COURT FILE NO.: CR-20-50000419-0000 DATE: 20240801 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – TYLER WIRAG Applicant
Counsel: Amanda Hauk, for the Respondent W. Glen Orr, Q.C., for the Applicant
HEARD: April 9-12, 24, May 1 and July 11, 2024
B. P. O’MARRA J.
NOTICE: THERE IS AN ORDER THAT THERE BE NO PUBLICATION OR TRANSMISSION OF THIS PRETRIAL PROCEEDING UNTIL THE JURY IS SEQUESTERED, THE TRIAL IS COMPLETED, OR UNTIL SUCH FURTHER ORDER OF THIS COURT.
RULINGS ON CHARTER APPLICATIONS
OVERVIEW
[1] In the early hours of May 14, 2020, members of Toronto Police Service (TPS) were dispatched to the scene of a single vehicle accident. Information was received from witnesses that the car went airborne and struck a post. Members of Toronto Fire Services (TFS) were the first on scene. They received information from a witness who saw a man get out of the vehicle and walk away. He appeared to limp.
[2] Members of TFS checked the car to ensure it was not engaged. They noticed a handgun on the floor of the driver’s seat near the brake. When members of TPS later received this information, they seized the handgun. It was loaded.
[3] Shortly thereafter members of TPS saw a man limping across the street. He matched the description given earlier by witnesses who saw a man get out of the damaged car. When the officers spoke to the man, he appeared to be impaired and exhibited signs of intoxication. He was later charged with impaired operation of a vehicle and related offences. He was later charged with firearms offences related to the handgun found in the car.
[4] On March 16, 2020, a member of TPS sought and obtained a search warrant for the damaged car that had been seized by police. Forensic evidence from the car linked the applicant to the car.
[5] The applicant initially applied to exclude the evidence obtained by the police pursuant to sections 8, 9, 10 (a) and (b) of the Charter. In the course of the application, he abandoned the claims under sections 10 (a) and (b) of the Charter.
[6] On July 11, 2024, I dismissed the Charter applications. These are my reasons.
THE FACTS
[7] The applicant did not testify on this application. The facts were not contentious but the impact of sections 8 and 9 of the Charter were in issue.
[8] On March 14, 2020, at 3:25 am, members of TPS were dispatched to the scene of a single vehicle collision near Islington Avenue and Rexdale Boulevard. Civilians had reported seeing the vehicle travelling at high speed and striking a post. They described the vehicle as ending up blocking lanes of traffic.
[9] Members of TFS had arrived on scene before the police arrived. They received information from civilians on scene who saw a man get out of the damaged vehicle and walk away. The man appeared to be limping. Members of TFS checked the vehicle before the police arrived to make sure the transmission was not engaged. They noticed a handgun on the floor of the vehicle near the brake. TPS were notified that a handgun had been seen.
[10] The first police officer on scene saw that the vehicle was severely damaged. He conducted computer checks and learned that the detached licence plate did not match the VIN number of the vehicle. He also received information from TFS that a handgun had been seen inside the vehicle. He then saw the handgun inside the vehicle and seized it. This was before anyone associated to the crashed vehicle had been observed or detained by police.
[11] As the first officer dealt with the handgun other officers saw a man limping across Islington Avenue. They approached the man (the applicant) and saw that he matched the description given earlier by civilians of the man who got out of the damaged vehicle and walked away. The applicant exhibited signs of intoxication and appeared to be injured.
[12] The applicant was told that he was being detained in relation to the investigation of the accident. He was searched and the police found a driver’s licence in the applicant’s name. The applicant was handcuffed and escorted to a nearby cruiser. He was seated in the back seat with the door open and his feet facing out. The police had called for an ambulance to deal with his apparent injuries.
[13] The applicant was then arrested for impaired operation of a vehicle. He was advised of his right to counsel and a breath demand was read to him. Paramedics were then on scene. They dealt with the applicant and cleared him for processing by the police. The applicant was later arrested for charges related to the loaded handgun that had been retrieved from the damaged vehicle.
[14] The applicant was never asked by police whether he was the driver at the time of the accident.
[15] On March 16, 2020. A member of TPS sought and obtained a search warrant for the damaged vehicle that had been seized. The warrant authorized a search for bodily fluids and fingerprints.
[16] On March 17, 2020, a forensic search of the interior of the vehicle was conducted. Blood was detected on the airbag that had deployed on the driver’s side. On June 17, 2020, TPS learned that the DNA from the airbag matched a DNA profile related to the applicant. On August 26, 2020, a report from the Centre of Forensic Science (CFS) indicated that the applicant could not be excluded as the source of the male profile detected on the driver’s side airbag.
POSITION OF THE PARTIES
[17] The applicant submits that the police investigation at the accident scene and in dealings with the applicant was inadequate. They never asked the applicant whether he had been the driver. They lacked reasonable grounds to believe that he had been the driver. Thus, his detention and arrest violated his rights under the Charter.
[18] The applicant also submits that the seizure of the handgun from the damaged vehicle was not judicially authorized and thus violated his rights under s. 8 of the Charter. The police had complete control of the damaged vehicle and should have obtained a search warrant before seizing the handgun.
[19] The respondent submits that the applicant does not have standing to challenge the seizure of the handgun since he had abandoned the vehicle. The respondent also submits that the police had reasonable grounds to believe that the applicant was the driver based on the cumulative information from witnesses at the scene and observations of the applicant nearby.
STANDING TO CHALLENGE THE SEARCH OF THE CAR AND SEIZURE OF THE LOADED HANDGUN
[20] The owner/operator of a vehicle does not waive his interest in or abandon a car after an accident. He retains a legal interest in the car sufficient to ground standing to challenge a search of the car.
[21] However, the authority of the owner/operator of a car involved in a collision with significant damage is subject to significant limits. Fire, ambulance and police do not require the consent of the owner/operator or judicial authorization to deal with the aftermath of a serious collision by entering the car to render it safe and carry out their duties at the scene.
ENTRY OF THE CAR AND SEIZURE OF THE GUN WITHOUT A WARRANT
[22] Section 487.11 of the Criminal Code enacts an exigent circumstances exception to the warrant requirements set out in the Code.
Where Warrant Not Necessary
487.11 A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.
[23] A warrantless search is thus authorized to prevent imminent bodily harm or death or to prevent the imminent loss or destruction of evidence where it would be impractical to obtain a warrant. The standard for exigency to protect for safety is lower (reasonable suspicion) than to preserve evidence (reasonable belief): R. v. Fearon, 2014 SCC 77 at paras. 173-176.
[24] Related to the doctrine of exigency is the common law adopted by the decision of R. v. Waterfield, [1963] 3 All E.R. 659. This is the exercise of police power to protect life. In R. v. Dedman, [1985] 2 SCR 2 at para. 69 the court set out the test for the existence of a common law police power as follows:
The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference.
[25] At the time the handgun was seized from the car the police did not have a suspect or suspects in detention. They did not know whether the handgun was loaded (in fact it was). It would have been dangerous and irresponsible for the police to not seize the handgun and render it safe to protect the public, including fire and ambulance personnel who attended the scene.
[26] The police clearly had grounds to obtain a search warrant for the interior of the vehicle. They had complete control of the vehicle. That does not mean that they were required to get a warrant. In the circumstances, the seizure of the handgun at the scene was both reasonable and lawful. It would have been reckless and dangerous for them to delay seizure of the handgun.
GROUNDS TO BELIEVE THE APPLICANT HAD BEEN THE DRIVER AND COMMITTED OFFENCES
[27] The combination of information received and observations at the scene including observations of the applicant clearly provided reasonable grounds to believe he was the driver. The police could have asked him if he was the driver but were not required to do so.
[28] Before the arrival of TFS and TPS at the scene there were civilians who saw the crash and described its aftermath. They provided information to TFS and ultimately TPS of a description of a lone male who left the vehicle and walked away. He appeared to be impaired. They did not mention or refer to any other occupants of the car.
[29] TPS had this description of the driver when they observed the applicant walking nearby. He matched the description. He appeared to be injured and under the influence of alcohol. The police did not receive any information or see anyone else who could be connected to the vehicle.
[30] Police routinely must consider information received plus their own observations and investigation in determining whether someone has been involved in a crime. The temporal connections in this case of the time of the accident, information from the civilians and TFS and their own observations clearly provided reasonable grounds to believe the applicant was the driver and had committed offences related to impaired operation of a vehicle.
[31] Based on all of the information they received and what they observed the TPS had reasonable grounds to believe that the applicant had committed offences related to the use and occupation of the vehicle. The investigative detention and subsequent arrest were lawful and Charter compliant.
[32] For these reasons the Application pursuant to sections 8 and 9 of the Charter are dismissed.
B.P. O’Marra J.
Released: August 1, 2024