fact unsealed. The bottle had a gold seal over the top and down the neck. It appears to be obviously sealed from the photos and Matkar now concedes that it was. Significantly, this was not a tangential observation of Matkar’s; it formed the subject matter of a charge, as Matkar went as far as informing Armstrong that he was going to be charged under the Liquor Licence and Control Act with driving with readily available open alcohol.
50I cannot accept the Crown’s theory that Matkar’s observations are unreliable after the struggle with Armstrong, but not before, as a result of an increased stress level. There is no direct evidence to support this theory, and I am unable to draw an inference that Matkar was necessarily more stressed when he searched the Rav4, than he was when he initially decided to conduct a CCA search. I say this because when Matkar did his thorough search of the vehicle, Armstrong was handcuffed in the back seat of a police vehicle, there were six police officers on scene, and Matkar had already taken a moment to catch his breath and calm himself down. Whereas, when Matkar initially decided to conduct a CCA search, he was alone, close to a live lane of busy traffic, and was asking a male to step out of his vehicle so that he (Matkar) could conduct a search to determine if the male had committed an offence. It is unclear that the former situation is necessarily more stressful than the latter. Nor can I safely conclude that a police officer who believed an obviously sealed champagne bottle was unsealed, is an otherwise reliable observer, such that his evidence alone outweighs contradictory evidence.
51The evidence weighs in favour of finding that there was no marijuana on the Tim Horton’s cup and that there was no strong smell of marijuana coming from the vehicle. The Crown has failed to meet its onus of proving on a balance of probabilities that there were grounds to either search the vehicle or to ask Armstrong to step out of the vehicle, so that he could be searched.
52I need not go any further to find that Armstrong’s s. 8 rights were violated. However, I do take this opportunity to consider whether race played a role in this Charter violation, since this issue will be relevant in assessing whether the evidence should be excluded pursuant to s. 24(2). Assuming, without finding, that Matkar was mistaken about the existence of marijuana in the vehicle (rather than intentionally misleading the court), it would be naïve to find that race did not play a role in his mistake. At the moment Matkar made the observations of marijuana, there was no reason to suspect Armstrong of any wrongdoing. The database check of both Armstrong and the vehicle revealed nothing suspicious. Matkar agreed that there was nothing suspicious about how or where Armstrong was driving, aside from his speed and Armstrong’s speed itself was not excessively above the limit. In general, according to Matkar’s evidence, aside from seeing and smelling marijuana, there was nothing about the situation that raised his suspicions. Furthermore, Matkar did not suggest that anything unusual had happened prior to pulling Armstrong over that may have left him distracted. Yet Matkar formed wildly inaccurate observations. Matkar’s mistakes must have been informed by the circumstances, which included nothing objectively suspicious; instead they included the fact that a Black man, in a new white vehicle was travelling above the speed limit.
53In finding that race played a role in his decision to search, I recognize that Matkar is a person of colour who denied having racist views. However, there was no evidence, nor could there have been any evidence, that Matkar did not harbour a subconscious bias.
54In accordance with the approach to the racial profiling issue espoused by Feldman J.A. in Sitladeen, I find that the circumstances in this case suggest, when considered in the context of the social science literature, the reports of inquiries into race relations with police, and the case law, that the decision to search Armstrong and the vehicle were influenced either consciously or subconsciously by racial profiling. I do not make this finding lightly, but at the same time, the burden on Armstrong [1] is not proof beyond a reasonable doubt, but is on a balance of probabilities (Peart v. Peel (Regional Municipality) Police Services Board (2006), 217 O.A.C. 269 at para. 140).
Was Armstrong Properly Afforded His Ss. 10(a) and 10(b) Rights?
55The Defence further argues that Armstrong’s rights under ss. 10(a) and (b) were violated at several stages of the encounter. Pursuant to those subsections, “everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; and (b) to retain and instruct counsel without delay and to be informed of that right”.
56With respect to s. 10(a), police must inform an individual “immediately” of the reasons for a detention, and those reasons must provide sufficient detail such that the individual can make an informed decision as to whether he or she should exercise their s. 10(b) rights to counsel (R. v. Suberu, 2009 SCC 33, at para. 42, R. v. Nguyen, 2009 ONCA 49, at para. 18-20). However, this duty to inform without delay is “subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter” (Suberu, para. 42).
57Armstrong submits that immediately upon forming the grounds to do the CCA search, Matkar was required to inform him of his intention to search, and Matkar’s decision to delay giving Armstrong that information resulted in a violation of Armstrong’s s. 10(a) rights. At the beginning of their first interaction, Matkar informed Armstrong of the reason for the initial detention, namely that Armstrong was travelling at 82 km/h in a 60 km/h zone. During that initial discussion, Matkar decided he was going to search Armstrong’s vehicle pursuant to s. 12 of the CCA, but he did not inform Armstrong of that intent until after he did the license check in his cruiser. Matkar explained that he waited to ensure that Armstrong did not drive away with readily available cannabis while he was conducting the check. There was therefore a brief suspension of Armstrong’s right to be informed of the reasons for his detention, but I agree with Crown counsel that the brief suspension was justified on the basis of public safety.
58Armstrong further argues that his s.10(a) rights were violated again when he was handcuffed and placed in the police cruiser without being informed of the reasons why. Matkar informed Armstrong that he was under arrest when Armstrong announced he had a gun and cocaine. At that point, Matkar had reasonable and probable grounds to arrest. Although Armstrong should have been able to deduct the basis for his arrest when he was put in handcuffs, Matkar was required to inform him of the reasons. Armstrong was entitled to know his jeopardy and entitled to sufficient information to decide whether to exercise his rights to counsel. He was not informed of the basis for the arrest for another ten minutes, while he sat in the back of Matkar’s cruiser handcuffed. There was no basis to justify delaying providing Armstrong with such information. However, at the same time, I recognize that since the reasons for the detention should have been obvious to Armstrong, this violation would not on its own play a large role in the s.24(2) analysis (R. v. Roberts, 2018 ONCA 411, at paras. 73 and 78, R. v. Suberu, 2007 ONCA 60, at footnote 1).
59As for s. 10(b), Armstrong submits that his rights were violated as of the moment he was pulled over to the side of the road. Although it is clear that he was detained as soon as he stopped, it is accepted that s. 10(b) rights are legally suspended for Highway Traffic Act (HTA) stops, which would include stops for speeding. Doherty J.A. articulated this principle in R. v. Harris, 2007 ONCA 574, at par. 47:
As Mr. Dawe acknowledges in his factum, it was accepted at trial that the police are not required to give a detained person his s. 10(b) rights during a brief lawful Highway Traffic Act roadside stop. That concession was not qualified on appeal. I think the concession is consistent with those cases that hold that the exercise of the rights guaranteed by s. 10(b) is incompatible with the brief roadside detention contemplated by a stop made for road safety purposes: see R. v. Orbanski (2005), 2005 SCC 37, 196 C.C.C. (3d) 481 (S.C.C.); R. v. Ratelle (1996), 105 C.C.C. (3d) 58 (Ont. C.A.); R. v. Saunders (1988), 41 C.C.C. (3d) 532 (Ont. C.A.).
Also see: R. v. Suberu (2009), at para. 42
60I therefore conclude that Armstrong’s s. 10(b) rights were not violated at the outset of the stop.
61Armstrong further submits that his s. 10(b) rights were violated as of the moment he was not only detained under the HTA, but was also detained pursuant to the CCA. In response, Crown counsel argues that s. 10(b) rights are suspended not only for HTA stops, but for searches conducted pursuant to s. 12 of the CCA. The few courts that have considered the issue have agreed that s. 10(b) rights are suspended on the basis that the exercise of s. 10(b) rights is incompatible with the powers under s. 12: R. v. Tully, 2022 ONSC 1852, at para. 151-156; R. v. Grant, 2021 ONCJ 90, at para. 127-131; R. v. Kanneh, 2022 ONSC 5413, at paras. 63-72.
62Petersen J. found in Kanneh that the length of a legal suspension of s. 10(b) rights will vary from case to case. Following the language in Suberu, she concluded that the suspension of s. 10(b) for a CCA search is only reasonable as long as it can be justified for either officer or public safety, or for the operational requirements of stopping vehicles for road safety purposes. I add that in assessing how long a suspension of s. 10(b) rights is necessary, the court must keep in mind that it is possible that the informational rights under s. 10(b) may feasibly be provided earlier in the detention, than when the implementational rights under s. 10(b) may feasibly be provided (R. v. Suberu, at para. 38).
63For the purposes of this case, I need not specifically consider whether s. 10(b) rights are suspended for CCA searches and to what extent. It is apparent in this case that as of the moment Armstrong is in handcuffs and in the control of two police officers, Matkar and Lang, a suspension of s. 10(b) rights could no longer be justified. At that point, there are no safety concerns or operational requirements relating to stopping vehicles that would justify delaying s. 10(b) rights. Armstrong was in handcuffs and sitting in the police vehicle alone for close to ten minutes, without even being informed that he has the right to contact counsel (the informational right under s. 10(b)). Knowledge in itself is power, as emphasized by Doherty J.A. in R. v. Rover, 2018 ONCA 745, at para. 45, the “psychological value of access to counsel without delay should not be underestimated”.
64It is difficult to conceive of a situation in which an individual, who is the only possible threat on scene and who is handcuffed and confined in a police vehicle, is not constitutionally entitled to know his rights to counsel. Armstrong’s rights to counsel were violated.
Should the Evidence Be Excluded Pursuant to S. 24(2)?
65Pursuant to s. 24(2), evidence that is obtained in a manner that infringes the Charter must be excluded if its admission would bring the administration of justice into disrepute. I have already found that Armstrong’s rights under ss. 8 and 10 of the Charter were violated, and as a result police located and seized cocaine and a loaded, restricted firearm. There is no question the proposed evidence was “obtained in a manner that infringes the Charter”.
66The issue for exclusion in this case turns on whether the admission of the evidence would bring the administration of justice into disrepute. In assessing the impact of the violations on the integrity of the justice system, I must consider three factors, known as the Grant factors: (i) the seriousness of the police conduct; (ii) the seriousness of the impact of the violation on Armstrong’s rights; and (iii) society’s interest in seeing the matter tried on its merits (R. v. Grant, 2009 SCC 32). The analysis under each of these factors must be focused on the long-term public confidence in the administration of justice, and not focused on punishing the police misconduct or compensating the accused in this particular case.
67The first factor, the seriousness of the state conduct, focuses on whether and to what extent the court needs to dissociate itself with police actions. As stated by Doherty J.A. in R. v. Blake, 2010 ONCA 1, at para. 23, “the graver the state’s misconduct the stronger the need to preserve the long-term repute of the administration of justice by disassociating the court’s processes from that misconduct”. In the case at bar, there were no grounds to support a CCA search, and no grounds to direct Armstrong out of the vehicle for a pat down search. As noted above, the decision to search was influenced by racial profiling. This is indeed conduct that the court must disassociate itself from (R. v. Le, 2019 SCC 34 at para. 78). It is precisely this type of conduct that negatively impacts the integrity of the administration of justice. It is this type of conduct that legitimately creates distrust of the police in marginalized areas and directly contributes to the racism that plagues our communities.
68In addition to the s. 8 issues, there were also violations of ss. 10(a) and 10(b). It seems from Matkar’s testimony that he is unaware of the requirement to inform an individual of the reason for their detention or of the need to provide them with their rights to counsel before confining them alone in a police vehicle handcuffed. The acting Sergeant for the day similarly seemed to have little concern for ensuring that Armstrong’s constitutional rights were being respected. There were six officers on scene and yet not one ensured that Armstrong’s rights were not being violated. Although these officers were not acting in bad faith in relation to the s. 10 violations, ignorance of an accused’s constitutional rights cannot equate to acting in good faith.
69Furthermore, the firearm and cocaine were not discoverable without violating Armstrong’s rights. In the recent case of R. v. McColman, 2023 SCC 8, the Supreme Court suggested that this factor alone placed the conduct further down the seriousness scale.
70Overall, I find that the first Grant factor weighs heavily in favour of exclusion. Simply put, the court cannot be seen as being complicit in or condoning the police conduct in this case.
71With respect to the second Grant factor, the seriousness of the impact on the accused’s rights, it focuses on the concern that admitting the evidence would send a message to the public that “Charter rights are of little actual avail to the citizen” (R. v. McColman, at para. 66). The question for the court is where the violation falls on the scale that spans from “fleeting and technical” breaches to ones that are “profoundly intrusive” (R. v. Grant, at para. 76).
72The Supreme Court has found that a search of a vehicle without any reasonable grounds is more than a trivial invasion of privacy (R. v. Harrison, 2009 SCC 34, at para. 31). One of the overarching principles entrenched in our Charter is the principle that citizens have the right to be left alone. Police cannot invade an individual’s private space without reason. On the other hand, driving is a privilege, drivers know they are subject to stops pursuant to the HTA to ensure road safety and the right to privacy in vehicles is somewhat reduced.
73In addition to the s. 8 violation, the constitutional rights Armstrong should have enjoyed upon detention, as protected by s.10, were ignored. He was handcuffed and confined in the back of a police vehicle without being provided any information regarding the basis of his detention or his rights. The Crown emphasizes that there was at most ten minutes during which he was confined alone before he was given his s. 10 rights. However, a minute can feel like an eternity in the eyes of an individual confined alone in a police vehicle, handcuffed, surrounded by several other police vehicles and police officers. The s. 10 rights exist in part to level the playing field between the state and the citizen to some extent; since information in itself is power to an accused, any delay in affording an accused their s. 10 rights may be serious. Indeed, in the recent case of R. v. Davis, 2023 ONCA 227, Paciocco J.A. upheld the trial judge’s finding that an eight-minute delay in providing an accused the informational rights under s. 10(b), in itself was sufficiently serious to require the exclusion of the breath test in that case.
74Although the police conduct was not “profoundly intrusive”, its impact on Armstrong’s ss. 8 and 10 rights was beyond trivial.
75The cumulative effect of the first two Grant factors weighs heavily in favour of exclusion. The question becomes whether the third factor, society’s interest in seeing the case litigated on its merits, outweighs the cumulative weight of the first two (R. v. Lafrance, 2022 SCC 32, at para. 90). Key considerations on the third factor include the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offence. There is no question that these factors all weigh heavily in favour of admission. The gun and drugs are reliable evidence, they are pivotal to the Crown’s case and the offences before the court are unquestionably serious.
76However, when I consider the seriousness of the police conduct in this case and the fact that there is a “vital interest in maintaining a justice system that is above reproach” (McColman, at para. 70), the interest in seeing the case tried on its merits does not outweigh the cumulative weight of the first two factors. The Defence has met its onus in showing that the evidence must be excluded in order to maintain the public’s confidence in the administration of justice.
77The gun, the ammunition and the cocaine are inadmissible at the trial proper.
The Honourable Madam Justice Catriona Verner
Released: May 30, 2023
1As mentioned, I found there to be a s. 8 violation without consideration of the racial profiling issue. This issue is only being considered for the purposes of the s.24(2) analysis. Accordingly, the burden is on the Defence.