R. v. Pitot-Flores, 2011 ONCJ 346

COURT FILE No.: Toronto DATE: 2011-06-17 Citation: R. v. Pitot-Flores , 2011 ONCJ 346 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JOSE PITOT-FLORES Before Justice Fergus ODonnell Heard on 2 November & 14 December, 2010 and 4 May, 2011 Reasons for Judgment released on 17 June, 2011 Mr. J. Rinaldi.......................................................................................................... for the Crown Mr. J. House.................................................................... for the defendant, Jose Pitot-Flores ODonnell, J.: Overview 1 .

Jose Pitot-Flores faces two charges of failure to comply with a recognizance. It is alleged that on 6 August, 2010 he breached both the curfew and non-association clauses of his bail order. The breaches, which came to light when Mr. Pitot-Flores was approached by the police while leaving an apartment building, were not contested. However, Mr. Pitot-Flores submits that he should be acquitted because the evidence required to convict him, namely his identity, was obtained as a result of Charter of Rights violations relating to his interaction with the police and should be excluded. 2 .

I heard from Constable Kevin Ward and Constable Lauren Hassard, who had the principal involvement with Mr. Pitot-Flores and from Mr. Pitot-Flores himself. The Evidence 3 . Constables Hassard and Ward were assigned to the Toronto Anti-Violence Intervention Strategy, commonly known as TAVIS, a street policing initiative. Constable Ward had just finished dealing with another person outside 170 Chalkfarm Avenue when he saw Mr. Pitot-Flores and two other men come out of the building.

Constable Ward said his attention was drawn when one of the three men turned as if to conceal something, which turned out to be a beer can, which the holder tried to discard into a nearby trash can. 4 . Constable Ward testified that he called the three men over. He wanted to investigate them under the Trespass to Property Act and the Liquor Licence Act . It was just before midnight and although there was artificial light, all three of the men were dressed alike and Constable Ward was unsure which of them had had the beer.

Constable Ward thought the three men pretended not to hear his call; they responded when he called to them a second time. Constable Hassard said that the three men were not free to ignore Constable Ward’s direction. 5 . Constable Ward said he first asked which of the three of them had had the beer and all denied it. They were asked which of them lived there and one of them said he did. As the discussion proceeded, one of the men said they had found the beer in the lobby and were taking it out to the garbage. Eventually, one of the men, not Mr. Pitot-Flores, admitted that the beer was his.

Constable Ward said he was sceptical about the answer, that from the earlier conversation all three men had lied to him and he was curious about why they were lying. 6 . Constable Ward and Constable Hassard asked the three men for identification. The two other men gave driver's licences to Constable Ward and he took down their details. Constable Ward said that each of those two men retrieved their own identification and he did not search them to retrieve it. Constable Ward said that he saw Constable Hassard’s interaction with Mr.

Pitot-Flores and she did not search him either in order to get his identification, which was a passport. One of the two men was a resident of 170 Chalkfarm. 7 . After about two or three minutes interaction with the three men, Constable Ward and Constable Hassard went to a police cruiser that had arrived on scene, with the intention of checking the identification of the three men. They left Mr. Pitot-Flores and his companions in the company of the two officers who had arrived in the cruiser. Neither Constable Ward nor Constable Hassard instructed those two officers to hold Mr. Pitot-Flores and his friends there.

Constable Ward took their driver’s licences with him

because he could then simply scan the card. He learned that one of the men was on a peace bond, but was not in breach, and the other was on a bail order for robbery, with a condition that he not associate with Mr. Pitot-Flores. He then asked Constable Hassard the name of the person whose passport she had and she said it was Mr. Pitot-Flores, thus demonstrating that the other man was in apparent breach of his recognizance. Mr. Pitot-Flores’s recognizance, with a similar non-association clause, was linked to the other man’s on the police computer.

Constable Ward then went over and arrested the other man and searched him. Mr. Pitot- Flores was also arrested and searched. Constable Ward said the entire time from initial contact to arrest was four minutes. 8 . The owner of the building had designated members of the Toronto Police Service as its agents for the purpose of enforcing the provisions of the Trespass to Property Act , including the power to bar people from the premises. Constable Ward testified that he stopped perhaps 1/10 th of one-percent of the people he met that night. In a typical night, he might stop between a dozen and twenty-five people.

His approach is informed by the daily briefing officers receive about recent violent crime in the area. 9 . Mr. Pitot-Flores testified that he was living at 170 Chalkfarm. He and his friends were going out around 11:30 p.m. One of his friends had a can of beer with him. The officers asked where they lived, what their names were and for their identification. He recalled the police asking his friend about drinking, which his friend denied and then admitted. The police then said they were going to verify if they lived at the building or not and proceeded to search them, pulling identification out of their wallets.

The officers took their identification to a police car and Mr. Pitot-Flores said he thought he had no choice but to stay. 10 . In cross-examination, Mr. Pitot-Flores admitted that he had in fact handed his identification over to the police rather than them retrieving it from his pockets themselves, but he insisted that the police had also searched him before his arrest, something that Constable Hassard had denied when it was put to her. Mr. Pitot-Flores’s affidavit in support of the Charter motion specifically asserts that the police officer removed his wallet from his pocket, which Mr.

Pitot-Flores conceded in cross-examination was not true. When challenged on this, Mr. Pitot-Flores said that everything happened so long ago and so quickly that he has trouble remembering. Mr. Pitot-Flores was insistent that he was searched by the police but could not recall which of the officers did that. It is noteworthy in relation to this inability to recall that one of the officers was a man and the other was a woman. This speaks volumes to the quality of Mr. Pitot-Flores’s recollection. 11 . Mr.

Pitot-Flores said that the whole interaction with the police took fifteen or twenty minutes, not the four or five minutes described by the police. Was There A Violation Of Mr. Pitot-Flores’s Charter Rights? 12 . I found the evidence of Constables Ward and Hassard to be consistent and believable. There was nothing about it that struck me as either contrived or orchestrated. I did not detect any tendency to exaggeration or rationalization in their evidence. In contrast, by the time Mr. Pitot-Flores had been cross-examined, I had very little confidence in his evidence.

This went beyond the obvious inconsistency of his sworn affidavit and his sworn viva voce evidence. It seemed clear to me that Mr. Pitot-Flores’s recollection of events that evening was at best unreliable and at least in some parts untrustworthy. His assertion that the police asked him where he was going when so fancily dressed, which the police denied saying, makes no sense when juxtaposed with the description of his actual clothing that the Crown extracted from Mr. Pitot-Flores on cross-examination.

Given the officers’ denials and his vagueness, I am not satisfied that he was searched by the police before his arrest. Given the recitation of the events that happened, I find Mr. Pitot-Flores’s estimate of having been held by the police for fifteen or twenty minutes to be fantastical. The police evidence of four minutes or so is much more consistent with the various steps involved in the process. 13 . The central question in this case is whether or not Mr. Pitot-Flores was “detained” by the police in the sense that word has under s. 9 of the Charter of Rights . In R. v.

Suberu 2009 SCC 33 , the Supreme Court of Canada made it clear that the Charter right to counsel is engaged as soon as a person is “detained”. Mr. Pitot-Flores was not given his rights to counsel at any time before his arrest. However, the Court also reminds us what it has said before, i.e. that not every police intervention in a citizen’s activities will constitute a “detention” under the Charter, even if that intervention might, in the broad vernacular of the English language be seen as detaining the person.

See particularly paragraphs 22-26 of Suberu . [22] While a detention is clearly indicated by the existence of physical restraint or a legal obligation to comply with a police demand, a detention can also be grounded when police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police.

As discussed more fully in Grant , this is an objective determination, made in light of the circumstances of an encounter as a whole. [23] However, this latter understanding of detention does not mean that every interaction with the police will amount to a detention for the purposes of the Charter , even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police.

This Court’s conclusion in Mann that there was an “investigative detention” does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes. Indeed, Iacobucci J., writing for the majority, explained as follows: “Detention” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter , every suspect they stop for purposes of identification, or even interview .

The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. … [24] As explained in Grant , the meaning of “detention” can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society’s interest in effective policing and the detainee’s interest in robust Charter rights.

To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter .

[25] For convenience, we repeat the

summary set out in Grant, at para. 44: 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. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.

To determinewhether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of theliberty of choice, the court may consider, inter alia, the following factors: The circumstances giving rise to the encounter as they 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 focused investigation.

The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; thepresence of others; and the duration of the encounter. The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level ofsophistication. 14. If there is one conclusion that is crystal-clear from the Supreme Court of Canada decision in Suberu, it is that determinations ofwhether or not a person was “detained” in the Charter sense of the word will be extremely fact-dependent.

The myriad ways inwhich police interactions with the public can originate and develop, including the verbal and non-verbal behaviour of theparticipants mean that no previous case is likely to be wholly determinative of the outcome of any subsequent case. Obviously, asJustice Doherty adverts to in Brown v. Durham (Regional Municipality) Police Board (ON CA), [1998] O.J.No. 5274, there is a tension between society’s desire to be safe and our need to be free.

The imagery of the police arbitrarilydemanding “Papieren, bitte” or “Papers, please” of every train passenger or every passer-by, as evoked by so many World War IImovies, is obviously anathema to our values. Much of the philosophy espoused by Mr. House in his able argument is undeniablysound and any suggestion that any defence challenging of police tactics or motives is out-of-bounds is unsupportable—to thecontrary, lawyers holding the state accountable for the exercise of police power is one of the cornerstones of democracy.

Be thatas it may, however, this case is a single criminal prosecution on a specific set of facts supported by specific evidence of dubiousquality; it is not a royal commission into the tactics of TAVIS generally.15. Detention can be either physical or psychological. On the record before me, I am not satisfied that Mr. Pitot-Flores hasdemonstrated that he was physically detained by the police. The onus is on Mr. Pitot-Flores to prove any such detention on abalance of probabilities and that standard is clearly not met.16. The absence of physical restraint, of course, is not itself determinative.

I do not find these circumstances to be comparable to thosedescribed by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, which included the police directing Mr. Grant what to dowith his hands, encircling him in a “tactical, adversarial position”, and engaging in focused questioning rising well beyond generalneighbourhood policing. I do not think that there is anything about Mr. Pitot-Flores, notwithstanding his relative youth andarguable minority status, that makes him more susceptible to psychological detention than the average member of the public.

There was nothing in his evidence to support such a claim. Based on his evidence at trial, to the contrary, it seems that Mr. Pitot-Flores is not particularly attentive at all to the overbearing power of the state or that he was intimidated by it. He admitted to beingwilfully non-compliant with the non-communication requirement of his bail and was at best disinterested in whether or not he wascompliant with the curfew.17. Considering the evidence tendered before me, including the number of officers on scene, their placement, their words andbehaviour to Mr.

Pitot-Flores and his friends, the public location of the encounter and Mr. Pitot-Flores’s testimony, I am notsatisfied that the “police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choosewhether or not to cooperate with the police.”(see Suberu at para. 22). The opinion of Constable Hassard that she would not havelet them leave before checking their identification is something that was never communicated to Mr. Pitot-Flores that evening andis not alone determinative of whether there was a “detention” in the sense of the Charter.

Given how the Supreme Court ofCanada casts the definition of “detention” in Suberu and Grant, to recognize that not every form of preliminary interaction with thepolice will constitute detention, I am not satisfied, on this evidence in this case, that detention has been made out by Mr. Pitot-Flores. Given the serious problems that I have with Mr. Pitot-Flores’s evidence, I cannot even be confident in his assertion atparagraph 5 of his affidavit that he felt he had no choice but to comply. There was, in the words of Grant, no “significant physicalor psychological restraint” here. Mr.

Pitot-Flores has failed to show that he “was effectively deprived of his…liberty of choice”.(Suberu, at para 28). It is important to remember the words from paragraph 38 of Grant as follows:

Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific groundsto connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of anyencounter that they have no obligation to speak to them and are entitled to legal counsel.

This is a long-established principle, with roots dating back at least to the decision of the Court of Appeal for Ontario in R. v. Grafe in1987. 18. Mr. House asks me to equate the facts of this case to the decision of Justice Cole in R. v. S.V. 2005 ONCJ 410 , [2005]O.J. No. 4098, in which Cole, J. found there to have been detention.

Suffice to say that the distinctions between that case and thiscase, including the age of the “detainees”, the behaviour of the police and the absence there of any situation that justifiablyrequired “sorting out” on the part of the police, make that a markedly different scenario than the facts before me.19. This was a case in which the police were engaged in their general duty of maintaining order, including the delegated authority theyenjoyed as agents of the occupier of the property under the Trespass to Property Act.

While there, Constable Ward observed aviolation of the Liquor Licence Act and was lied to by at least one of the three men involved. There might have been a simpleexplanation for that lie; there might have been a more sinister explanation. It was reasonable for the police to inquire further andto establish the entitlement of the three men to be on the premises, including whether any of them had been barred from theproperty. The simple fact that one of them lived thee was not determinative of whether or not all three were entitled to be there. This is fairly comparable to what happened in Suberu, i.e.

Constables Ward and Hassard “sorting out the situation”, a stage atwhich the Supreme Court of Canada says it would be unreasonable to require the giving of the right to counsel.20. Mr. House suggests that the police were operating on a pretext here, for example that any reliance on their authority under theTrespass to Property Act was mere subterfuge. On the evidence before me in this case, I do not believe that such acharacterization has been made out. Constable Ward testified that he spoke to only a small fraction of a percent of the people hesaw that day.

That testimony, which I accept, suggests to me that the police were being somewhat selective in their actions thatnight, by which I mean that they were not randomly targeting passers-by but were looking for behaviour that was in some way outof the ordinary or suggestive of illegality. The Liquor Licence Act violation was not a fabrication on Constable Ward’s part; hehad a legitimate basis to pursue inquiries related to that violation and sort out that scenario. His parallel interest in fulfilling hisrole as an agent of the property owner did not constitute an improper expansion of his role.

In the first place, the occupier’s agentrole is a perfectly valid undertaking on the part of the police. Second, it is clear that when a police officer has a legitimatestatutory basis to investigate, and even to detain, the existence of a secondary motive does not render that stop illegitimate, so longas the secondary motive is not itself illegitimate or inconsistent with the Charter: see the decision of Doherty, J.A. in Brown v.Durham (Regional Municipality) Police Board (ON CA), [1998] O.J. No. 5274, at paragraphs 37-38.

The co-existence of these two valid purposes makes this a materially different scenario than that dealt with by the Court of Appeal forOntario in R. v. Harris 2007 ONCA 574 , [2007] O.J. No. 3185.[1]21. In the present case, the possession by one of the three men of the beer outside the building constituted an offence. The evasivenessthat the police met when they inquired about the possessor of the beer justifiably raised their suspicions about all three men. Indeed, a straight answer about the beer would have put the three men, including Mr.

Pitot-Flores, into the best position tovindicate any interest they had in being left alone. I cannot speculate about what would have happened to the three men if one ofthem had simply and honestly admitted ownership of the beer up front. The simple fact is that their universal initial denial ofownership created a situation in which a reasonable police officer would want, in the words of Suberu, to sort things out.22. The police had a legitimate interest under the Trespass to Property Act in verifying Mr. Pitot-Flores’s right to be on the premises.

Their interest could only be heightened by the somewhat evasive behaviour of Mr. Pitot-Flores and his companions. Theidentification he proffered, in the form of his passport and SIN card, did not confirm his address. The checking of Mr. Pitot-Flores’s name against police databases was one legitimate means of verifying his identity and his address and that he was notbarred from the property.[2] Insofar as I have found that Mr.

Pitot-Flores was not detained, the right to silence and to counsel thatwould be engaged if he were detained, which were factors determining the outcome in Harris, do not come into play here.23. Accordingly, what we are left with is Mr. Pitot-Flores, a non-detained person, being asked questions by the police. Asking if hewould provide his actual identification or asking his name were the functional equivalents in this scenario and asking for thedocument makes more practical sense both insofar as it avoids any issues about spelling, etc. and is more reliable.

In the contextof a non-detained person in the circumstances before me, the obtaining of Mr. Pitot-Flores’s identification is not a “search”; itlacks the element of compulsion that is inherent in the s. 8 language of “search or seizure”.[3] The Supreme Court of Canada inGrant makes it clear that when a person is detained by the state, there is a tremendous imbalance of power and it is that imbalanceof power that triggers protective rights, such as the right to counsel, as a mechanism to protect a detained person’s informed right tosilence.

There is no equivalent imbalance of power or vulnerability for a person who is not detained.24. Accordingly, I find that on the facts of this case that there was no violation of Mr. Pitot-Flores’s rights relating to arbitrarydetention, unreasonable search or right to counsel. 25. Assuming that I am wrong in those conclusions, the question would arise as to whether or not the evidence evoked from the policequestioning of Mr. Pitot-Flores should be excluded. Here again, Mr. Pitot-Flores bears the burden of demonstrating the evidenceshould be excluded.

I will deal with the issue of s. 24(2) of the Charter briefly. 26. In my view, the three-part test for exclusion or admission set out by the Supreme Court of Canada in Grant would apply to thiscase in the following way: 1. With respect to the seriousness of the Charter violation, this strikes me as being very far from flagrant or reckless behaviour on thepart of Constable Ward and Constable Hassard.

Given their general obligation to ensure the safety of the neighbourhood for all itsoccupants and in particular the legitimate Liquor Licence Act and Trespass to Property Act foundations they had, any overstepping oftheir authority would be well to the low end of the spectrum. 2. With respect to the impact on Mr. Pitot-Flores’s Charter-protected interests, there may be a somewhat stronger argument sincefrom one perspective Mr. Pitot-Flores’s identification of himself can be seen as a form of statement, thereby violating his right to silenceand right against self-incrimination.

On the other hand, while a person’s statement of identity can obviously engage privacy interests, itis also a statement at the very low end of the privacy spectrum. The passport and SIN card he had, which were the actual means used byConstable Hassard to identify him, were items of real evidence. 3. In terms of society’s interest in an adjudication on the merits, it is obvious that the evidence of Mr. Pitot-Flores’s identity isessential to the Crown’s case. It is also reliable evidence in the form of government-issued forms of identification. There is a strongsocietal interest in the enforcement of court orders.

While, in terms of penalty, such offences do not typically rank high on the scale,there is a strong public interest in demonstrating that court orders have meaning and consequences. That factor must be kept in thebalance along with the public interest in law-enforcement that reflects Charter values.

27 . When I combine all those factors and in particular when I consider that, if the police crossed a constitutional line, they did so by a very small measure, I am not persuaded that Mr. Pitot-Flores has demonstrated on the balance of probabilities that the evidence would be excludable if there had been a violation of his Charter rights. Conclusion 28 . Accordingly, the evidence is admissible and the two charges are proved beyond a reasonable doubt. I find Mr. Pitot-Flores guilty as charged. Released: 17 June, 2011 Signed: “Justice Fergus ODonnell”