R v. Franklin Kusi, 2024 ONSC 6248

COURT FILE NO.: CR-23-00000486-0000 DATE: 2024 11 12 ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

- and -

FRANKLIN KUSI

) A. Hrivnak for the Crown ) J. Pyzer, for the Applicant ) HEARD: October 21 and 22, 2024

RULING ON THE CHARTER APPLICATION BY THE DEFENDANT J. L. RICCHETTI

THE APPLICATIONS

1There were two pre-trial applications before me, as the case management judge:

a) By the Crown, seeking a voluntariness ruling on an utterance made by Mr. Kusi; and

b) By the Defendant, seeking an order for the exclusion of evidence as a result of an alleged breach of s. 8 of the Canadian Charter of Rights and Freedoms (Charter).

2At the conclusion of the evidence, the Crown withdrew its voluntariness application, without prejudice to the use of the alleged statement in the Charter application.

THE EVIDENCE

3The following witnesses gave evidence on the application:

a) Officer Sukhraj Gill. I accept the evidence of Officer Gill. I reject the Defence's submission that Officer Gill's evidence was neither credible nor reliable. There were minor inconsistencies in his evidence. The minor inconsistencies, regarding events that occurred 3 ½ years ago, did not bear on his evidence of the material facts relevant to this application and set out below.

b) Officer Omar. Office Omar arrested Mr. Kusi at approximately 8:01 p.m. after Mr. Kusi's attempts to avoid arrest. After a search, Officer Omar found car keys, along the path Mr. Kusi had apparently taken, after avoiding his arrest by Officer Gill.

c) Officer B. Benes. Officer Benes participated in the transport of Mr. Kusi, during which time Mr. Kusi said that the vehicle's keys may have "fallen" out near his vehicle.

THE FACTS

4On May 22, 2021, Officer Gill was on uniformed patrol, in a marked cruiser, on Summit Green Crescent in Brampton.

5At approximately 7:56 p.m., Officer Gill observed a vehicle in the roadway. The vehicle was idling and facing Officer Gill's cruiser. The vehicle was a four-door silver Hyundai Sonata, licence plate CRDC544 (Vehicle).

6Officer Gill "ran" the license plate of the Vehicle. The registered owner of the Vehicle was Mr. Kusi. Officer Gill discovered that Mr. Kusi was the subject of an outstanding warrant for his arrest.

7Officer Gill retrieved, on his cruiser's computer, a photograph of Mr. Kusi.

8As Officer Gill's cruiser slowly approached the Vehicle, Officer Gill could see the driver and was very confident it was Mr. Kusi in the Vehicle. Officer Gill decided to stop the Vehicle.

9When Officer Gill approached closer to the Vehicle, Mr. Kusi slowly reversed his Vehicle and moved away from Officer Gill's cruiser. Officer Gill turned his cruiser lights on and followed the Vehicle.

10Mr. Kusi did not go far. Mr. Kusi stopped the Vehicle, on the roadway, in front of someone's driveway.

11Officer Gill got out of his Vehicle. Officer Gill told Mr. Kusi he was arrested because there existed an outstanding warrant for his arrest. Mr. Kusi got out of his Vehicle and put his hands on the roof of his Vehicle.

12As Officer Gill approached Mr. Kusi, Mr. Kusi bolted away from the Vehicle and Officer Gill, running westbound down Summit Green. Mr. Kusi left the Vehicle unlocked and exactly where it was.

13It was not clear whether the driver's door of the Vehicle was ajar when Mr. Kusi ran away, but nothing turns on this. I find that the Vehicle, door ajar or not, would have to be moved by the police given that: Mr. Kusi was being arrested and the Vehicle was left by Mr. Kusi on the roadway, blocking a private driveway.

14During Mr. Kusi's attempt to evade the police, his keys to the Vehicle were dropped or fell to the ground. Mr. Kusi told the police his keys had "fallen" during the foot chase. Whether this was done deliberately or accidently by Mr. Kusi is not known but it makes no difference to the outcome of this application. There is insufficient evidence for me to conclude that this "loss" of the Vehicle's keys was an attempt by Mr. Kusi to further distance himself from the Vehicle or that Mr. Kusi had deliberately abandoned all interest in the Vehicle.

15Officer Gill gave chase but eventually gave up, fearing Mr. Kusi would "circle around" and return to his Vehicle to escape.

16Other police officers had been summoned by Officer Gill. Shortly thereafter, Mr. Kusi was arrested at 3 Summit Green Road, not far from the abandoned Vehicle.

17When Officer Gill returned to Mr. Kusi's Vehicle, he decided to conduct a search incident to arrest. Officer Gill testified he was looking for documents verifying Mr. Kusi's identification.

18Officer Gill also decided to do an inventory search. I accept Officer Gill's evidence that the inventory search was reasonably necessary because Mr. Kusi's Vehicle would have to be towed and, in fact, a tow truck was called to tow the Vehicle.

19As a result, I find that an inventory search under the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA") was also reasonable and necessary in the circumstances because the Vehicle was (or would as a result of Mr. Kusi's arrest) be apparently abandoned.

20Officer Gill started his search on the driver's side of Mr. Kusi's Vehicle. During this portion of the search, Officer Gill observed a cover over, what he believed, was a "small little storage compartment" on the left side of the dashboard (to the left of the steering wheel). This cover had a slot, on the underside, to place one's fingers, to facilitate opening the cover.

21Officer Gill proceeded to remove the cover in this manner. The cover came off with little effort. No tools were required. No destruction to the Vehicle was done as the cover was meant to be removed to access the area behind it. Officer Gill discovered it was not a compartment but was an access panel to the Vehicle's electrical/fuses behind it.

22The Defence submits that Officer Gill also referred to this as an electrical box rather than a compartment during his evidence. In my view, that reference does not undermine Officer Gill's evidence that, at the time he removed the cover, he believed it was a compartment and only became aware it was an access cover to the electrical wiring behind the cover, after the cover was removed. I accept this evidence.

23Once the cover was removed, Officer Gill observed a portion of a "baggie" in the area. Considering this unusual, Officer Gill pulled out the baggie and saw purple substance in it. Officer Gill recognized the contents to be drugs, eventually determined to be 37 grams of fentanyl (which is not disputed).

24Officer Gill then completed the rest of the search of the Vehicle. Nothing else of significance to this application was discovered.

25Mr. Kusi was charged with possession of fentanyl for the purpose of trafficking and flight from the police.

THE POSITIONS OF THE DEFENCE AND CROWN

26The Defence submits that Mr. Kusi's s. 8 Charter rights were violated as the search and seizure of the drugs was unreasonable and should be excluded under s. 24(2) of the Charter.

27The Crown submits that Mr. Kusi had abandoned the Vehicle or, alternatively, the search was permitted by law under the HTA as "apparently abandoned" and was conducted in a reasonable manner. In any event, the Crown submits that the drug evidence should NOT be excluded under s. 24(2) of the Charter.

28The Crown does not rely on the police's authority for an "incident to arrest" search of the Vehicle.

ANALYSIS

The Law

29Section 8 of the Charter states:

Everyone has the right to be secure against unreasonable search or seizure.

30Warrantless searches are prima facie unreasonable. The onus is on the Crown to demonstrate, on the balance of probabilities, that the warrantless search is reasonable.

31For a search to be reasonable under s. 8 of the Charter, it must be: i) authorized by law; ii) the law itself must be reasonable; and iii) the search must be carried out in a reasonable manner. See R. v. Caslake, [1998] 1 S.C.R. 51, 155 D.L.R. (4th) 19, at para. 10.

Issue #1: Was the Vehicle abandoned such that Mr. Kusi had waived his s. 8 of the Charter?

32The starting point for analyzing any claim under s. 8 of the Charter is to determine whether a state action intrudes upon a reasonable privacy expectation. See R. v. Wise, [1992] 1 S.C.R. 527, at p. 533; and R. v. A.M., [2008] 1 S.C.R. 569, at para. 8.

33A person's expectation of privacy is determined by an assessment of the totality of the circumstances. See R. v. Edwards, [1996] 1 SCR 128. Ultimately, the "question is whether the personal privacy claim advanced in a particular case must, upon a review of the totality of the circumstances, be recognized as beyond state intrusion, absent constitutional justification, if Canadian society is to remain a free, democratic and open society". See R. v. Ward, 2012 ONCA 660 at para. 87.

34The analysis turns on what law-abiding people in Canadian society would reasonably expect to remain private from the state, in the same circumstances, without regard to any evidence of illegality that the police action happened to reveal in the particular case. See Reeves, at para. 28; R. v. Spencer, 2014 SCC 43, at para. 36; and R. v. Patrick, 2009 SCC 17 at para. 32.

35There is no dispute that a person has an expectation of privacy in a vehicle owned by that person, albeit a privacy interest less than in the person's home or office: See R. v. Harrison, 2009 SCC 34.

36A person is entitled to waive their constitutional rights, including their s. 8 Charter rights. One way to do so is when a person's property is deliberately abandoned, thereby extinguishing that person's expectation of privacy, under s. 8 of the Charter, in that property.

37The test for abandonment is whether a reasonable and independent observer would find that an accused person's continued assertion of a privacy interest in that property is unreasonable in the totality of the circumstances. See R. v. Patrick 2009 SCC 17 at para 25; and R. v. Harrison [2009] SCC 34 at para 30.

38In this application, the Crown submits that Mr. Kusi abandoned the Vehicle and thereby fully waived Mr. Kusi's s. 8 Charter rights in that Vehicle.

39In my view, it is not necessary to decide this issue on this application.

Was the search authorized by s. 221 of the HTA?

40Section 221(1) of the HTA provides:

A police officer or an officer appointed for carrying out the provisions of this Act who discovers a vehicle apparently abandoned on or near a highway or a motor vehicle or trailer without proper number plates may take the vehicle into the custody of the law and may cause it to be taken to and stored in a suitable place. (emphasis added)

41In my view, given the circumstances in this case, the application can be determined as to whether the search was authorized under s. 221 of the HTA and whether the search was carried out in a reasonable manner.

42There is no challenge to the constitutionality of s. 221 of the HTA in this application.

43The first issue to determine is whether the Vehicle was "apparently abandoned".

44The Defence submits that the Vehicle was not "apparently abandoned". I reject this submission because the evidence establishes that:

a) Mr. Kusi left the Vehicle in the roadway. b) The Vehicle was blocking a third party's private driveway. c) Mr. Kusi ran away from the Vehicle. d) Mr. Kusi left the Vehicle unlocked. e) Mr. Kusi didn't have the keys to the Vehicle when arrested. f) Mr. Kusi was arrested on the authority of an outstanding arrest warrant, so that he would not be able to move the Vehicle. g) the police would have to move the unlocked Vehicle blocking the roadway and someone else's driveway.

45I come to the same conclusion as did the Court of Appeal in Ellis, at paras. 60 - 66. Mr. Kusi had "apparently abandoned" the Vehicle, engaging s. 221 of the HTA:

[60] The appellant further submits that the Acura was not "apparently abandoned" within the meaning of s. 221 of the HTA, given that the appellant was under arrest for an HTA offence and admitted to being the driver.

[61] There is no merit in this submission. The appellant fled from the police and admitted to trying to avoid arrest on his outstanding warrants. He then parked and locked the car in a mutual driveway to which he had no right or association, and then walked away. His actions up to that point were consistent with those of someone who wished to dissociate himself from the vehicle.

[62] The test for abandonment articulated by the Supreme Court of Canada in R. v. Patrick, 2009 SCC 17 , [2009] 1 S.C.R. 579, [2009] S.C.J. No. 17 is whether the individual acted in a manner that a reasonable and independent observer would believe, based on the totality of the circumstances, that a continued assertion of privacy over the object was unreasonable. That case involved the search of the accused's garbage. It is worth noting that s. 221 speaks of "apparently abandoned" vehicles.

[63] The determination of whether a vehicle is apparently abandoned is necessarily fact specific. In this case, the moment the appellant left the car the police had authority to impound it under s. 221(1) and then to conduct an inventory search.

[64] In the alternative, the appellant submits that, even if the vehicle was "apparently abandoned", the search was unreasonable as the registered owner was known to the police and the appellant or his passenger should have been given the opportunity to arrange for the car's removal.

[65] In my view, the eventual discovery of the identity of the driver and his subsequent arrest did not change the fact of the apparent abandonment of the vehicle. As a practical matter, nothing changed once the appellant was arrested and taken back to vehicle in handcuffs. He was under arrest and had no ability to move the vehicle. The police were not obligated to permit the appellant to make other arrangements for moving the car and their failure to do so in this case is insufficient to establish an unreasonable search: see Nicolosi, at para. 17. Nor was there any evidence that the appellant requested the opportunity to do so.

[66] In summary, I conclude that the trial judge made no error in his conclusion that the search of Acura was authorized by law as an inventory search conducted pursuant to the police power to impound under s. 221(1) of the HTA. Accordingly, since the law itself is not unreasonable and the manner of search is not challenged, the inventory search did not violate the appellant's s. 8 rights.

46Having concluded that the Vehicle was "apparently abandoned", the police had the right to conduct an inventory search of the Vehicle under s. 221 of the HTA.

47In R. v. Ellis, 2016 ONCA 598, the Court of Appeal set out the following principles for inventory searches under the HTA:

[48] Doherty J.A., writing for the court, observed that no one in the position of the accused could reasonably expect that the police would not enter the vehicle that was in their custody. Accordingly, he concluded that the search did not infringe the accused's reasonable expectation of privacy in violation of s. 8. However, he stated that, if he was wrong, and the accused's privacy rights were engaged, the search was a warrantless search authorized by law. Doherty J.A. reasoned that the police had a responsibility to keep impounded property safe and that, in order to fulfill that responsibility, they must have the authority to search and inventory the vehicle. It is noteworthy that, in reaching this conclusion, Doherty J.A. distinguished Caslake on the basis that in that case there was no statutory authority for an inventory search, as the search was performed pursuant to an internal RCMP policy.

[49] In R. v. Wint (2009), 2009 ONCA 52, 93 O.R. (3d) 514, [2009] O.J. No. 212, leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 164, 399 N.R. 397, the accused was arrested for stunt driving and his vehicle was impounded. The police conducted an inventory search and located a small bag, which they believed might contain a gun. They opened the bag and a quantity of crack cocaine and marijuana was discovered.

[50] On appeal, the accused argued that this court should have rejected the testimony of the police officers that they were conducting an inventory search and found that they were searching for a gun. This court rejected that argument, noting that the trial judge did not find that the search was a sham or that it was conducted for an improper or ulterior purpose. Relying on R. v. Caprara, [2006] O.J. No. 2210, 211 O.A.C. 211 (C.A.), at para. 8, this court also stated that the fact that the police may also have been looking for a gun did not render the search unlawful.

[51] This court rejected the accused's other principal submission, being that the police were limited to itemizing visible property and had no authority to open the bag. The court found this argument contrary to the underlying rationale for inventory searches -- safeguarding the vehicle's contents. Police had to be able to review the contents of the bag to understand what was contained therein. (emphasis added)

48In these circumstances, I am satisfied that Officer Gill was entitled to conduct the inventory search of the Vehicle.

49The Defence submits that Officer Gill's inventory search was limited to searching for "identification". I reject this submission. First, this conflates rights to search incident to arrest, which may impose limitations on the scope of a search. Second, as this search was authorized under the HTA, the inventory search was not limited to items of identification.

50This conclusion is consistent with the reasoning in R. v. Wint, 2009 ONCA 52, where the Court of Appeal affirmed that a search was nevertheless authorized under section 221(1) of the HTA even after the searching officer, while looking for firearms, found drugs during the inventory search. In Wint, the drugs were admissible in evidence.

51Let me now turn to the issue of whether the manner of the inventory search was reasonable. The Defence submits it was not. I reject this submission.

52In Wint, at para. 15, the Court of Appeal made it clear that an inventory search permitted the police to search items, not only those visible but to open compartments in the vehicle such as glove boxes, consoles, and trunks. In one case, the police were, as part of an inventory search, permitted to actually remove a trunk lining. See R. v. Elliott, 2014 ONSC 2764.

53In this case, the accepted evidence of Officer Gill, is that he believed there was a compartment that could be accessed by lifting (or removing) the cover which was designed to be removed by the finger "holes". And it was removed easily. No tools. No destruction.

54Officer Gill had the responsibility to inventory what was in the "believed" to be compartment, as well as the rest of the Vehicle, before turning the Vehicle over to the tow truck operators.

55The search of this compartment was not a sham or an attempt to conduct a more intrusive search beyond inventorying items within the Vehicle. There was no evidence of any subterfuge or impropriety in Officer Gill's intentions, reasons for his actions or method of searching the Vehicle.

56I conclude, the method and extent of Officer Gill's search was conducted in a reasonable manner consistent with the purpose and intent of an inventory search set out in R. v. Elliott, 2014 ONSC 2764 at para. 39.

57Accordingly, there was no s. 8 Charter breach.

Should the evidence be excluded under s. 24(2) of the Charter?

58Should I be wrong that there was no s. 8 Charter breach, I am satisfied that all three Grant factors favour admission of the evidence:

a) The breach would have been at the less serious end of the spectrum. Officer Gill honestly believed he had a valid basis in law to search the Vehicle. There is no evidence of a systemic pattern of such allegedly Charter violating behaviour.

b) Mr. Kusi had a reduced expectation of privacy in his Vehicle, particularly given the circumstances of this case.

c) Society's interest in adjudication on the merits is high, given that the fentanyl was reliable evidence. Exclusion of the fentanyl would gut the Crown's case. If there should be a finding of guilt, a lengthy custodial sentence will likely be imposed given the quantity and type of drugs found in the Vehicle.

59In my view, considering all these factors, the circumstances of this case warrant the admission of the fentanyl and its exclusion would bring the administration of justice into disrepute.

Conclusion

60The Defence Charter application is dismissed.