BRACEBRIDGE COURT FILE NO.: CR-23-001-00 DATE: 20240422 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – NICHOLAS DESLANDES Applicant
Counsel: Kimberly Miles, for the Crown Christian Angelini, for the Applicant
HEARD: March 18, 19 and April 12, 2024
APPLICATION UNDER CHARTER s. 8, 9 and 10
REASONS FOR DECISION
HEALEY, J.:
Nature of the Application
[1] The Applicant, Nicholas Deslandes, is charged with two counts of possession of a Schedule 1 substance for the purpose of trafficking (cocaine and fentanyl), two counts of possession of Schedule 1 substances (oxycodone and MDA), two counts of possession of property obtained by crime, and driving while prohibited.
[2] This is a traffic stop case. The Applicant asserts that an officer followed him through the streets of Huntsville because she had seen that he was Black and considered his driving to be “suspicious”. The officer’s excuse of detaining him due to his driving behaviour was a ruse to continue to investigate her suspicions of criminal activity. She had no legitimate intention to detain him for road safety purposes pursuant to the Highway Traffic Act, R.S.O. 1990, c. H. 8 (“HTA”).
[3] The officer detained the Applicant in a parking lot, where he was investigated and ultimately arrested for driving while prohibited. Searches of his person and vehicle incident to his arrest led to the seizure of cash, jewellery, and drugs, which led to him being charged with further offences.
[4] The Applicant further submits that the officer failed to advise him of the reason for his detention contrary to s. 10(a) of the Charter. She also began to question him about matters unrelated to road safety or driving behaviour before providing him with his right to counsel contrary to s. 10(b) of the Charter.
[5] The Applicant does not deny that he was driving while prohibited, or that the drugs and other items belonged to him.
[6] The Applicant applies for an order pursuant to section 24(2) of the Charter excluding evidence obtained by the police, alleging that it was obtained in violation of his rights under sections 8, 9, and 10 of the Charter.
[7] It was agreed by counsel that if the items seized following his arrest are excluded from evidence, acquittals should be entered on each count. Alternatively, if the evidence is not excluded, the court was invited to convict on each count.
[8] An oral ruling granting the application was delivered on April 15, 2024, with these reasons to follow.
Issues
[9] The issues to be decided are:
(a) Whether the detention arose from the officer legitimately using the authority granted by the HTA, or whether the HTA was being used as a pretext for investigating other speculative crimes. (b) Whether racial profiling played a role in the detention of the Applicant. (c) Whether the officer violated the Applicant’s s. 9 Charter rights. (d) Whether the officer violated the Applicant’s s. 10 Charter rights. (e) Whether the officer violated the Applicant’s s. 8 Charter rights. (f) In the event of a breach of a Charter right, whether the admission of the evidence would bring the administration of justice into disrepute, such that it should be excluded pursuant to s. 24(2).
Evidence
[10] The Applicant testified on this blended voir dire. The Crown’s only witness was Officer Shana Wickware, who performed the traffic stop.
Evidence of the Applicant
[11] On March 27, 2021, the Applicant was in Huntsville, driving a black Honda Civic. He was prohibited from driving, and had what he described as a large quantity of drugs in his possession. The Applicant’s skin tone is dark black.
[12] The Applicant testified that he was parked in a designated parking spot beside the westbound lane on Main Street West (“Main St.”) in Huntsville. He had parked in that spot overnight while staying with a friend.
[13] Main St. is a two-lane roadway, with one lane for westbound and the other for eastbound traffic.
[14] The Applicant pulled out of the parking spot to proceed westbound. There is a dispute in the evidence about whether he put on his left indicator to signal his intention before pulling into the live lane. This is a key conflict in the evidence, as Officer Wickware contends that the Applicant’s failure to do so formed the initial basis for the HTA stop.
[15] It is the Applicant’s evidence that he did use his indicator, as he was intent on following the rules of the road so that he would be as inconspicuous as possible. He did not want to draw attention to his vehicle because he was not supposed to be driving, and also because of the drugs.
[16] As soon as he pulled out, he noticed that there was a police car behind him at a distance that was “very far” away. He identified on a photo where the police car was when he first noticed it. He said that it was recognizable to him as a police car because it had “sirens on the hood”. He also saw that it was being driven by a police officer as it got closer.
[17] There is a dispute in the evidence about whether there was another car between the Civic and the police car. The Applicant says that there was.
[18] He continued driving for about ten seconds. He did not want to be going the same direction as the officer, so contemplated making a u-turn on Main St. He then decided to make a left turn into a plaza parking lot (the “first parking lot”) so that he could turn around and go the other direction. He put on his indicator to signal the left turn.
[19] There is an issue with respect to whether the Civic crossed the centre yellow line before signalling to turn into the first parking lot. The Applicant was uncertain but was fair in admitting that it was possible; he said that his front tire may or may not have touched the line, but he did not recall going into the eastbound lane or impeding eastbound traffic in any way. He was being careful, knowing that the officer was behind him.
[20] There is also a dispute about how close the police vehicle was to him when he turned into the first parking lot. The Applicant’s evidence is that the car in between them was about three car lengths behind him, and then the police vehicle was two car lengths behind that other vehicle. The Applicant said that he was keeping his eye on the police vehicle to track where it was going.
[21] After turning into the driveway to the first parking lot, he turned left in the lot, made a u-turn and brought the vehicle out so that it was facing Main St. Looking through his front windshield, the Applicant saw the police car continue to drive westbound. It kept going and the Applicant lost sight of it over a hill.
[22] It is the Applicant’s theory that Officer Wickware was able to see him through the Civic’s front windshield as he brought the car to face Main St., as the front windshield is not tinted. All of the other windows are tinted, including the back. His evidence was that the windows were not dark enough to prevent visibility for a person looking into the car.
[23] The Applicant then exited the first parking lot by turning right onto Main St., and continued until he came to the intersection of Centre St. He turned left at the intersection, proceeding northbound on Centre St. He did not see the police car at the time that he was turning. After about five seconds, he noticed the police car behind him again. There were no vehicles in between them.
[24] Approaching the intersection of Centre St. and West Rd., Centre St. is two lanes wide. The left is marked as a left turning lane and the curb lane is marked as both a through lane and a right turning lane. The Applicant was in the curb lane and signalled to turn right.
[25] After turning onto West Rd., the Applicant turned right into the first available parking lot and pulled into a parking spot (the “second parking lot”). The officer also turned into the parking lot and brought her vehicle to a stop perpendicularly behind the Civic. The Applicant says that she was close enough that he could not have backed out.
[26] The police vehicle’s lights were never activated during this route.
[27] After pulling in, the Applicant immediately exited his vehicle and popped his hood as though examining his engine. This was a ruse, he explained, to attempt to distract the officer in the hope that she would ask whether he needed help. He explained that he was hoping to avoid being asked other questions, and stated “with my skin colour, from previous experience, I did not want to be singled out.”
[28] There is a dispute in the evidence about whether the officer ever discussed his driving behaviour. The Applicant says that she did not accuse him of failing to signal or of committing a traffic violation, nor did the officer tell him why she was approaching to speak to him.
[29] According to the Applicant, Officer Wickware approached him and said “hey, what’s going on sir?” He told her that he was just having engine trouble. She then asked him a series of questions: where are you coming from, what’s your friend’s name, what’s Adam’s last name, where does Adam live, where did you travel from, what brings you to Huntsville, and how long have you been out here?
[30] The Applicant answered each of these questions, explaining “I felt that I had to, because of previous incidents. It only goes wrong if you don’t follow their orders.”
[31] After this exchange, Officer Wickware asked for his registration and licence.
[32] He said that he went into the glove compartment and produced a vehicle registration, which the officer noted was expired. He pretended to search for his driver’s licence, knowing that he could not produce one.
[33] Officer Wickware then asked for his name, and she signalled to him to accompany her to the police car. He stood outside while she sat in the passenger seat and made inquiries. She learned that he was a suspended driver. He was then arrested and put in handcuffs.
[34] Before his arrest for driving while disqualified, Officer Wickware never told him that she was investigating him for a crime or that he was under arrest.
Evidence of Officer Wickware
[35] At the time of testifying, Officer Wickware was in her fifteenth year of policing. On March 27, 2021, Officer Wickware worked for the Huntsville OPP detachment, and held the position of Acting Sergeant for a platoon assigned to general duties. That day, she was acting in a frontline capacity on general patrol. She was wearing a standard police uniform.
[36] Officer Wickware had been recently promoted to Acting Sergeant. Up until December 2020, she had been a member of the Muskoka Street Crimes Unit (“SCU”) for four years, responsible for investigating drug, firearm and property crimes.
[37] Officer Wickware has a practice of recording certain information at the beginning of her shifts, including the vehicle to which she is assigned. Each vehicle is assigned its own identification number. For the day in question, she recorded “1-052” in her notebook. As the Acting Sergeant, she was responsible for vehicle assignments and recognized 1-052 to be a blue Ford Taurus.
[38] The Ford Taurus was often used for traffic duties because it was unmarked. It had no indications of the OPP insignia. It had a long antenna on the rear for traffic enforcement and lights on the inside of the front and rear of the vehicle. A small black box sat on the dash, which was the in-car radar, and in the right-hand corner of the front windshield was a small, white antenna. She could not recall if there was a light attached to the driver’s side mirror but noted that most police vehicles were equipped with that light.
[39] This evidence differs from what Officer Wickware said at the preliminary hearing, which was that she was in a marked police cruiser. A few questions later she was asked at that hearing how it was marked, and stated that she had not made a note of how it was marked. When asked to explain this discrepancy at trial, she said that she could not explain why she did not look at the vehicle number to assist her recollection at the preliminary hearing.
[40] On the voir dire, Officer Wickware testified that she was in Huntsville, travelling on Main St., mentioning without prompting that it is a highway as defined in the HTA. It is a 50 km/hr speed zone in an area of mixed residential and business, with light traffic at the time. She was going westbound when she first observed the black Honda Civic. She again referenced the HTA without prompting, noting that the Civic was a motor vehicle as defined by that legislation. It was parked on the right-hand shoulder at 61 Main Street West, in front of a set of mailboxes and in a parking spot.
[41] As she was coming toward the Civic it caught her attention as it pulled out into the live lane because the driver failed to signal or yield to through traffic. There were no vehicles between her vehicle and the Civic when it pulled out. She thought that there were at least ten car lengths between them when it pulled into the lane.
[42] While the officer made a note about the failure to signal, there was no note about failing to yield. On cross-examination she agreed that the offence of failing to yield had not been committed, as she had no note that her driving behaviour had to change when the Civic pulled out. When asked why she embellished her evidence, her answer was that she did not intend to do so. However, she could not provide a sound explanation for why she had testified that the Applicant committed this HTA infraction.
[43] Officer Wickware observed that the vehicle proceeded slowly and slightly crossed the centre line, while failing to signal. It appeared to her that the driver was going to make a u-turn, and then came back into the lane. Under cross-examination she described the Civic’s speed as “extremely” slow, between 20 to 30 km/hr. She agreed that there is no HTA offence for breaking the centre line, and that the Civic was not interfering with any oncoming traffic.
[44] It appeared to her that the driver then decided to turn into a plaza. The vehicle continued slowly, and then put on its left turn signal and turned into a parking lot on the left-hand side of the road.
[45] Her first impression was that the vehicle was going to pull out again to go east on Main St., but then she saw that it was pulling into what she believed was a parking spot. She was already past the entrance to the parking lot when she made that observation. She continued driving westbound, with the intention to turn around at the next opportunity to see if the driver was still there.
[46] Her initial thought was that the driver may be lost, or possibly impaired. On cross-examination, she added that she also thought that the operator may be a suspended driver. She made a note that states “possible impaired/suspended driver. Unknown but acting suspicious.” She agreed that she thought the driving behaviour on Main St. was “very” suspicious.
[47] In deciding whether to stop a vehicle for possible impairment, she stated that it is the totality of all driving behaviour that informs that decision. Signs of impairment can be failing to use signals, failing to turn on lights, speeds - either too fast or slow - swerving over the centre line and appearing lost.
[48] There is a disagreement in the evidence about which parking lot the Applicant turned into. Officer Wickware maintained that it is not the one identified by the Applicant. I find that nothing turns on where the first parking lot was located, as there is no dispute in the evidence that it was on this stretch of Main St., somewhere west of where the Civic was initially parked.
[49] What is more significantly disputed is whether Officer Wickware could see into the Civic to observe the Applicant as he was in the first parking lot.
[50] The officer made a note that the windows were tinted “very dark.” In her testimony, she referred to them as being “extremely” tinted, a darker tint than permitted under the HTA. It was her evidence that the level of tint did not permit her to see into the vehicle.
[51] Her evidence is that as she passed the first parking lot, the vehicle had turned to the left and was facing eastbound, giving her a view of the side of the car. All that she could see was the silhouette of the driver but could not identify whether the driver was male or female. As she was passing the vehicle, she saw the silhouette of the driver’s head turn to look toward the roadway as she drove by. The driver appeared to be looking toward her.
[52] The officer testified that she was right behind the Civic when it began its turn into the first parking lot. When it was suggested that she was “up on his bumper” when he made that left turn, the officer first agreed that she was right behind the Civic by that point. Later she said that her vehicle was approximately two car lengths behind the Civic when it began its turn into the parking lot, which afforded her the opportunity to see the side of the vehicle once it was in the parking lot. It was when its front was pointed east that she could see the silhouette of the driver’s head turn to look in the direction of Main St.
[53] When asked why it was important to put in her notes that she could not tell if the driver was male or female, the officer said that she tries to put all of her observations in her notes, as this may become relevant if the driver failed to stop when being pulled over.
[54] Although she stated that she had authority at that point to stop the vehicle under the HTA, she wanted to continue her observations of the vehicle, so she pulled into the next business parking lot on Main St. and turned around. Initially, she testified that she missed the opportunity to follow the Civic into the first parking lot. Later, when confronted with her note that states “drive my vehicle out of sight of the suspect” she acknowledged that that is what she did before turning around. She denied any recall of doing that deliberately. Eventually she agreed that it was possible that she deliberately kept driving until she was out of the driver’s sight in order to let that person think she was gone.
[55] Officer Wickware denied that she got the impression that the driver was trying to avoid her. However, after being confronted with her note that states “suspect that vehicle driver waiting for me to leave area before driving again”, she agreed that she suspected that the driver was waiting for her to leave. This was based on the driving behaviour to that point. She said that both impaired and suspended drivers try to avoid police.
[56] By the time that she returned to the first parking lot the Applicant was gone. The officer caught up to the Civic at the intersection of Main St. and Centre St., in the left-hand turning lane. There was traffic in between them while waiting to turn, but not once she turned on to Centre St.
[57] She followed the Civic along Centre St. to the intersection of West Rd. and came up behind it in the curb lane. She testified that the driving behaviour again caught her attention. The Civic pulled up as though intending to turn right, again with no signal on, so she was not sure if it was going straight through the intersection. The right indicator was turned on, then off, and she made a notation that the vehicle stopped over the white line. The driver then put the right indicator back on and made a right turn when it was safe to do so. This was more evidence to her of suspicious driving behaviour.
[58] As they turned onto West Rd., she felt that this was a good place to make a traffic stop. Officer Wickware stated that she was stopping the driver initially because of the HTA offence of failing to signal. Just before the officer could activate her lights, the Civic turned into the first driveway on the right, into the second parking lot.
[59] She followed. The Civic immediately pulled into a parking space. The officer pulled her vehicle up behind it. Before she could park and exit, the driver was out of the car and had popped the hood. This was the first sight Officer Wickware had of the driver.
[60] At this point, the officer agreed that he was not free to leave.
[61] The officer testified that she approached the Applicant and told him that she was about to stop him for failing to signal, as well as driving behaviour that had caught her eye. However, during her cross-examination she said that she did not recall the first words out of her mouth when she approached.
[62] They began to chat. The Applicant was polite and friendly and told her that he was having engine troubles. Officer Wickware described this as a back-and-forth conversation. She was trying to garner as much information as she could to see if he was impaired. There were no signs of impairment. She did not ask the Applicant whether he had had any alcohol or other substance because she decided it was unnecessary, based on his behaviour.
[63] Office Wickware agreed that nothing in the Applicant’s remarks or the information that he gave her had anything to do with his driving behaviour. She began to believe that he was just lost, but his explanation of engine problems did not explain his driving.
[64] Her view was that he was initially offering her information about being up from the “city” and visiting his friend Adam to provide excuses for his driving behaviour. She asked for Adam’s last name, which the Applicant said he did not know, nor could he expand on how long he had been in Huntsville. His inability to provide those answers was noted by her and increased her suspicions.
[65] She next asked for his driver’s licence, registration and insurance. The Applicant could only locate an expired insurance slip in the glove box. The Civic was insured in a female’s name. He could not produce a driver’s licence, so she requested his name, date of birth and address.
[66] The officer then called in a request for police database inquiries. She learned that the Applicant was an accused waiting disposition for operation while prohibited, and that he had been convicted of impaired driving and had a suspended licence. At 11:40 a.m. she advised him that he was under arrest for operating a vehicle while prohibited.
[67] She testified that she had not performed any prior checks and had not run the Civic’s licence plate.
[68] The officer chose to search the Applicant before providing his rights to counsel and caution. She delayed in providing this information because she was the only officer on scene and officer safety was her priority.
[69] In the search incident to arrest she found two cash bundles, a large one in the inside pocket of his coat and the other in the left pocket, both held with elastics. One bundle contained $5,240 and the other contained $450. She found a cell phone and a bottle of prescription medication in the name of a female resident in Sundridge. At the time, she did not know if it was a controlled substance. When she pulled the pills from his pocket, she asked him what they were. She said that she was trying to determine whether he had a valid excuse for having a pill bottle in someone else’s name. She acknowledged that he was in legal jeopardy at the time and that he was entitled to have his right to counsel read before being questioned.
[70] As a result of her experience in the SCU, she concluded from the cash, the way it was bundled and the prescription in another person’s name, that he was likely trafficking the pills.
[71] After locating these items, she advised the Applicant that he was also under arrest for possession of property obtained by crime and possession for the purpose, depending on what the drug was, on the basis that the prescription was not in his name.
[72] Once he was lodged in her vehicle, the standard right to counsel information and caution were read to him.
[73] A search of his vehicle was done incident to arrest, revealing fentanyl and cocaine. There was also cash found in a safe in the back seat, in four stacks held together with elastic. Based on her experience, she approximated the amount to be $20,000.
[74] The notes that she prepared for this incident were done sometime after she returned to the detachment at 1:11 p.m. She attempted to write them in a chronological order.
[75] Before testifying, Officer Wickware was aware that the issue on the voir dire was whether this was a valid stop under the HTA.
Position of the Parties
Applicant
[76] The Applicant says that he was detained in the second parking lot without grounds and both his person and vehicle were searched incident to an unlawful detention. Additionally, he asserts that the officer saw that he was a Black man before stopping him, and that his race factored into the officer’s decision to detain him.
[77] The Applicant asserts that the officer fabricated evidence, after the fact, to attempt to justify an HTA stop. The Applicant argues that there was no basis for an HTA detention, and that the HTA was used as a pre-text for the true nature of the stop, which was an investigative detention that had no grounds.
[78] The Applicant alleges a serious of breaches of his Charter-protected interests. In addition to the s. 9 violations, the Applicant alleges consequential s. 8 breaches. Further, the Applicant submits that there were five s. 10 violations: 1) not advising of the reason for his initial detention; 2) asking questions that elicited utterances from the Applicant prior to being offered his rights to counsel; 3) not offering rights to counsel immediately upon his arrest for driving while prohibited; 4) not offering rights to counsel immediately upon his arrest for possession for the purpose and proceeds of crime; and 5) asking a question that elicited another utterance before being offered his rights to counsel.
[79] The seriousness and number of the breaches weighs heavily in favour of exclusion on the first two branches of the Grant test. This is particularly so if the court accepts the Applicant’s position that racial profiling occurred or that the HTA was deliberately used as a ruse and the officer tailored her evidence accordingly. Further, even if the third branch weighs in favour of inclusion, a balancing of the strength of the first two lines of inquiry still requires that that the evidence be excluded in this case.
Crown
[80] The Crown submits that the detention was not arbitrary, as Officer Wickware was acting under the authority given to her by the HTA. She had highway safety purposes in mind, which she identified as being the Applicant’s contravention of his requirement to signal when pulling into a live lane, and her suspicion that he may have been intoxicated or a suspended driver. Officer Wickware’s conduct does not amount to an investigative detention.
[81] This is not a case of racial profiling, as Officer Wickware was unable to observe the Applicant until he emerged from his vehicle.
[82] Wherever there is a discrepancy between the evidence of Officer Wickware and the Applicant, the court should prefer the evidence of the officer because the Applicant has provided several reasons to support a finding that he is not a credible or reliable witness.
[83] The Crown submits that there was no breach of either s. 9 or s. 10 of the Charter, although concedes that s. 8 will have been violated if the court finds a s. 9 breach. Even if there have been Charter breaches, the evidence should nonetheless be included because there is a strong public interest in stopping the flow of dangerous drugs into communities and prosecuting those responsible for contributing to the availability of drugs.
The Law
[85] Section 216(1) states:
A police officer, in the lawful execution of his or her duties and responsibilities may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.
[94] Racial profiling was defined in Peart as follows:
In R. v. Richards (1999), 26 C.R. (5th) 286 (Ont. C.A.), at 295, Rosenberg J.A. quotes a definition of racial profiling offered by the ACLC:
Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group. [Emphasis added.]
A police officer who uses race (consciously or subconsciously) as an indicator of potential unlawful conduct based not on any personalized suspicion, but on negative stereotyping that attributes propensity for unlawful conduct to individuals because of race is engaged in racial profiling: see Kent Roach, "Making Progress on Understanding and Remedying Racial Profiling" (2004) 41 Alta. L. Rev. 895 at 896.
[95] Police conduct that is motivated by racial profiling interferes with the constitutional rights of the individual who is the target of the profiling and is a serious violation of Charter-protected interests.
This approach to the correspondence test is consistent with the concept of unconscious bias, where a person either does not recognize, or does not acknowledge his own bias. An officer who has unconsciously allowed racial stereotypes to influence his decision to detain a racialized person may not believe he is being untruthful, and therefore may not be lying when he testifies that racial stereotypes played no role in the decision. Nevertheless, a trial judge is entitled to reject that evidence as untruthful, if the judge is satisfied, based on the circumstances consistent with racial profiling, that unconscious bias and racial profiling were factors in the decision.
It is open to a trial judge in an appropriate case to find that despite an officer’s demonstrated conscious or unconscious racist attitude, that attitude did not influence the decisions that were made. As Brown and Martin JJ. recognized in Le, at para. 80, “it is still open to a trial judge to determine that something that often occurs [namely, racial profiling] did not actually happen in the particular case before them.”
…Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers only of generalized suspicion. The same is true of factors that may “go both ways”, such as an individual’s making or failing to make eye contact. On their own, such factors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arising when the same factor is simply one part of a constellation of factors.
Analysis
Did the officer form a legitimate intention to detain for road safety purposes?
[106] To summarize, Officer Wickware said that the things that drew her attention to the Applicant’s driving behaviour on Main St., and that caused her to want to continue to monitor it, were a failure to signal when pulling out of the parking spot, driving slowly, and slightly crossing the centre line without signalling. Instead of making a u-turn as she had assumed was the driver’s intention, the Civic then came back into the lane and signaled a turn into the first parking lot, where she believes that she saw it enter a parking spot.
[107] This driving behaviour was considered by her to be “very suspicious”. She testified that she had three theories at that point: the driver may be lost, the driver may be impaired, or the operator may be a suspended driver.
[108] The officer then tried to fool the driver into believing that she was no longer following the vehicle. Based on her own notes, it is obvious that she formed the impression that the driver was trying to avoid her. She wanted to investigate whether that was the case, and so continued to follow him.
[109] The officer went on to testify that there were certain driving behaviours that occurred at the corner of Centre St. and West Rd. that heightened her suspicions. She was not asked about the nature of her suspicions, but I infer that she meant that she continued to have a concern about impairment or that the driver was trying to avoid her.
[110] After consideration of all of the evidence in this case, I reach the conclusion that the officer did not have a legitimate road safety purpose in mind when she detained the Applicant, and that she identified this as an HTA investigation after the fact when she was making her notes in order to disguise the true purpose of the stop. What was really going on here was that she needed a justification for stopping the driver for the purpose of investigating criminal activity, and used the HTA as a pretext for the stop.
[111] There are many bases in the officer’s evidence for reaching this conclusion, which I will first list and then will elaborate on further:
(a) Testifying confidently in-chief that one of the HTA infractions that she observed was failing to yield, when the evidence did not support such a violation, she had made no note of such a violation, and finally admitting on cross-examination that such an infraction had not been committed; (b) Failing to provide a meaningful explanation for why she would tell the court that this infraction was observed; (c) Stating that the main reason that she was stopping the vehicle was for a failure to signal when leaving the parking spot, when the evidence does not support that the Applicant was required to signal in the circumstances; (d) Describing the vehicle in chief as “crossing the centre line” and then in cross-examination modifying that evidence to concede that it was only the driver’s side of the vehicle that broke the centre line. It was only in cross-examination that she also acknowledged that this was not an HTA offence, as there was no interference with oncoming traffic; (e) Forming the idea that the driver was considering a u-turn and reaching the conclusion that this was to avoid her even though the driver’s next immediate move was to signal and turn left into a plaza; (f) Considering the slow speed of the vehicle to form part of the suspicious driving behaviour even though the speed precipitated the driver’s turn; (g) Forming the idea that the driver may be a suspended driver even before discovering on her return down Main St. that the vehicle was no longer in the first parking lot; (h) Describing the driver’s behaviour as suspicious, even though the sum of the driving that she had observed by the time she reached that assessment was an alleged failure to signal, slightly crossing the centre line, purportedly without signalling, and driving slowly; (i) Maintaining that she also believed that the driver may simply be lost; (j) Not following the Civic into the first parking lot to investigate or ticket the alleged HTA offence of failing to signal, or to investigate the driver’s sobriety; (k) Initially testifying that she missed her chance to turn into the first parking lot, and then only conceding that it was “possible” that she deliberately kept driving to fool the driver into thinking that she was gone from the scene when confronted with her own note stating: “drive my vehicle out of sight of the suspect”. (l) Initially denying that she thought the driver was trying to avoid her, until confronted with her note that expressly states that she suspected the driver was waiting for her to leave; (m) The fact that she continued to follow the driver for several minutes along Main St and Centre St. despite her concern that he may be impaired; (n) Never activating her lights or siren to pull the Applicant over; (o) Asking no questions about whether the Applicant had been drinking alcohol or using marijuana when she first engaged with the Applicant; (p) The nature of the questions that she asked the Applicant once he was stopped. (q) The inconsistency in her evidence about whether she was driving a marked or unmarked car. (r) Her unnecessary straining to emphasize the HTA during the first minutes of her testimony.
[112] The officer’s evidence was delivered confidently. But from beginning to end, it simply did not add up. It was shown quite glaringly on cross-examination to be not credible or reliable on key points. Other aspects of it do not make sense in the context of what was purportedly a straight-forward HTA stop.
[113] Crown counsel submitted that the Applicant’s evidence should be rejected because he was not a credible witness. For example, the Applicant’s testimony showed that he will lie to protect himself when necessary, such as when he pretended to be having engine trouble or to search for a non-existent licence. On the day in question, he was engaged in criminal behaviour, being in possession of multiple prohibited drugs and driving while suspended. I agree that his evidence must be approached with caution.
[114] Crown counsel pointed out three examples of unreliability demonstrated by the Applicant’s evidence. Despite saying the events of the day were burned in his memory, Ms. Miles submitted that he refused to admit anything about the tint of the car windows, did not know the street names nor directions involved in the events, and was vague on the details of where his car was parked.
[115] I do not agree with these submissions on reliability. Street names and directions are minor details in this case and not in dispute, and there was no evidence to establish whether this was his first or one hundredth stop in Huntsville. The Applicant does not dispute where these events transpired. He identified exactly where he was parked by the mailboxes, and the site of the first parking lot. As for the window tint, his answers were responsive to counsel’s questions. He was asked if the windows had a “very dark” tint, and he responded that he could not say whether they were “very dark”. That was a fair answer, as “very” is a subjective qualifier. As Ms. Miles was attempting elicit from him whether tinting obscured the ability of someone to see inside a vehicle, a question that was not directed specifically at the Civic, his answer was that it depended on the tint and that there was a scale of darkness. But his answer consistently was, in reference to the Civic, that the side and back windows were tinted but a person could see in during the daytime.
[116] I will now discuss some of the factual determinations to be made by the court.
Signaling when exiting the parking spot
[117] The first is whether the Applicant failed to signal his intention to enter onto Main St.
[118] I find on a balance of probabilities that he signalled. The Applicant’s evidence was that he was being conscientious about following the rules of the road so as not to draw unwanted attention to his vehicle. It makes sense for him to be behaving in that fashion, as he had a strong motivation to not do anything to attract the attention of the police.
[119] Even if the officer was honestly mistaken about seeing him signal, it is difficult to understand why such an omission would have focused her attention on the Civic. The evidence from the officer herself does not suggest that a signal was warranted nor required in the circumstances.
[120] The operative provision for this offence is s. 142(2) of the HTA, which states:
(2) The driver or operator of a vehicle parked or stopped on the highway before setting the vehicle in motion shall first see that the movement can be made in safety, and, if in turning the vehicle the operation of any other vehicle may be affected by the movement, shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.
[121] The officer approximated that she was ten car lengths away from the Civic when it pulled out of the parking spot, and she did not have to adjust her driving behaviour in any way to make accommodation for it as it entered the live lane. She also testified that there was no vehicle in front of her. Accordingly, no other vehicle was affected by the movement of the Applicant’s vehicle, so the requirement to signal was not triggered.
[122] Even if the officer honestly believed that the Applicant did not signal, her fixation on this as the violation that first drew her eyes to the vehicle is unwarranted on an objective assessment of the circumstances and suggests another reason was at play.
Failing to Yield
[123] As eventually admitted by the officer, the offence of failing to yield was not committed.
Intoxication
[124] Despite saying that one of her safety concerns was that the Applicant may have been intoxicated, the officer did not take the very first opportunity to follow him into the first parking lot. After turning around somewhere further west on Main St., she continued to follow him for a significant distance after turning on to Centre St. and before he finally brought his vehicle to a stop in the second parking lot. According to her notes, five minutes elapsed from the time that she first spotted the vehicle to when the Applicant stopped in the second parking lot. The evidence of both witnesses was that the officer caught up to the Applicant right after he turned onto Centre St. As Exhibit 9 shows, the distance travelled along Centre St. was enough to offer many opportunities for the Applicant to be stopped. No explanation was offered as to why it was not until reaching West St. that the officer decided that she could now safely pull him over, before being pre-empted by his own turn into the second parking lot.
[125] None of this is consistent with a bona fide concern about sobriety and road safety. If the officer truly suspected that the Applicant was attempting to evade her because his driving was impaired, it stands to reason that she would have pulled him over at the earliest opportunity.
[126] The fact that the officer asked the Applicant no questions related to intoxication when she stopped him is also inconsistent with a concern about impairment. Although her evidence was that it became clear when speaking to the driver that he was not impaired, the nature of the conversation that she chose to pursue also indicates that impairment was not what was being investigated.
Suspended Driver
[127] The officer also suggested that it occurred to her that the driver might be a suspended driver, another HTA offence. This conclusion was again reached after observing the behaviour before turning into the first parking lot, and concluding, based on the driving, that the operator wanted to evade her. The officer’s first impression was that he was going to make a u-turn to achieve this objective.
[128] Beyond the potential breach of the centre line, there was no other indication that the driver was intending to make a u-turn. Even though the Applicant testified that that was his first instinct, there is no other evidence that he displayed driving behaviour that indicated an intention to make a u-turn. Instead, he signalled and turned left into a parking lot. This is hardly suspicious driving behaviour, and yet from that point on he became a “suspect”.
Lost Driver
[129] One of the theories that the officer suggested that she had about the driving behaviour was that the driver may be simply lost. She continued to maintain that she began to lean more toward the explanation that he was lost upon learning that he was not from the area. However, his reference to engine problems did not explain his driving, so she pressed on.
[130] It is irreconcilable that the officer would record her notes as she did, referencing a suspect who she believed was waiting for her to leave the area, and yet testify that she was still holding on to the belief that he may just be lost. I find that helping a lost driver played no part in the motivation for this stop. This evidence was a futile attempt to create a benign explanation for why she was following the Applicant.
Questioning
[131] Officer Wickware testified confidently that the first topic she broached with the Applicant was to tell him that she had been about to pull him over. She stated that this was because she was not certain that he knew she was following him. This is of course completely inconsistent with her notes. She testified “when I walked up, I told him why I was stopping him. That prompted him to give me his story.” She said that it was her initiating comment about his driving that led him to talk about having engine problems, although he never addressed her initial driving concerns.
[132] There is no dispute that the Applicant immediately had his hood open and was pretending to have engine problems. However, I find as a fact that if the officer had raised driving behaviour as the first topic, this Applicant would have addressed this topic in a responsive way. He testified obliquely about other interactions with the police and his view that “it only goes wrong if you don’t follow their orders”. If the officer had brought his attention to his driving behaviour, I find that there would have been a different conversation than the one that occurred, which had nothing to with his driving. Her evidence that she believed that he was volunteering this information to explain his driving behaviour makes little sense.
[133] The officer described their interaction as a more of a conversation. The subject matter had nothing to do with road safety. It was about how long the Applicant had been in Huntsville, where he was from, who he had seen, that person’s last name, and where that person lived. I find that there is no possibility that the Applicant would have volunteered this information to “distract” the officer, as she suggests. The topics are in line with someone intent on investigating criminal activity. I find as a fact that the officer initiated this information by asking questions once the Applicant told her that he was having engine difficulties. And that she asked those questions because highway safety issues were not her true motivation.
Other Driving Behaviour at West Road Intersection and on Main St.
[134] In part because there was no discussion of driving behaviour, I also find that the other driving behaviour that was said to have occurred at West Rd., which further raised the officer’s suspicions, likely did not occur. Alternatively, if it did, it is being used to further justify the HTA stop without grounds.
[135] On balance, I find that it is much more likely that the Applicant was driving like a model citizen by that point. He knew that the officer was following him with some purpose in mind. He was never asked whether his signal was turned on and off repeatedly. Much of what the officer described is trifling, such as going over the white line and stopping and starting a signal light. Ultimately, her evidence was that he turned right when it was safe for him to do so. If any of these behaviours happened, I find that they do not form part of the true reason for the stop.
[136] For the same reasons, I find it more likely than not that crossing the center line on Main St. did not occur.
[137] The Applicant also argued that the officer’s arrest for the pills and money was precipitous and groundless, given that she did not even know what the pills were and knew nothing about the Applicant’s relationship to the person named on the bottle. The court is asked to infer that this was indicative of the officer’s state of mind and her intention to investigate the Applicant from the start. I do not agree with this submission. Had this been a valid detention, I find that the officer would have had reasonable and probable grounds to believe that the Applicant was trafficking based on finding a large amount of cash that is bundled with elastics, which is often an indicator of trafficking, and pills that were not prescribed for the Applicant.
[138] In summary, I reject the officer’s evidence that this stop was done for a legitimate HTA purpose. For some reason, this vehicle and its driver became the focus of Officer Wickware’s attention. They caused suspicion and she decided to investigate. None of her purported road safety issues stand up under scrutiny. The officer’s attempts to downplay her immediate suspicions of him in her evidence, and to emphasize the alleged HTA nature of the stop, all point to this same conclusion.
[139] I find that her stop of the vehicle was for the purpose of an investigative detention. The criminal activity that she may have been suspicious of can only be a matter of conjecture at this point. However, at the time of the stop there was no apparent crime that required investigation, nor any basis for the officer to have a reasonable suspicion that the Applicant was involved in a recent or ongoing criminal offence. The detention was illegal.
Has racial profiling been established?
- The length of time it took for the motorist to be stopped: one would reasonably expect that when an officer sees a traffic violation, he or she would immediately stop the vehicle and issue a ticket or warning. Where the stop occurs at some later time and place, one can reasonably infer that the officer is conducting criminal surveillance of the driver or occupants and now seeks to use the traffic violation to further that investigation. It would also be suspicious where the officer waits until the vehicle is on a side-street. This suggests that the officer wants to shield his or her conduct from public view;
- The issuance of a traffic ticket: finally, it would be a suspicious circumstance where an officer claimed that the driver had violated some serious traffic law but then did not issue a traffic ticket.
- The nature of the questioning: when an officer conducts a routine traffic stop, normal procedure would be for the officer to ask the driver questions about his or her licence, registration, and insurance status. It would be inconsistent with a routine stop if the officer's first questions were more of an investigatory nature (for example, “what are doing in this neighbourhood”, “where did you get this car,” or “are you on bail?”). It would also be particularly telling if the officer asked a question for which he or she knew the answer in an attempt to create a basis for a “flimsy” arrest (arrest for obstruction of police, for example) as an arrest would then give the officer a basis to conduct a search of the person and the vehicle.
[141] The determination of whether racial profiling entered the decision to detain the Applicant in this case turns entirely on the factual determination of whether Officer Wickware saw that the Applicant was Black before detaining him.
[142] On the facts presented, there were only two opportunities for the officer to have observed the Applicant before he was detained. The first possibility was when the Civic was in the process of turning in the first parking lot and facing eastward, in which case it would have been necessary for her to have been able to observe the Applicant’s skin colour through the tinted driver’s side window. The second possibility is that she observed him through the front windshield after he made a complete turn in the parking lot and was facing Main St.
[143] A photograph of the Civic was entered into evidence, taken by Officer Wickware from the rear of the vehicle. Two of the doors are open in the picture, revealing the level of tint from the viewpoint of occupants inside the vehicle. I do not consider that to be a reliable indicator of the degree of transparency for someone looking into the vehicle from the outside and from a distance.
[144] The rear windshield in the photograph is completely dark and heavily tinted. The interior of the vehicle is not visible through the rear windshield in the photograph, such as shadows or outlines of shapes associated with head rests, car seats, or a rear-view mirror.
[145] The Applicant was certain that the even though the windows were tinted, it was possible to still see inside during daylight hours. He did not elaborate on the degree of visibility that was possible.
[146] The Applicant used this vehicle every day. I find that he is in the best position to know whether there was some degree of visibility from the outside, and photographs do not always reliably capture lighting and shadow. Accordingly, the defence has not established that it would be impossible to see a shadow or silhouette as Officer Wickware testified. However, I find that it would be impossible to see the driver’s skin tone through the side window.
[147] The other scenario presented is that the police vehicle passed in front of him as the Civic was pointed toward the road.
[148] By the time that the Applicant had signalled his intention to turn into the parking lot, Officer Wickware’s vehicle was quite close to the Civic. Although I find that she gave inconsistent evidence about her distance from him, first agreeing that she was right behind him when he made his turn into the first parking lot and then saying that she was approximately two car lengths behind him, the point is that she had caught up to him.
[149] It is not critical for me to resolve the conflict in the evidence about whether this was a marked or unmarked police vehicle. Whichever it was, there is no debate that the Applicant realized very early on that a police car was behind him, and he was trying to get away from it. The greater significance of the evidence is that it is another example of a marked inconsistency in the officer’s evidence, as she purported to initially have a clear memory that she was driving a marked car, which altered over time.
[150] However, I find that it is more probable than not that it was the unmarked Ford Taurus that Officer Wickware was driving that day, as it is not likely that the Applicant would have deliberately pulled out of his parking spot if a police cruiser was visible. I accept his evidence that he was trying to be as inconspicuous as possible. Based on his estimate of where the police vehicle was when he pulled out, and Officer Wickware’s evidence that there were about ten car lengths between them, I find that the Applicant would have been able to observe a marked cruiser approaching from behind and would have opted to remain parked until it had passed.
[151] I reach the conclusion that there was no vehicle between the Civic and the police vehicle. The Applicant was able to see that the vehicle was being driven by a police officer, and Officer Wickware was in full uniform. It is improbable that the Applicant could have observed any features of the unmarked car or its driver if there was a vehicle directly behind him.
[152] Accordingly, the Applicant’s evidence about the proximity of the police vehicle to the Civic as he signalled to make his turn is not reliable.
[153] The Applicant’s argument would require the court to accept that in the time that it took the Applicant to cross the eastbound lane, enter the driveway and complete a full circle, the officer had not yet passed the entrance for the parking lot. This would not be feasible, unless the officer had completely slowed her vehicle to a crawl or even stopped it on the roadway, of which there is no evidence.
[154] Further, the Applicant’s description of where the police cruiser was by the time that he pointed his vehicle toward Main St. was quite vague. Although he said that he saw the vehicle pass in front of him, no further details were given. He did not identify exactly where the police vehicle was in relation to the parking lot driveway, did not talk about its speed, did not say that he observed the officer looking toward him, and did not provide detail about how long it took for the police vehicle to disappear from his view.
[155] The Applicant’s counsel has emphasized the fact that Officer Wickware made a note that she was unable to tell whether the occupant was male or female at the time that she saw the shadow of the head look in the direction of her vehicle. He argued that it made no sense for her to make a note of a “non-observation”, and that she did so to distract from the fact that she had seen the race of the driver.
[156] The officer’s explanation for why she made this note was not logical. Although there would undoubtedly be instances in which the gender or other identifying features of a person may be relevant – as in the example she gave of someone failing to stop when being pulled over – that did not happen in this case. The officer made her notes at the detachment well after these events were over. At that point, there is no obvious relevance to making a note to record that she had been unable to determine gender at an earlier point in the interaction.
[157] One possible reason for making such a note could be, as Mr. Angelini submitted, to pre-empt any argument that race played a part in the decision to pursue and detain the Applicant. But that could also be true whether the observation was made on Main St. or when the Applicant emerged from the car. The officer denied that she made the note to preclude any suggestion that race had any part in her decision to stop the driver, which, as the case law states, is neither surprising nor determinative.
[158] There are numerous markers here to suspect the potential for racial profiling to have been part or all of the impetus for Officer Wickware’s decision to detain the Applicant. However, after considerable deliberation, I still find that the other evidence, as discussed above, does not permit me to find on a balance of probabilities that Officer Wickware observed the Applicant through the front windshield.
[159] Accordingly, I find that Officer Wickware did not see that the Applicant was Black until he got out of his vehicle. The decision of the officer to detain the Applicant was not tainted by racial profiling.
Was the Applicant’s s. 9 Charter Right breached?
[161] Officer Wickware did not stop the Applicant for purposes or in a manner authorized by the HTA. She used the HTA as a ruse or pretext to stop his vehicle to investigate possible criminal activity. She had no reasonable ground to detain him. I conclude that the detention was unlawful.
[164] In total, his s. 9 rights were breached when he was prevented from leaving the parking lot, when he was arrested for driving while prohibited, when he was further arrested for the drug related offences, and when his detention continued as he was placed in the back of the police car and transported to the detachment, where the detention continued.
[165] I am satisfied that the Applicant has established several breaches of his s. 9 right to be free from arbitrary detention and imprisonment.
Was the Applicant’s s. 8 Charter Right breached?
[166] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure.
[167] The Crown concedes that if there was a breach of s. 9, there was a corresponding breach of s. 8.
[168] I find that the state breached the Applicant’s s. 8 right to be free from intrusion on his personal privacy at three junctures. The first was demanding information about his name, address and birth date in order to conduct the Ministry of Transportation and CPIC inquiry. This produced considerable personal information that would not otherwise have been available to the officer.
[169] The second was the search of his person in the second parking lot. This was more than a brief pat-down search, as the officer’s evidence was that she took her time and did not rush. This is backed by her evidence that the Applicant was arrested for being a prohibited driver at 11:40 a.m. and told of his rights to counsel at 11:48 a.m. after being placed in the back of the police vehicle once the search was over.
[170] The third breach was the search of the vehicle. The fourth was the search of the safe that was on the back seat of the vehicle. These searches resulted in further charges. I suspect that there was a fifth breach consequent to another search at the detachment while the Applicant was being processed but heard no evidence about such a search so will consider only four to have been established.
[171] All four of these searches were unlawful, given that they followed an unlawful arrest. However, they are to be considered consequential breaches that arise from the initial unlawful detention.
Were the Applicant’s s. 10 Charter Rights breached?
[172] Section 10(a) of the Charter provides that everyone has the right, on arrest or detention, to be informed promptly of the reasons therefore.
[173] The Applicant submits that his s. 10(a) right was violated by not being told the reason for his initial detention. As I have found, Officer Wickware did not tell him why she had pulled her vehicle up behind his and mentioned nothing about his driving, road safety concerns, suspected intoxication, or the HTA. Section 10(a) was breached.
[174] As I have found that the purported HTA purpose for the Applicant’s stop was a pretext, then his s. 10(b) right was triggered from the beginning of the interaction once the officer got out of her vehicle and began to engage with the Applicant. Of course, at that point she had not fulfilled her duty to give him the required information about the extent of his jeopardy so that he could get meaningful advice, as at that point she herself had no objectively reasonable basis for the Applicant’s detention.
(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).
[177] To repeat, the Applicant asserts four s. 10(b) violations: 1) asking questions that elicited utterances from him prior to being offered his rights to counsel; 2) not offering rights to counsel immediately upon his arrest for driving while prohibited; 3) not offering rights to counsel immediately upon his arrest for possession for the purpose and proceeds of crime; and 4) asking a question that elicited another utterance before being offered his rights to counsel.
[178] As indicted, the Applicant was read his rights to counsel at 11:48 a.m., eight minutes after his initial arrest. It is not known when he was arrested for possession for the purpose, but it was somewhere in that intervening period. It was also after administering the informational component of s.10(b) that Officer Wickware provided the standard initial caution that warned the Applicant that he could remain silent and that anything he said could be used against him in evidence. This warning is not constitutionally mandated, but its provision indicates that the police are mindful of their duty to not elicit incriminating information from an accused person until they have been given the opportunity to obtain legal advice.
[179] I find there was a breach of s. 10(b) when the Applicant was asked questions by the officer during the course of an investigative detention. He was not legally required to answer any of these questions. She elicited incriminating information, as the officer’s suspicions were further peaked by the fact that he could not tell her Adam’s last name, nor how long he had been in Huntsville.
[181] For the same reason, I find that there was no breach of s. 10(b) by the delay after being arrested for the drug-related charges, which happened sometime in that eight-minute span.
[182] When she found the pills, the officer asked the Applicant what they were. She did not know. She was deliberately trying to elicit incriminating information from a person under arrest, who had not been cautioned or provided the informational component of s. 10(b). She admitted that her motivation in asking was to see whether he had a valid excuse for having the pills – put another way, she was investigating. She knew that he was in legal jeopardy at the time.
[183] I find that this was a clear breach of s. 10(b).
[184] In summary, there were three distinct s. 10 Charter violations that occurred in this case. These were all independent Charter breaches, separate from the initiating unlawful detention.
Would the admission of the evidence bring the administration of justice into disrepute?
[185] The totality of the Charter breaches that I have found are:
(a) A breach of s. 9 at the time of the investigative detention; (b) A breach of s. 9 at the time of the arrest for prohibited driving; (c) A breach of s. 9 at the time of the arrest for possession for the purpose and possession of proceeds of crime; (d) Ongoing s. 9 breaches when he was detained in the cruiser in handcuffs and detained again at the detachment; (e) A breach of s.10(a) when he was not informed, ever, of the reason for his initial detention; (f) Two distinct breaches of s.10(b) from the officer failing to hold off on questioning; and, (g) Four breaches of the Applicant’s s. 8 rights.
[186] Section 24(2) of the Charter provides:
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.
[187] All of the impugned evidence in this case was obtained when Charter rights were being violated, and accordingly all was “obtained in a manner” within the meaning of s. 24(2). There is a direct connection between the arbitrary detention and the discovery of all of the incriminating evidence by which the Crown would seek convictions.
(a) The Seriousness of the Charter-Infringing State Conduct
[189] This first line of inquiry requires the court to consider the nature of the police conduct, and whether it is so serious that the court must dissociate itself from it. It is also necessary, as required by the majority decision in Zacharias, to identify which breaches are consequential and which are independent Charter breaches that raise the seriousness of the police behaviour overall.
[190] There is no legal uncertainty about the applicable standards that should have been guiding the officer’s actions in this case. Officer Wickware is an experienced officer who knows what the Charter demands and what rights the police are expected to uphold.
[191] Right from the beginning of the analysis, the unlawful detention is at the serious end of the spectrum. As I have found, the officer deliberately and knowingly used what would otherwise be lawful authority under the HTA to justify, after the fact, an investigative detention. This is not a case of a legitimate HTA stop morphing into a criminal investigation that then resulted in Charter breaches. This is the case of an officer who wanted to investigate a baseless hunch of criminal wrongdoing, and so tracked down a motorist without grounds in order to try to figure out where he was from and what he was doing. This is exactly what s. 9 is meant to protect against.
The balance struck between common law police powers and individual liberties puts a premium on individual freedom and makes crime prevention and peacekeeping more difficult for the police. In some situations, the requirement that there must be a real risk of imminent harm before the police can interfere with individual rights will leave the police powerless to prevent crime. The efficacy of laws controlling the relationship between the police and the individual is not, however, measured only from the perspective of crime control and public safety. We want to be safe, but we need to be free.
[193] The arrest of the Applicant for driving while prohibited was consequential to that initial breach. As indicated in Zacharias, the arrest in this case does not significantly increase the seriousness of the conduct. The Applicant was in fact driving without lawful authority and so his arrest would have been warranted but for the initial breach. However, it must be kept in mind that this was not a case in which the police innocently believed that they were proceeding lawfully. Rather it is a case in which the officer knew or should have known at the time that she was not pursuing a true HTA purpose and not following the law.
[194] This disregard for the Applicant’s Charter rights continued as the officer failed to explain to him the reason for his initial detention. She did not tell him that she was investigating his driving behaviour. As I have found, she did not have a reason for the detention to provide to him at that time, and one was never offered. This was independent misconduct that increases the seriousness of the state’s conduct.
[195] Yet another serious, independent breach occurred when the officer began to interrogate the Applicant after stopping him without justification and before providing him with rights to counsel. This was deliberate.
[196] The search of the Applicant, the second arrest, and the searches of his vehicle and its contents were also consequential to the initial unlawful detention and do not increase the already serious nature of the violations.
[198] Grant provides, at para. 75, that:
Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.
[199] The cumulative, serious nature of the independent breaches and the court’s need to disassociate itself from this state misconduct strongly favours exclusion.
(b) The Impact on the Charter-Protected Interests of the Applicant
[202] In the course of that unlawful detention, his privacy was further invaded by being asked to provide core biographical information – birthdate, address and name.
[203] The search of his person was done in a public parking lot and took somewhere in the vicinity of eight minutes. While not of the same intrusive nature as searches associated with the taking of bodily evidence, it was more than a trifling invasion of the Applicant’s privacy and personal integrity.
[205] The failure to tell the Applicant why he was being stopped, or that he did not have to answer any of the officer’s questions, or that he had the right to consult with a lawyer, all left the Applicant in the vulnerable position of thinking that he could talk his way out of the situation, as he testified, and that he had to answer the officer’s questions. Although the officer stated that his answers raised her suspicions, I infer that she intended to ask for his documentation regardless of his answers because she also suspected, without grounds, that his licence was suspended. I cannot conclude that she investigated his driving status solely because of how he answered the questions. While wholly inappropriate, and a significant incursion on his rights, the first set of questions did not increase his jeopardy.
[206] That is not the same with the questioning about the pills. The officer asked him about the pills before being arrested for possession for the purpose. He could not offer an exculpatory explanation for why they were in his possession, which formed part of her grounds for arresting him. This independent breach increased his legal jeopardy.
[207] The detention, arrests, searches and independent s. 10 breaches significantly impacted on the Applicant’s privacy, liberty and right not to self-incriminate. The second Grant factor also strongly favours exclusion.
(c) Society’s Interest in an Adjudication on the Merits
[208] The third Grant factor strongly favours inclusion of the evidence.
[209] The evidence in this case was crucial to the Crown’s case, and its exclusion shut down the prosecution. The evidence seized was real – over $40,000 in cash, jewelry, a safe and four types of controlled substances. Lethal drugs, the type that our society has a very high interest in ensuring do not make it into the hands of drug addicts and those who will become addicts. The Applicant was charged with serious offences and there is a strong societal interest in seeing the case adjudicated on its merits.
[211] This is one of those cases in which the long-term integrity of the justice system cannot give way to what are certainly pressing and significant interests to have a trial on the merits.
[212] The analysis of the three Grant lines of inquiry do not result in this case being a close call. The officer suspected the Applicant of criminal activity for no legitimate reason, tracked him down, violated his Charter rights in multiple, deliberate ways, and then invented HTA infractions to justify the unjustifiable. The administration of justice would be brought into disrepute if the evidence obtained by that conduct was admitted.
[213] For these reasons the Application was granted and an acquittal entered.
Madam Justice S.E. Healey Released: April 22, 2024