Counsel:

K. Slate Counsel for the Crown

D. Brown Counsel for Shawn Dennis

S.R. CLARK J. (orally):—

¶ 1      At the outset, I would like to compliment both counsel for your very able submissions on this complex issue.

¶ 2      The defendant, Shawn Dennis is charged on December 21st, 2004 with the following offences: Attempt to obstruct justice by giving a false name to a police officer, under s. 139(1) of the Criminal Code; breach of recognizance which was to have remained in his residence; carry a concealed weapon which was an exacto knife; a further breach of recognizance which was not to possess any weapons; and possession of marijuana. The Crown proceeded summarily in these proceedings.

¶ 3      The defendant brought a charter application alleging a breach of his s. 8, s. 9 and 10b rights. He claims there was an arbitrary detention under s. 9, unreasonable search and seizure under s. 8, and that he was not provided with his rights to counsel under section 10b. A voir dire was conducted. This ruling is yet another example of the conflicting imperatives of the public's interest in being left alone versus intruding on an individual's privacy in order to advance the goal of law enforcement.

¶ 4      The following is a brief summary of the evidence. The defendant testified that he went to work on December 21st, 2004. His shift was from 3:00 p.m. to 11:00 p.m. It was his second day on the job. He was placed through an employment agency. His job was to cut open boxes of meat with an exacto knife and dump the meat into a bin. He finished work early and called a friend to pick him up to take him home to his grandmother's house where he was living. The car he was in drove though an amber or red light thereby attracting the attention of a police officer who followed them to further investigate this Highway Traffic Act violation. He ultimately pulled them over. The defendant in the front passenger seat, the driver, and passenger in the back seat all were black. They all noticed that the officer was following them, this was over a period of one and a half to two minutes. The defendant stated that he was wearing his seatbelt. The officer went to the driver's side and advised the driver that he ran a red light. He asked for identification from the driver who produced same. He left to go to his cruiser then returned and came around to the passenger side and asked the defendant for his identification. He didn't say why. The defendant told him he didn't have any on him. The officer asked him to step out of the vehicle and then brought him back to the police cruiser asking him why he didn't carry identification on him. The defendant told him he was just coming from work. The officer then asked him if he had any weapons or anything else he might need to know about. The defendant said, "no sir." The officer then told the defendant to, "stand there" and went back to the driver and other passenger to ask them the name of the defendant. The defendant had given a false name to the officer back at the police cruiser. He did so because he knew he wasn't supposed to be out, or even at work without his surety who was his grandmother. He didn't know that he did not have to give a name at all, he just felt obligated to do so. The officer never told him that he didn't have to give a name. Within five minutes another officer arrived for backup. This second officer also had dealings with the defendant. The first officer came back after making further inquiries and asked the defendant what his real name was. He told the defendant that it would make it much easier for him if he did. The defendant also gave the officer two false phone numbers. The officer took the defendant's cell phone and called the numbers in an effort to speak to the defendant's mother, only to be told by those on the other end of the phone numbers that they were the wrong numbers. The officer then went through the defendant's phone listings and saw one that said "mom". The officer called and spoke to the defendant's mother who confirmed his identity. The officer then arrested the defendant and searched him. He was not given his rights to counsel. The officer found the exacto knife at the police station. He was searched again. The officer found less than one gram of marijuana in his jacket pocket. The defendant was never given a ticket for not wearing a seatbelt.

¶ 5      Constable Artkin was the only witness called by the Crown in the voir dire. He testified that he has been an officer with Peel Police for almost three years, since January 2003. This was only his third time testifying in court. His duties on December 21st, 2004 included general patrol in a fully marked cruiser. At approximately 10:30 p.m. he noticed the subject vehicle travelling northbound on Bartley Boulevard, at the intersection of Main Street in Brampton, and that it was going through a red light. He followed it, activated his roof lights and sirens, and one to two minutes later pulled it over at Charolais and Huggins Street. As he approached he noticed three males. He noticed the passenger in the rear and the defendant passenger in the front seat were not wearing their seatbelts. He advised the driver of the reason for the traffic stop and asked for his driver's license, ownership, and insurance. He then asked the passengers why they weren't wearing their seatbelts. He asked for their identification as they had committed a Highway Traffic offence. The rear passenger produced a driver's license, however, the defendant was unable to produce any identification. The officer then attempted to get information from the defendant in furtherance of his investigation. His recitation of the facts and circumstances is essentially the same as that of the defendant. When he finally got he defendant's correct name, he ran a check on him and determined that he was on the recognizances indicated. The subsequent searches resulted in an exacto knife with a five inch blade and some marijuana being found. He claims however that the knife and the drugs were located at the same time. Subsequently, he provided the defendant with his rights to counsel. The driver and other passenger were cautioned regarding the red light and the seatbelt infractions and were told they were free to go. The defendant was taken to the police station.

¶ 6      On cross-examination the officer indicated that he did not call for any backup. It was toward if not the end of his

shift. Another officer arrived on the scene and must have heard on his radio that Constable Artkin was booking out. He stated that the second officer, Cst. Healy was present while he had some conversation with the defendant. Constable Artkin never discussed this matter then or subsequently with this other officer and therefore does not know what he may have seen or heard. In any event, the other officer's notes were never provided as part of disclosure. Cst. Artkin acknowledged that he believed that the three men in the subject car knew that he was following them. He could see them moving in the car but could not tell they were black until he was approaching the driver's side door. It was dark outside. He took the rear passenger's license because this is what he had produced to the officer. He said that he ran a check on it to determine if his license was still valid and to make sure he wasn't committing any criminal offences in terms of possible recognizances, probations, outstanding charges, or warrants for his arrest. He stated that he was initially investigating the Highway Traffic offence and to possibly write a Provincial Offences Act notice. He acknowledged that when he first spoke to the other passenger and the defendant he did not believe that either of them had committed a criminal offence. After his investigation was over, he did not give anyone a ticket for any Provincial Offences Act or Highway Traffic Act offence. It only took about one minute for the officer to figure out that the defendant was not who he said he was. He had detained him for approximately thirty minutes before ultimately reading him his rights to counsel. He formed the opinion that he had reasonable and probable grounds at 11:24 p.m. and waited a further six minutes before rights to counsel were read.

(a) s. 9 ARBITRARY DETENTION

¶ 7      Mr. Brown, on behalf of Mr. Dennis, submits that in relation to s. 9, the evidence is clear that the defendant was detained at the point when the officer stopped the vehicle. He further submits that the detention was arbitrary and therefore triggers s. 9. He asks the Court to accept the defendant's evidence that he was wearing his seatbelt, and that this was uncontested or unchallenged on cross-examination. In any event, he asks the Court to consider the further circumstantial evidence that if the defendant knew that the police officer was following, and knew that he was not supposed to be out, that he would surely have adverted to not wanting to give any reason for the officer to question him. Mr. Brown also asks the Court to consider in the grand scheme of things, that the officer did not ultimately charge anyone with a seatbelt infraction.

¶ 8      Mr. Brown also asks the Court to consider the officer's credibility. The motive for him stopping the vehicle and asking for the identification was to check if there were outstanding recognizances or charges, thereby creating an ex post facto justification for the stop and the subsequent search.

¶ 9      Furthermore, the defence asks the Court to consider that the second officer was on the scene and was apparently a witness to some of this exchange between Officer Artkin and the defendant, and that this officer might have had an inconsistent account. In any event, there was no further evidence called by the Crown. The first officer didn't even note the second officer's arrival or presence in his own notes. Mr. Brown therefore asks the Court to consider that this does not bode well for Officer Artkin's credibility.

¶ 10      Mr. Brown finally submits that the Court need not make a finding whether the defendant was wearing his seatbelt or not. The only justification for the officer writing a ticket would have been by asking for identification. The fact that the officer indicated in his evidence that it was only possible that he was going to write the ticket, is what makes this detention arbitrary.

(b) s. 8 UNREASONABLE SEARCH AND SEIZURE

¶ 11      In relation to s. 8, the unreasonable search and seizure, Mr. Brown essentially submits that the officer did not have that option available to him to continue his search. The fact that he took the cell phone from the defendant, out of his hand and scrolled down to locate his mother's number was a warrantless search and therefore prima facie, unreasonable. Mr. Brown submits that the case law supports the defence position that the officer had no legal authority to take someone's phone, who wasn't yet under arrest, and that this was not a search incident to arrest. In any event, on the basis that the R. v. Mann, [2004] 3 S.C.R. 59, analysis an officer may have authority for purposes of officer safety to perhaps do a pat down search, but had no right in these circumstances to take the phone in furtherance of his investigation.

(c) RIGHTS TO COUNSEL

¶ 12      In relation to section 10b, Mr. Brown submits that after the officer spoke to the defendant's mother, he now had the reasonable and probable grounds to arrest the defendant. On cross-examination, however, he was asked why he did not read the defendant his rights to counsel at this time. The officer's response was, "because I wanted to further the investigation." Mr. Brown submits that what that means therefore is that the officer wanted to elicit an inculpatory statement. It is clear that the officer should have read the rights to counsel to Mr. Dennis at that time and that this was a conscripted statement and therefore should be excluded.

¶ 13      The Crown's position is essentially that there were no charter violations. To the extent that there may have been a s. 10(b) violation, this would not be applicable to the location of the knife and the drugs as these were real evidence. Even if the investigation relating to the obtaining of the name of the defendant was inadmissible, this would not affect the admissibility of the knife and the drugs.

¶ 14      In relation to s. 8 and s. 9, Ms. Slate submits that this was not a ruse by the officers to pull this vehicle over, but was indeed a legitimate Highway Traffic Act investigation. It ultimately served a dual purpose, when it turned into a criminal investigation. The officer was entitled to ask for identification for purposes of investigating the Highway Traffic Act matter, and in the course of that a criminal investigation ensued.

(a) s. 9 - ARBITRARY DETENTION

¶ 15      S. 9 of the Charter guarantees that everyone has the right not to be arbitrarily detained or imprisoned. The Supreme Court of Canada has defined the term as including any occasion when a police officer, by some form of compulsion or coercion assumes control over the movement of a person by a demand or direction, which may have significant legal consequence. Even where an individual is not subject to physical force or to a legally enforceable demand, psychological compulsion in the form of a reasonable perception of suspension of freedom of choice, could result in detention within the meaning of the Charter. The Supreme Court in R. v. Mann has indicated, however, that the constitutional rights recognized by s. 9 and s. 10 of the Charter are not engaged by delays that involve no significant or psychological restraint.

¶ 16      By its very terms the right that s. 9 secures is a relative one. There are clearly situations where the authorities must have the power to detain or imprison individuals. The Charter right is therefore engaged only where denial of freedom is arbitrary. Yet, the Supreme Court has interpreted "arbitrarily" in a manner that would appear to favour individual liberty. The Court has recognized the danger posed by giving the police unfettered discretion to detain. There must be some objective standard defined by the law, governing the power. The importance of highway safety and the deterrent function served by these authorized traffic stops is found to be a reasonable limit on the right conferred by s. 9. In the absence of reasonable and probable grounds for a more intrusive investigation however, questioning by the police when acting under this legislation is constitutionally restricted to checking the driver's license and insurance, sobriety and the mechanical fitness of the vehicle.

¶ 17      In R. v. Mann, the Supreme Court recognized a common law power of investigative and warrantless detention that is consistent with both s. 8 and s. 9 of the Charter. Police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary. The Court added that the investigative detention should be brief in duration and does not impose an obligation on the detained person to answer questions by the police.

¶ 18      Another way to examine the impact of this Charter right is to understand the difference between two abstract models. First, the "crime control" model focuses on finding and punishing the guilty through efficient police and prosecutorial work. Second, the "due process" model focuses on controlling the exercise of police powers through an elaborate series of procedural guarantees, violations of which results in the release of the accused regardless of guilt or innocence. Our judicial system exhibits features of both models. Crime control exists to protect society from those individuals whose behaviour causes harm. It is achieved through coercive state power which inevitably involves risks of abuse and oppression. To guard against these risks the criminal process has procedural protections designed to ensure that individuals are treated fairly and humanely. The "golden threads" include the presumption of innocence, the right to silence and the right to counsel. These due process factors restrain the exercise of coercive powers in a significant way.

¶ 19      They are designed to protect the innocent and to avoid the risk of wrongful conviction, but they also benefit the

guilty since they ensure that everyone involved in the criminal process should be treated fairly. It is not possible to have a scheme of rights that protects only those who are innocent of any wrongdoing. Procedural rights often cause consternation and indeed criticism when they assist the apparently guilty, yet this is the price to be paid in a free and democratic society where rights are enjoyed by all individuals.

¶ 20      Recent case law from this jurisdiction is worthy of note on this issue. The case of R. v. Pinto (2004), 46 M.V.R. (4th) 263, is a decision of Justice Hill of the Superior Court. The investigating officer stopped a car in which the defendant was a passenger because the officer had heard loud music which was in breach of s. 75 of the Highway Traffic Act. The driver was asked to produce identification. The officer then asked the defendant to provide identification. He checked and determined that the defendant was on probation and on a recognizance. The officer questioned the defendant to determine if he was in breach for not reporting his change of address. The officer asked the defendant to step out of the car. During a search a struggle ensued. The defendant was charged with assaulting a peace officer and three offences relating to a prohibited weapon. The Court held that the officer's testimony did not explain why he asked the defendant for identification when he stopped the car for a noise offence. No evidence existed of a subjective belief, nor any objectively reasonable basis for believing that the defendant was involved in or responsible for operation or control of the radio in the car. Subject to the issue of informed consent, a request for information or identification of the passenger amounts to a search and seizure within the meaning of s. 8. The officer did not have reasonable and probable grounds for believing the defendant was in breach of a bail order. There was no lawful reason that existed to have the defendant removed from the car. This unconstitutional conduct negated the police lawful execution of duty and therefore the evidence was excluded and the Crown failed to prove all elements of the offence. A traffic stop is a lawful and justifiable exercise of police authority in furtherance of highway legislation enforcement and public safety, under s. 216(1) of the Highway Traffic Act. It must not however, be a ruse or gimmick for general criminal investigatory work. (see R. v. Mellinthin (1992), 76 C.C.C. (3d) 481) There is a concern that a traffic stop can mask abusive or excessive use of police authority as the real motive for the detention. The alleged commission of Highway Traffic Act offences is highly subjective in nature and is generally unfettered by objectively independent verification. In other words, the allegation can be subject to interpretation, reasonable dispute or abuse.

¶ 21      Justice Hill acknowledged that Pinto was not a case about racial profiling. However, the importance and experience and perspective of visible minorities respecting the police often serves to inform their beliefs about the realistic existence of free choice in dealing with the police. An otherwise lawful traffic stop does not and cannot constitute a general search for every driver, vehicle, and passenger that is pulled over.

¶ 22      The police have been found to have exceeded the limits of s. 216(1) of the Highway Traffic Act in asking passengers for identification. (see Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1. Therefore the defendant in the Pinto case was entitled to sit in the front passenger seat and be left alone while the driver was being investigated. As a general rule, a passenger cannot be subjected to a non-consensual, or dragnet, or general investigative questioning, or production of identification. An officer is not engaged in a lawful execution of duty in proceeding to ask for identification in those circumstances.

¶ 23      What is readily apparent is that there is no constellation of objectively discernible facts for believing the defendant was in breach of a recognizance. This is the test set out in R. v. Simpson. Accordingly, on both a subjective and objective basis, no articulable cause existed for a lawful investigative detention. What did exist, as Justice Hill described it, was an "out of control" traffic stop.

¶ 24      More recently Justice Hill ruled in the case of R. v. McKennon, [2004] O.J. No. 5021, 2004, WL2828514. In this case the defendant asserted an ulterior motive for detention. The Court found that there were no reasonable and probable grounds that existed to stop the car and its two black occupants, as the officer could not have made the observation of the interior of the car to see that the defendant's passenger was not wearing a seatbelt. In this case the officer was on routine patrol at a traffic light, when he observed a passenger in the vehicle driven by the accused, not wearing a seatbelt. The officer recognized them both from previous dealings. As he approached the car he smelled burnt marijuana and saw a quantity of it on the floor. A subsequent search of the car disclosed a firearm in the glove box. The charge of possession of a firearm without holding a licence was dismissed at trial. The Court found that the s. 8 and s. 9 rights of the defendant were violated and the evidenced was excluded.

¶ 25      The Court found, inter alia, that the note-taking of the two officers was entirely unsatisfactory as they did not make contemporaneous notes. There was no mention in the first officer's notes of there being a seatbelt that was not worn. The Court could not conclude that the officer made a lawful traffic stop. Subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnic origin, or sexual orientation. Traffic stops are generally low visibility interactions. Scrutiny by the courts is critical to curb abuses of power. In a traffic stop case the discharge of proof or compliance with s. 9, should be on the state, especially where the alleged arbitrariness arises from an alleged absence of reasonable and probable grounds. It is perhaps appropriate to indicate that the McKennon case turns on its own facts and the Court's specific evaluation of the officer's credibility and reliability regarding note-taking.

¶ 26      The present case also turns on the credibility and reliability of the witnesses. The defendant claims he was wearing his seatbelt. The officer claims he was not. This is pivotal because if the defendant was wearing it, the officer had no general power to investigate him as it goes beyond the bounds of the activity under investigation, which was running the red light by the driver of the vehicle. The only way in which the officer can justify his involvement with the defendant is to observe an apparent commission by him of a Provincial Offences Act offence. Otherwise, his asking for identification is merely a "fishing expedition", that is, police using a general power of detention to satisfy their curiosity. The Simpson case stands for the proposition that a hunch based entirely on intuition gained by experience cannot suffice, no matter how accurate the hunch may prove to have been.

¶ 27      On the other hand, if the defendant was not wearing his seatbelt, the Court should find that the officer's actions did not amount to an arbitrary detention and that he was entitled to investigate further to obtain the defendant's name for purposes of determining whether or not to issue a Provincial Offences Act notice.

¶ 28      The present case is distinguishable on its facts from McKennon, in that the officer in the present case clearly had both subjective and objective grounds and articulable cause to initiate the traffic stop because of the running of the red light. However, the Court is not prepared to find that the defendant was not wearing a seatbelt at the relevant time for the following reasons: The Court cannot disbelieve or reject his evidence on this point. Although the defendant was prevaricating, which is a fancy way of saying he was being untruthful on virtually everything else, at least in relation to his verbal exchanges with the police officer about his name, the Court prefers his evidence to that of the officer on the issue of the seatbelt. It would be illogical and indeed folly for him, knowing that the police were following him because of the red light, that he would not advert to the fact that his seat belt was not on. Mr. Dennis would want to do anything he could to give off the outward appearance at least, of looking compliant so that he would not draw attention to himself and avoid questioning by the officer. The defendant knew he was in trouble and in breach of his recognizance being out without his surety. He did not want to invite any scrutiny by the police at all.

¶ 29      The Crown did not call any corroborative evidence on this point. This is not fatal of course if the Crown does not, but it might have tipped the balance on this issue if they had. The defendant could have called further evidence himself on this point. Similarly however, this is not fatal to his position. Whether or not the Court adopts the approach in the McKennon case that the Crown has the onus to show reasonable and probable grounds for the detention or whether it falls to the defendant to demonstrate a Charter violation, on a balance of probabilities, the Court finds that the Crown has not met its onus while the defendant has.

¶ 30      The Court should comment on the note-taking of the officer. Unlike the McKennon case where the police notes excluded reference to a seatbelt, in the present case the officer did make an entry in his notes that the defendant and indeed the rear passenger were not wearing seatbelts. The Court finds however that this was self-serving and on a balance of probability, not reliable. The fact that the officer did not ultimately issue a Provincial Offences Act notice for a seatbelt violation to the two passengers is perhaps of no moment. To do so, after all that had happened would, to use the words of the officer, perhaps be unfair. Nonetheless, it is a factor to consider in terms of the overall reliability of what the motives were for the officer that evening.

¶ 31      What the Court does find is that the seatbelt part of this transaction became the pretext for investigating someone who did not need to be investigated, given the nature of the specific activity under investigation which was the running of the red light. To his credit, the officer candidly acknowledged that he thought he could check and should check these individuals out to see what he could find out about possible breaches or recognizances. These are all laudable aims under the crime control model, however under the due process model they are excessive.

¶ 32      In Pinto at para. 71, Justice Hill quotes the words of Justice Cory in Mellinthin that, "an unreasonable search or seizure at a traffic stop without any reasonable and probable cause goes far beyond the purposes of those stops and constitutes a very serious charter breach." Police over-extension of traffic stops, even where police bad faith is not present, involves an unacceptable and serious violation.

¶ 33      The Court also notes that the Pinto decision was in fact decided within the context of s. 8. The same analysis, however, is equally applicable to a s. 9 charter violation. At para. 40 of the McKennon decision, Justice Hill found that where the Court concludes the traffic stop leading to the search and seizure was arbitrary, there has been a serious breach of a constitutional right. Admitting the seized evidence would tend to diminish the message in this jurisdiction that the government must lawfully obtain its proffered evidence in vehicle stops and transparently and clearly articulate the grounds for any seizures.

¶ 34      Finally, without appearing to be too harsh on the police, who have at times enormous pressures and expectations placed on them to perform their duties with the precision of a legal scholar and the wisdom of Solomon, the courts can hopefully continue to educate, paternalistically if necessary, to raise the level of awareness now required of effective police work for traffic stops.

¶ 35      The words of the Court in R. v. Clayton, [2005] O.J. No. 1078, are perhaps instructive, although seemingly harsh.

"Courts can demonstrate that constitutional rights are to be taken seriously by those who exercise powers that impinge on those rights by excluding evidence obtained by constitutional violations that reflect an institutional failure to equip officers with the training necessary to perform their duties within the strictures of the Charter."

¶ 36      Very briefly, turning to s. 8, the above analysis is equally applicable to a consideration of this Charter violation. For substantially the same reasons, the Court finds a s. 8 breach has occurred. As the Court has already noted, the cases of Pinto and McKennon turn on a s. 8 breach. Even if the Court was in error in its analysis of s. 9, dealing with an arbitrary detention, once the officer satisfied himself through speaking to the driver and the other passenger that the defendant was not who he said he was, the officer could have or should have addressed that matter at that time. He conducted a warrantless search and seizure by taking the defendant's cell phone and taking it upon himself to call the defendant's mother to confirm what he knew. This was unreasonable in the circumstances. This was conscripted evidence which affects trial fairness and it does not pass muster under the s. 24(2) scrutiny.

¶ 37      This case is distinguishable from the case of R. v. Coats which was tendered by the Crown. In Coats the Court found as a fact, that the defendant had not been wearing a seatbelt thereby providing grounds to the officer to further investigate. The Court is attracted somewhat to the argument put forward by the Crown that there is a distinction to be made perhaps between an investigation of an offence that has just occurred, as opposed to an offence that is in the process of occurring. The Court fails to see that distinction, however, as being significant.

(c) RIGHTS TO COUNSEL

¶ 38      Once the officer satisfied himself that he had reasonable and probable grounds to arrest and charge the defendant, he ought to have advised him forthwith of his rights to counsel, which he did not. Instead, he stated that he wanted to further investigate the defendant in an effort to see if he could elicit a confession. Although he did not use those words, this was the officer's intent or motive for doing so. It may be correct to say that if a s. 10(b) violation occurs as it relates to the attempt to obstruct justice, that it may have no effect in relation to the obtaining of the real evidence which was the knife and the marijuana. However, for the reasons already indicated, the Court has determined that there has been a s. 8 and s.

9 violation which would affect all of the evidence which was obtained.

¶ 39      In the result, the evidence will be excluded. I take it Ms. Slate that there is no further evidence for the Court to consider, in which case I would then be invited, I take it, to dismiss the charges.

¶ 40      MS. SLATE: That's correct, Your Honour.

¶ 41      THE COURT: Thank you. I might say as a post script, the other submissions that were not the subject of this ruling, but related to a directed verdict, application by the defence were attractive. However, the Court declines to address that issue as it is moot.

¶ 42      MR. BROWN: Thank you, Your Honour.

¶ 43      THE COURT: Mr. Dennis, the charges are dismissed against you and I'm sure that Mr. Brown will explain the analysis.