R. v. Ali, 2019 ONCJ 593

CITATION: R. v. Ali , 2019 ONCJ 593 COURT FILE No.: 0611-998-18-1369 DATE: August 23, 2019 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — Sa’ad ibn ali Before Mr. Justice Richard H.K. Schwarzl at Orangeville Heard on July 22 and August 9, 2019 Reasons released on August 23, 2019 Ms. Aarika Heath .................................................................................................. for the Crown Ms.

Lisa Johnson............................................................................................ for the Defendant SCHWARZL, J.: 1.0: INTRODUCTION [ 1 .] On November 5, 2018 the Defendant, Mr. Sa’ad Ibn Ali, was driving a pickup truck in Caledon and was pulled over by the police.

As a result of that encounter, the Defendant was charged with the offences of driving while disqualified pursuant to section 259(4) of the Criminal Code of Canada and with breach of recognizance contrary to section 145(3) of the Code . [ 2 .] The outcome of this case is to be determined by my assessment of the Defendant’s application that his rights guaranteed by sections 9 and 10 of the Canadian Charter of Rights and Freedoms (the “ Charter ”) were violated by the police prior to his arrest.

If I find that one or more of his rights were violated, the Defendant asks that any incriminating evidence gathered as a result of the breaches be excluded. 2.0: RELEVANT EVIDENCE [ 3 .] Shortly after 8:00 p.m. on November 5, 2018 P.C. Taylor and her coach officer, P.C. Bardy, were on patrol in Bolton when they received a dispatch message regarding a citizen complaint that a man and a woman soliciting money from people in the Bolton LCBO parking lot and had just left in an older model white pickup truck.

There were no details about the ages, races, or identifying features of either person, nor was a licence plate number provided. [ 4 .] About 10 minutes after receiving the message, the officers saw an older model white pickup truck. It was driving a little fast and was coming from the general direction of the liquor store which was over five kilometres away. The truck was occupied by a male driver and a female passenger. [ 5 .] The officers decided to follow the pickup truck and pull it over because the vehicle and its occupants generally fit the description provided by the dispatcher.

The officers said they reasonably suspected the truck and its occupants may have been involved in the situation giving rise to the citizen complaint.

[ 6 .] P.C. Taylor said the reasons to stop the truck included public safety issues, police assistance, and possible offences of soliciting for money and trespassing. P.C. Bardy said that they were concerned about a couple of things, firstly whether there was possible human trafficking going on, and secondly whether the people were possibly homeless. If it was the latter, P.C. Bardy said that they could offer help as the police have coupons to hand out to indigent persons. P.C. Bardy also stated that she relied on her police authority to check for licence, ownership, and insurance.

Whatever the outcome, the police decided to stop the pickup truck to investigate the citizen complaint. [ 7 .] The officers followed the truck for a few kilometers instead of stopping it right away. This gave them the opportunity to run the licence plate, observe the driving behaviour, and to wait to find a safe area in which to pull it over. Neither officer noted any fault or concern about the manner in which the truck was being driven. Both officers agreed that the truck was not pulled over for any traffic or criminal offence, or due to any concerns of the truck’s fitness. P.C.

Bardy had noted that a headlight was out, but this fact played no role in the reason for stopping the truck. Both officers agreed that the reason for the stop was to investigate the complaint and to find out if an offence had been committed and, if not, to help them if they were begging. [ 8 .] Once the truck stopped, the officers approached it. P.C. Taylor dealt with the male driver, who was the Defendant, while P.C. Bardy spoke to the female passenger and the driver’s girlfriend, Ms. Nicole Hisson-Wilson. [ 9 .] P.C. Taylor spoke to the Defendant and told him why she pulled him over. P.C.

Taylor acknowledged that she did not make a notation setting out that she advised the Defendant for the reason for the stop. She believed she did because she is trained to do so and always does it on every stop. P.C. Bardy had no recollection of what P.C. Taylor said to the Defendant because she was busy speaking to Ms. Hisson-Wilson. [ 10 .] Ms. Hisson-Wilson testified. She said that upon being pulled over the police told them through the driver’s window that they were being stopped due a call about a male and female who were asking for money at the LCBO and who then drove away in a white pickup truck.

She was told to get out and was then spoken to by one officer while the other spoke to the Defendant. She could not hear what the Defendant and the other officer said to each other. [ 11 .] The Defendant testified on the Charter voir dire. He said that upon being stopped, P.C. Taylor came to his window and told him that they were being pulled over because someone was begging for change at the LCBO. He testified that the officer never said anything about committing a traffic or criminal offence. He said that he told P.C. Taylor that they were at the drug store buying medication for his girlfriend.

The Defendant testified that once he was pulled over, he felt he couldn’t go anywhere. He stated that he was never told he was being detained for any purpose, which is contrary to the preponderance of the evidence which is that he was told right away why the truck was stopped. [ 12 .] After telling him why she pulled him over, P.C. Taylor demanded his driver's licence, insurance, and ownership. The Defendant produced the insurance and permit. He also gave her an OHIP card in his name, but not his licence.

When asked by the officer, “Why don't you have a driver's licence?” the Defendant replied, “I don't have a driver's licence. I am not licensed.” In his evidence, the Defendant agreed with the description on this point given by P.C. Taylor. [ 13 .] P.C. Taylor took the health card to her police car and ran it on her onboard computer database to verify name, date of birth, and gender. She also found a photograph matching the Defendant as well as a licence number associated to him. On checking the driver's licence number the officer saw a note that the Defendant was disqualified from driving. P.C.

Taylor then radioed the dispatcher to look for more information about the Defendant. The dispatcher confirmed the disqualification and informed the officer that the Defendant was also on a recognizance of bail with conditions to not occupy the driver’s seat of a motor vehicle and to not drive. [ 14 .] Possessed of this information, P.C. Taylor then returned and told the Defendant that he was being arrested for driving while disqualified and breach of recognizance. This was heard by P.C. Bardy. He got out of the truck and was handcuffed. He was offered to be searched by a male officer but declined.

After conducting a pat down search P.C. Taylor placed the Defendant in the rear of her police car. Following the arrest, P.C. Taylor recalled speaking with the passenger who explained that they were not involved in the LCBO incident but were in fact heading home after going to a pharmacy to fill Ms. Hisson-Wilson’s prescription, which was produced to the officers. [ 15 .] It was P.C. Bardy’s recollection that she spoke to the passenger before her partner arrested the Defendant. She then compared the information Hisson-Wilson gave with the information the Defendant provided.

Both parties’ information about going to a pharmacy and not to the LCBO checked out. P.C. Bardy testified that it was at this point that they ran the parties through the dispatch. P.C. Bardy then stated that it was while cuffing the Defendant that he explained that they were out getting medication for his girlfriend. Being

satisfied that no offence had been committed at the LCBO and that neither party was needy, the inquiries regarding the citizen complaintwere finished. [16.] At 10:33 p.m. Taylor provided the Defendant his rights to counsel in the back of the police car, which was within minutes of thearrest. The Defendant responded that he wanted to speak with his lawyer. He said he didn’t have the number but that his girlfriend hadit in her phone. The officer told him that she would retrieve the lawyer’s number and that he could speak with his lawyer in private atthe police station. At Taylor’s request, P.C.

Bardy got the lawyer’s number from Ms. Hisson-Wilson. No evidence was gathered orotherwise acquired by the police after the Defendant was arrested. [17.] The Defendant was then driven to the police station after being given a primary caution by P.C. Taylor.

At the station, theDefendant spoke with his lawyer in private before being held for bail. 3.0: ISSUES AND ANALYSES 3.1: Was the Defendant “detained” so as to trigger his ss. 9 & 10 Charter rights? 3.1.1: Positions of the Parties [18.] The Defendant submits that when the police stopped the motor vehicle driven by him the officers had no legal justification to doso because they were not investigating any offence known to law. He also argues that the police falsely used a pretext of a brokenheadlight to justify the stop. The Defendant submits that he was arbitrarily detained within the meaning of

section 9 of the Charter. Heargued that this breach then led to a breach of his rights under

section 10 of the Charter. [19.] The Crown submits that the police had a legally valid reason to pull over the Defendant. They argue that the police werefollowing up on a nuisance complaint at a local business and that the description of the people and vehicle involved in that complaintgenerally matched the pickup truck stopped and its occupants. The Crown submits that by investigating the nuisance complaint thepolice acted within their authority to stop the pickup truck and talk to the occupants, including the Defendant who, as driver, had anobligation to produce a valid driver's licence when asked. 3.1.2: Relevant Legal Principles [20.]

Section 9 of the Charter guarantees that everyone has the right to be free from being arbitrarily detained.

Section 10 of theCharter provides on arrest or detention every person has the right to be promptly informed of the reasons thereof and to retain andinstruct counsel without delay. [21.] "Detention" within the context of constitutional rights occurs where the police have imposed a significant physical orpsychological restraint upon a citizen that impairs the person's choices in dealing with the police in the context of the entirecircumstances in which the citizen finds himself: R. v. Therens (1985), (SCC), 18 C.C.C. (3d) 481 (S.C.C.) at p. 503; R.v.

Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1 (S.C.C.) at para. 24-44; and R. v. Suberu (2009), 2009 SCC 33 , 245C.C.C. (3d) 112 at para. 21-22. Detention by the police triggers other constitutional rights including those under s. 10 of the Charter: R.v. Grant, para. 22. [22.] In Grant, the Supreme Court set out the test for determining whether or not a citizen is detained at para 44 as follows: In

summary, we conclude as follows: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical orpsychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with therestrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but tocomply. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.

Todetermine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state

of the liberty of choice, the court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police wereproviding general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out theindividual for focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred;the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; levelof sophistication. [24.] Not all encounters with the police will amount to constitutional detention, even where a person is under investigation forcriminal activity, is asked questions, or is physically delayed by contact with the police.

To simply assume that a detention occurs everytime a person is delayed from going his way because the police have stopped and even interfered with him, without considering whetheror not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter: R. v. Suberu, para. 23-24. Everyone who is stopped by the police is detained in the ordinary sense of being delayed or kept waiting. The issue is always whetherthe police have imposed significant restraint, whether physical or psychological, on the person. Actual but minor restraint will notengage the Charter: R. v.

Mann (2004), 2004 SCC 52 , 185 C.C.C. (3d) 308 (S.C.C.); Grant, supra. [25.] Where a person is found to be detained, the detention is only "arbitrary" where it is not legally justifiable: R. v. Mann, supra. Tobe legally justifiable, an officer must have reasonable grounds to detain a person. To be reasonable, the detention must possess anobjectively discernable constellation of facts which may give rise to a reasonable suspicion that the subject has committed or maycommit a crime.

A detention is not necessarily arbitrary even if no crime has been committed provided that basis for the detention ismore than a mere hunch: R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.).

It is the task of the trialjudge to assess the circumstances and determine whether the line between general questioning and detention has been crossed: Suberu,supra. [26.] The police have power to interfere with liberty and investigate only when it is reasonably necessary to carry out their duties suchas preservation of the peace, protection of life and property, and crime prevention given the totality of the given circumstances includingthe extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and thenature and extent of that interference: R. v.

Waterfield, [1963] 3 All E.R. 659 (C.C.A.); Dedman and the Queen (1985), (SCC), 20 C.C.C. (3d) 97 (S.C.C.); R. v. Willis (2003), 2003 MBCA 54 , 174 C.C.C. (3d) 406 (Man. C.A.); R. v. Mann, supra. [27.] Where a person is detained by the police, that person is at their mercy. Thus when a detention has occurred,

section 10 of theCharter must be complied with by the police in that they are obliged to immediately tell the individual why he or she is being sodetained. This will then inform the detained citizen of the extent and quality of his or her jeopardy such that he or she can then considerwhether or not to exercise his or her right to counsel under s. 10(

b) of the Charter before speaking with the police or otherwiseincriminating himself: R. v. Mann at para. 21; R. v. Nguyen, 2008 ONCA 49 , [2008] O.J. No. 219 (C.A.) at para. 20 to 21. 3.1.3: Principles Applied [28.] The parties agree that until the police laid hands on the Defendant to arrest him, he was not physically restrained.

For thefollowing reasons, I find that the Defendant has failed to persuade me that he was probably psychologically restrained to any significantdegree so as to invoke his Charter protected rights prior to his arrest. [29.] The police were not acting on a hunch (that is an intuitive feeling). They acted upon a citizen complaint containing sufficientdetail to reasonably cause them to believe that the pickup truck occupied by the Defendant and his girlfriend might be connected.

Thestop was proximate in both time and place as the truck was seen by police within 10 minutes of the complaint and within 5 or sokilometres of the LCBO and coming from that direction. The age, colour and type of the vehicle closely matched the one described inthe complaint. The number and gender of the occupants was identical to the complaint. The police had no information regarding theages, race, or other distinguishing identifiers to obviously exclude the occupants from possibly being involved.

I find that there wasreasonable nexus between the recent complaint and this vehicle and its occupants. [30.] The officers had a duty to respond to the complaint. It was uncertain to them whether an offence – criminal or provincial - hadbeen committed or whether the occupants, who, if involved, were said to have been begging, might be in need of assistance which theofficers were able and ready to provide. Although one officer noted a burned out head light, this was never relied on by either of them asa reason to stop the Defendant; there was no use, misuse, or false excuse of a traffic offence to justify the stop.

The police were acting

lawfully and in accordance with their duties in these circumstances when they stopped the Defendant’s pickup truck to reasonably inquire if they were connected to the complaint. [31.] The encounter with the Defendant was not one in which he was being singled out. The police were properly making general inquiries about a particular nuisance complaint in which both occupants were spoken to. The police were acting within their powers and duties to stop the pickup truck and ask the occupants about the situation.

The case before me is very similar to Grant , supra, where the Supreme Court found the police had not yet detained Mr. Grant when they asked him what was going on and requested he provide his name and address, upon which Mr. Grant produced a health card. Unlike Mr. Grant, the Defendant as driver had a duty to produce a valid driver's licence upon being lawfully stopped. The demand to produce his driver's licence was a legal direction that did not meaningfully restrict his choice of movement. [32.] I find that the police conduct never possessed an accusatorial or interrogative qualities.

The police were always polite and professional, never confrontational; they were inquisitive but not dictatorial. The police behaviour was not intimidating, inherently or otherwise nor did they engage in any “tactical adversarial positioning” as was found in Grant , supra. Until he was arrested the Defendant was permitted to stay in his vehicle. [33.] The occupants of the pickup truck were clearly told right away that they were stopped due to a begging incident at a nearby liquor store. The police treated both the Defendant and Ms. Hisson-Wilson similarly: with professional courtesy and calm.

The police issued no commands or directions other than to produce licence, ownership, and registration. The encounter prior to being arrested was brief. Nothing more than the minimum amount of time needed was taken to ask the occupants what was going on and to run the Defendant’s identification as driver. [34.] Although a youthful adult, it is clear from the nature of the charges that the Defendant has encountered the police and been detained in the past, giving him some measure of sophistication in the sense that this was obviously not the first time he was confronted by the police. Mr.

Ali possessed no other particular characteristics or personal circumstances relevant to the analysis. [35.] Having lawfully pulled over the pickup truck, the police were authorized to demand the production of a licence and the Defendant was required by law to produce it. This was irrespective of when the occupants of the vehicle provided their explanation which the police accepted as dissociating them from the citizen complaint.

The act of driving is, by its nature, highly regulated and every reasonable driver would think that once stopped the police will probably want to see the driver’s licence as a matter of routine. [36.] I find that in all of the circumstances, while the Defendant was detained in the ordinary sense of being briefly delayed and made to wait, he was probably not detained within the constitutional rights context prior to his arrest because there was no significant or meaningful restraint, physical or psychological.

The situation before me is far more akin to that in Suberu where despite being stopped and asked questions, the accused’s Charter rights were not engaged, as opposed to Grant where the police crossed the line between general questioning and detention. [37.] In

summary, I find that no reasonable person objectively viewing the entire circumstances as they developed would conclude that the Defendant was at any point meaningfully deprived of the ability, or right, to choose how to act or what to say. Therefore, in these circumstances, the Defendant has not shown that it was more likely than not that he was detained so as to trigger his sections 9 and 10 Charter rights prior to his arrest. 3.2: Assuming his Charter rights were violated, should the incriminating evidence be excluded? [38.] If I am wrong and the Defendant’s rights under

section 9 and 10 were breached prior to his arrest, I would not exclude the evidence in this case pursuant to section 24(2) of the Charter . [39.] The purpose of s. 24(2) is to maintain the rule of law and the values underlying the Charter . It is not meant to punish police misconduct or to compensate an accused for violation of his or her rights. The concern of s. 24(2) is systemic. Its focus is long-term, prospective, and societal: R. v. Grant , supra. [40.] Evidence obtained in violation of a Charter right, or rights, is not automatically excluded. To the contrary, it is presumptively admissible.

The burden is upon the Defendant to persuade the court on a balance of probabilities that the admission of evidence obtained in violation of constitutional rights could bring the administration of justice into disrepute.

[41.] In Grant, supra, the Supreme Court created a framework wherein (1) the seriousness of the breach, (2) the impact of the breachon the Charter-protected interests of the defendant and (3) society's interest in the adjudication of the case on its merits are to be assessedand balanced where the court has found an infringement of the defendant's constitutional rights. [42.] Respect for the Charter may be undermined if courts, by admitting evidence, appear to condone deliberate and egregious policeconduct.

Conversely, there may be little impact on the repute of the court process where evidence gathered through a violation wascommitted in good faith by the police. Often the police conduct falls somewhere in between these extremes. In all cases, the court mustassess the conduct of the police in assessing the seriousness of the breach. [43.] In this case, if the Defendant’s rights were breached prior to his arrest the police acted in good faith; they did not believe thatthey violated any of his rights. IF there was detention, the line between mere questioning and detention was fuzzy.

Their conduct wasnot abusive or deliberate. There is no evidence before me of any pattern of police misconduct or gross dereliction of duty in this case orin the past by either officer or by the Caledon OPP with respect to the manner in which they deal with the constitutional rights ofcitizens. If there was a detention is it was very brief. There was no physical contact with the Defendant prior to his arrest. Furthermore,as outlined earlier in my reasons the law recognizes that the line between general questioning and detention is not always clear.

The lackof clarity on the issue of what is or is not a detention that triggers Charter protected rights was extensively reviewed by Brown, JA in hisdissenting reasons in R. v. Omar, 2018 ONCA 975 , [2018] O.J. No. 6346 (C.A.). The Supreme Court of Canada agreed withhis analysis: R. v. Omar, 2019 SCC 32 , [2019] S.C.J. No. 32. If there were breaches in this case, I find that that they fell fardown the scale of seriousness so as to be a borderline detention at its highest.

Thus the seriousness of any breaches does not favourexclusion of the evidence. [44.] The impact of the police conduct on the Defendant’s Charter-protected interests must be examined from the perspective of thedetainee. The degree of intrusiveness of the unconstitutional action of government agents ranges from impact which might be describedas fleeting, transient or technical to profoundly intrusive: Grant, at para. 76.

The more serious the incursion, the greater the case forexclusion in order to avoid the public perceiving individual Charter rights as merely second-class or unimportant constitutionalprotections, a state of affairs which would inevitably negatively affect the reputation of the administration of justice. [45.] With respect to the impact any on the Defendant’s Charter-protected interests of any putative breaches, the effect was far fromintrusive. He was not compelled by any alleged breach to incriminate himself. As a motorist, he was subject to be stopped at any time toprovide a valid licence.

If there were breaches, they were fleeting in the circumstance. He was also provided his rights to counselimmediately upon arrest was afforded a reasonable opportunity to speak with counsel in private at the station. This factor is at bestneutral on the exclusion scale; it cannot be said this factor favours exclusion. [46.] As for society’s expectation that a criminal allegation will generally be adjudicated on its merits, the court is obliged todetermine whether admission or exclusion of unconstitutionally obtained evidence would better serve the truth-seeking functions of thecriminal trial process.

The reliability of the unconstitutionally obtained evidence is an important factor in this line of inquiry: Grant atpara. 100-101. In this case, the evidence of the disqualification and bail conditions are real evidence that existed independent of thebreach and were not created at the behest of the state. The evidence that the Defendant was driving was never disputed.

The evidencesought to be excluded is highly reliable evidence essential to the prosecution case. [47.] In balancing all of the factors identified in Grant, I find that if there were breaches of the Defendant’s constitutional rights, theseriousness of those breaches was very modest. There was no significant impact upon the Charter-protected interests of the Applicant.The evidence seized is highly reliable and existed independently of the police conduct. [48.] There is no mathematical formula for balancing these factors as each is as important as the other.

Upon considering all of thecircumstances of this case and the Grant factors as a whole, assuming that breaches even occurred, I am not persuaded on a balance ofprobabilities that admitting the evidence sought to be excluded could bring the reputation of the administration into disrepute. 4.0: CONCLUSIONS [49.] In conclusion, I find that the Defendant’s sections 9 and 10 Charter rights were not engaged in this case prior to his arrest.

Ifthey were, he has failed to show that any incriminating evidence should probably be excluded. [50.] The case against the Defendant on both charges has been proven beyond a reasonable doubt. Verdicts of guilty will be entered

on each of count 1, driving while disqualified, and on count 2, breach of recognizance. __________________________ Richard H.K. Schwarzl, Justice of the Ontario Court of Justice