R. v. Young, 2011 ONCJ 904

Citation: R. v. Young , 2011 ONCJ 904 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. DONNA YOUNG ********** REASONS FOR JUDGMENT BEFORE THE HONOURABLE MR. JUSTICE G. J. BROPHY on March 31, 2011 at WALKERTON, Ontario ********** APPEARANCES : H. O’Connell Counsel for the Crown

H. Matson Counsel for D. Young REASONS FOR JUDGMENT BROPHY, J. (Orally): Firstly, I’ll identify that Donna Young has been charged with possession of methamphetamine, contrary to Section 4(1) of the Controlled Drugs and Substances Act . It’s alleged that on the 26 th of April 2010, she was stopped by two police officers, Officer Hummel and Officer Brant, with the O.P.P. in the South Bruce detachment. She was stopped somewhere near Mildmay, I think it was on Highway 4, I don’t have the exact location noted but that isn’t of consequence.

And she was pulled over because of a dispatch the officers had received or overheard about suspicious behaviour on Highway 9 near Greenock Township. Allegedly a car scoping out houses, somebody walking, and there had been issues in that area about property offences and these officers decided to act on that and look for the car that had been referenced in the dispatch; found it to be the same vehicle, same description, same plate number that Ms Young was driving and consequently, pulled her over.

All perfectly correct – and I’ll add at this point so I don’t overlook it - both Officer Hummel and Officer Brant, it seems to me, conducted themselves quite properly in this investigation and were doing their best to comply with their duties and to properly investigate crime. Having said that, Officer Hummel who was the lead person in terms of speaking to Ms Young, spoke to her and he developed some information. Firstly, she didn’t know what the issue was. She denied involvement in anything improper.

Secondly, she properly identified herself and proved to the officer’s satisfaction that she had the right to have the vehicle. The vehicle was in her name, no issues on that score. Next, there was some concerns the officers, both officers had with reference to the numbers of suitcases, bags and other things in and about her vehicle. Seemed suspicious to them but she satisfied them that these were her – this was her property she demonstrated that in one or two bags that these were things that would be associated with her and indeed, there were some phone records found.

Now, maybe Ms Young was just very good at what she was doing, I don’t know, but in any event she satisfied them. So the officers didn’t have any particular concerns about that. Having said all that, in the process of stopping the vehicle and reporting the stop and asking the com-centre to run the vehicle with names and so forth, it came back into the attention of the officers that there was an outstanding warrant in Winnipeg for Ms Young.

So then Officer Hummel particular thought he was obliged – and I suspect properly so – to arrest her on the basis of that warrant and then of course subsequently to inquire with Winnipeg what they were going to or not do about coming to get her and as it turned out of course they didn’t. She was released and the inference from that is that some information had been given to the O.P.P. detachment that they were not going to take any action on that warrant so subsequently she was released.

But the point of the story is simply this; she’s under arrest and in the back of Officer Hummel’s cruiser, in handcuffs and not able to escape and not presenting any physical risk to the officers particularly at that point. And I note as well that Ms Young is not a large person and she’s now at an age where she should not be engaging in fisticuffs in any event.

Having said all of that, Officer Brant, who is also involved in this, didn’t do the arrest but is overhearing some of the interaction between Officer Hummel and Ms Young, takes it upon himself, again in an ordinary sense, to investigate the motor vehicle and in the process of doing that he reaches into the console which is between the driver’s seat and the passenger’s seat, opens the console up, finds a pharmacy medicine bottle.

Small, clear plastic or perhaps coloured in some sense with a push lid on it and inside that pharmacy bottle is a clear plastic bag and inside that is some material that he identifies as crystal meth. So he brings that back to Officer Hummel.

Officer Hummel and he have presumably further discussion, they didn’t testify to this effect, but they then conduct further searches of the vehicle and in the course of all of this they discover some interesting things which perhaps raise their, further their suspicions about the property allegations but they didn’t act on that and that doesn’t form the basis for their search, but they found a meth pipe and they found some liquid in bottles that they thought was suspicious and they had somebody check that out, thinking that it might be the precursor to methamphetamine production perhaps.

In any event nothing came of that either so what they were left with was the meth that was in this pharmacy container. Now, the issue in this case is simply did the arrest – and the officers are clear about this, although Officer Brant expands a little bit on the other aspects of the case which meant they wouldn’t necessarily release Ms Young right away, Officer Hummel was making that decision, at least as he expressed it today. Officer Brant was perhaps a little more reluctant to make that decision but that was simply a matter of opinion between the two officers.

I’m not sure they discussed it between themselves, but, having said that people are entitled to different opinions. This is somewhat of an art as opposed to a science and they, the case rests upon the fact that the search of the vehicle where the meth was found was predicated upon the arrest and as a result of the arrest there was a search incident to arrest. So the question then becomes, is this a proper search? There is no warrant, we - that’s acknowledged. The question becomes whether or not the search was justified under the ordinary powers to search incident to arrest.

Obviously you can search an individual although there’s even restrictions on that in terms of the nature of the search that can be engaged in. And searches can be of motor vehicles and in other circumstances there can be searches of other properties incident to arrest. But in this particular incident we’re dealing with simply the search of this motor vehicle. So, as was expressed by Officer Brant in particular, there were reasons to search the vehicle because they were going to be arresting Ms Young. They were going to be taking her to the station.

The motor vehicle was going to be left there or towed – it wasn’t clear what they were going to do – but it was going to come into the control of somebody else and they had, as Officer Brant expressed it, some concerns about the safety of other individuals. What was in the motor vehicle that might prove hazardous and this was part of the reason why they were searching it. Neither officer said that this was a search to inventory the contents of the vehicle but I don’t think they had to say that to suggest that.

There was obviously a lot of stuff in the motor vehicle and I think the officers were being cautious, careful about all of that in the sense that they didn’t want to simply assume everything was a-okay particularly because of the overarching back-ground facts about this suspicious issues associated with what Ms Young had actually been up to. So, Officer Brant inspected the vehicle and found the meth. That is the factual backdrop to all of this. Mr.

O’Connell argues, firstly, that it has been proven that it was methamphetamine – I’ll get to that in a moment – it’s been proven that Ms Young was driving this motor vehicle and it’s been proven that the methamphetamine was beside her in that motor vehicle and there was no one else in the motor vehicle. Mr. O’Connell would then ask me to take from all of those facts and indicating of course that he would argue that the Charter application for the search should be dismissed. He would say this proves the case beyond a reasonable doubt. Mr. Matson advances I think three arguments.

One, proof of possession of the methamphetamine that is to say, did Ms Young have power and control over that bottle. Number two, he would argue that the Charter application has been made out in the sense that he’s established on the balance of probabilities that there was an improper search, that there was no warrant and that the officers exceeding what was reasonable under the circumstances for a search incident to arrest. And then he would argue under 24(2) in keeping with the Grant , Harris and other cases, that the evidence should be excluded. And then lastly, Mr.

Matson would argue that there hasn’t been the proper proof of service of the certificate of the analyst. And I’ll detail that in a moment. Let me deal firstly with the Charter application because that probably should come first. I’m not satisfied that on the balance of probabilities the application has been made out by the defence. I say so for the following reasons; it is what the officers did and they’re not supposed to be legal experts but they’re supposed to have an operating knowledge of the basic rules.

What they know is this, they know that if somebody’s properly arrested they can conduct a search incident to arrest. I think they also know that search incident to arrest has to be related to the nature of the arrest, the nature of the place where they are, the nature of what it is they want to search, and the nature of the offence that’s been charged. And it was carefully drawn out by Mr. Matson that the officers knew personal – their safety vis a vis Ms Young wasn’t in issue.

That she wasn’t about to escape, that they didn’t have good information about what the warrant was for, so they weren’t searching for particular evidence with the warrant and a breach associated with a warrant. But I think the officers also explained that in general terms, they’ve got a vehicle at the side of the road, it’s got a bunch of stuff in it and they want to make some kind of ordinary analysis of what is there so they have some idea of whether or not the public at large is going to be at risk and matters of that nature.

I think that is rational for them to do. I think maybe they should’ve thought about it a little harder. Maybe they should’ve articulated it a little better but the point is, is I think they were certain within the ballpark in terms of what they could do or not do on a search incident to arrest. I note this is a motor vehicle. This isn’t a house. This isn’t a camper. This isn’t a tent. This isn’t living quarters. This isn’t a whole bunch of things. It’s a vehicle under suspicious circumstances and I think it was rational for them to do what they did.

So, as a result I dismiss the Charter application and I don’t have to address the exclusion issue, vis a vis 24(2) in Grant . Moving to the question of possession of the methamphetamine; I’m satisfied that it is reasonable for me to infer that this methamphetamine was in the possession of the driver of that motor vehicle. It’s readily accessible to her. It’s obviously been packaged it’s not there incidentally. She’s got all this stuff in the vehicle. She’s headed to a storage locker after she goes to another place where she’s going to get her vehicle fixed.

It just seems to me it’s reasonable to find that there was a power and control over what was right next to her in this console. As we understand vehicles generally, the console next to the driver is generally something which they have control over. That’s where they keep their sunglasses. That’s where they keep their extra set of keys. That’s where they keep all kinds of things, music CD’s – whatever the case might be – and it seems to me rational to think that she had control over that. Now, dealing with the last question, that’s with reference to the proof of the certificate of analyst.

This is a fascinating bit of business because it just shows how things can come off the rail. Firstly, there’s no issue in terms of service on Mr. Matson of the certificate of the analyst. Mr. Matson indicates that he didn’t receive it until the 24 th when it was faxed to him and I was told he didn’t read it until a little bit later but March 24 th is not seven days so that doesn’t satisfy – the Canada Evidence Act is somewhat uncertain about these matters but there has to be the ability for reasonable notice of the documentation to come into the knowledge of Ms Young.

Ms Young hasn’t testified in these proceedings, in the trial proper, only on the initial oral voir dire, so she hasn’t said anything about what she knew or didn’t know about the certificate of analyst. Mr. O’Connell doesn’t argue that in giving the documentation to Mr. Matson is service. What Mr. O’Connell argues is that indeed there was service on Ms Young in October of 2010. Mr. O’Connell has presented me with three documents. Firstly, a Certificate of Analyst, number 1-0-0-4-2-2-7-T dated the 5 th of July, 2010, certifying that the material seized was methamphetamine.

He then also provides me with a notice pursuant to the Canada Evidence Act which states that certain documents will be produced at the trial by the crown as business records under the Canada Evidence Act and that without limiting the applicability of the foregoing, the crown intends to tender the certificate of analyst. And that is dated 30 October, 2010, city of Kitchener. There’s a signature of an individual who served it, that’s reported to be the official person serving it, and receipt of notice is acknowledged by a B. Kim Dwyer, I think is the name or Dyer perhaps. So that’s obviously not Donna Young.

In addition there’s an affidavit attached which proports to be the affidavit proving service of the certificate and the notice and it says the following: I Danny Braga a peace officer make oath and say that I did on the 30 th day of October 2010, serve Donna Young. It’s interesting to note and it’s important to note that that’s the same day that the notice of intent under the Canada Evidence Act is reported to have been served. I doubt if Danny Braga made two trips. It was presumably one trip.

But in any event in the affidavit it then goes on to say that on that day he served Donna Young; The witness named in the attached subpoena with a true copy of the subpoena in the manner indicated below namely by delivering it to him or her personally. And then the affidavit is signed and sworn. The signature appears to be the same as the signature of the official serving the notice under the Canada Evidence Act .

The problem with the affidavit is it says what it says. And it doesn’t say that he served the notice and it doesn’t say he served the certificate. It says, “I served the attached subpoena.” And there’s no subpoena involved in this. So, unfortunately, the affidavit doesn’t do anything to advance the argument made by Mr. O’Connell. Mr.

O’Connell, properly, argues that the court – properly argues, I’m not saying it’s a correct conclusion to come to – but he properly argues that could the court not then read from the, read into, I can call it that, the affidavit, the fact that the attached subpoena meant the attached documents, being the notice and the certificate. But that’s a dangerous place to go when you’re trying to read legal documents. It becomes incredibly problematic because people then are asking us to do all kinds of things that the paper doesn’t support. Simply put, the affidavit says the attached subpoena.

It doesn’t say anything other than that and I’ve got that problem and then I’ve got the contradiction between the receipt of the notice acknowledged by B. Kim Dyer and by that affidavit saying something is delivered personally to Donna Young. It leaves me concerned that the crown is not in a position today to be able to prove that there’s been service of the certificate or the business records notice under the Canada Evidence Act on Donna Young. Ms Young is presumed to be innocent. There has to be proof beyond a reasonable doubt. She hasn’t testified.

I don’t have evidence from her about what she had or didn’t have and simply put, I cannot on these papers be satisfied that service of the certificate was properly made on her. As a result that element of the case is not proven beyond a reasonable doubt and I have to dismiss the charge against Ms Young. Okay, that’s it. Thank you very much. ********** CERTIFICATION OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Lorelei Bonham , certify that this document is a true and accurate transcript of the recording of R. v.

Donna YOUNG , in the Ontario Court of Justice held at Walkerton , Ontario , taken from Recording Number, 0311-02-098-2011 , Courtroom No. 2, which has been certified in Form l.

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