2011 QCCQ 3025, 2011 QCCQ 3025

R. c. Joyal 2011 QCCQ 3025 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” No.: 500-01-015721-084 DATE: April 5, 2011 ______________________________________________________________________ PRESIDING: THE HONOURABLE SYLVIE DURAND, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

HUGO JOYAL Accused – Petitioner ______________________________________________________________________ JUDGMENT ON MOTION TO EXCLUDE EVIDENCE ______________________________________________________________________ Introduction [ 1 ] The accused stands trial on charges of having, on or around November 27, 2008, had cocaine, cannabis, and hashish in his possession for the purpose of trafficking. [ 2 ] At the outset of the trial, the defence presented a motion to exclude evidence pursuant to sections 8, 9, 10, and 24(2) of the Charter . [ 3 ] The defence alleges that the police officers abused their powers of arrest and search when they stopped the accused even though they had no reason to believe that a criminal act had been committed.

It also alleges that the accused's right to protection against arbitrary detention was breached. Consequently, the defence seeks the exclusion of evidence obtained in breach of the accused's rights in accordance with section 24(2) of the Charter . I- THE FACTS [ 4 ] On Thursday, November 27, 2008, Sergeants Yannick Girard and Yves Landry were patrolling the area around the Canadian Tire store on Wellington Street in Montreal. Their vehicle was marked.

At approximately 5:30 p.m., they noticed an individual about to enter or exit a vehicle using the front door on the driver's side. [ 5 ] The vehicle was in the Canadian Tire parking lot. The patrol car was on the street adjacent to the parking lot. [ 6 ] Girard and Landry noticed that the accused moved away from the vehicle when he saw the patrol car. [ 7 ] The police officers found the accused’s behaviour strange and decided to question him to [ translation ] “clarify the situation”.

They suspected him of car theft or theft from a car. [ 8 ] The two sergeants approached him and asked what he was doing in the area. Mr. Joyal initially said that he was going shopping. He later said that he had a headache and needed to take a walk. [ 9 ] The sergeants asked the accused to identify himself. He gave his name and address. He also said that it was his car and that he was the owner.

The sergeants then asked him for his identification and the vehicle's registration. [ 10 ] The accused said that his identification was in a hip sack on the passenger seat of his car. [ 11 ] According to Girard and Landry, the accused gave them permission to go get his identification (the accused denies this). [ 12 ] Meanwhile, a backup patrol car arrived. Constables Thibodeau and Desmarais arrived on site.

[ 13 ] Girard and Thibodeau went to the accused's car to get his identification. [ 14 ] Landry stayed with the accused, accompanied by Constable Desmarais. [ 15 ] Landry verified the petitioner’s identity using the computer in the patrol car and confirmed that the vehicle indeed belonged to him. [ 16 ] Meanwhile, Thibodeau opened the door of Joyal's car and searched his wallet, which was in the hip sack on the passenger seat.

She found a transparent bag containing cocaine. [ 17 ] Joyal was then placed under arrest for simple possession of cocaine. [ 18 ] The accused was pat-down searched, and other narcotics were found. The officers again placed him under arrest, this time for possession for the purpose of trafficking. [ 19 ] The accused's car was searched, and a significant quantity of cocaine, marijuana, and hashish were found, along with two cellular phones and $1,445.

The drugs had been separated into several small packets. [ 20 ] When asked whether the accused was free to move, Girard told the Court that [ translation ] “perhaps if he had wanted to go [to his car], I would have stopped him”. Landry, for his part, said [ translation ] “he is a suspect and must stay put. Our investigation was not finished”. Petitioner's evidence [ 21 ] While running errands, Joyal began to feel ill.

He decided to park his car in the Canadian Tire parking lot and go for a walk. [ 22 ] He was about 30 feet away from his car when he noticed the patrol car, which then backed up all the way to him. [ 23 ] The officers asked him several questions. They never informed him of the purpose of their questions or why they had stopped him. [ 24 ] The accused explained to the officers that he was taking a walk. [ 25 ] The officers asked him to identify himself, which he did by stating his name and address.

He also told them that it was his car. [ 26 ] At one point the petitioner thought that one of the sergeants was talking to him, so he moved over slightly to see him. The other sergeant then told him to stay put. The accused then felt that he was no longer free to move. [ 27 ] The accused saw Girard looking in his car using a flashlight to light the interior. [ 28 ] Thibodeau then got out of the patrol car.

Girard asked her to get Joyal's identification from his car. [ 29 ] The accused explained that he might have mentioned that his identification was in one of the pockets of his bag, but at no time did he give the officers permission to go get it. Nor did he ever give Thibodeau permission to enter his vehicle. [ 30 ] His keys were in his car. [ 31 ] On cross-examination, the accused explained that the reason he did not have his wallet on him was that he simply needed some air, near his car. He left his money, keys, and everything else in his vehicle because he did not plan to go far.

Arguments of the parties [ 32 ] The prosecution contends that the accused was “delayed” within the meaning of that term as used by the Supreme Court of Canada in Suberu . [1] It also contends that there is nothing prohibiting police officers from asking questions and that the answers given by the accused, combined with his highly [ translation ] “suspicious” behaviour, legitimized their decision to investigate and ask him where his identification was.

Since the accused gave the officers permission to go get his identification, the search was lawful. [ 33 ] The petitioner, for his part, contends that contrary to the police officers’ assertions, he never authorized them to go get his papers from his car. He contends that the investigation should have ended once the officers obtained confirmation that it was indeed his car. The petitioner adds that he was detained since he did not feel free to move. From this point on, the detention became arbitrary and the search was unlawful.

Issues [ 34 ] At issue are the following: (1) was the petitioner detained when his bag was searched; (2) if so, did this constitute arbitrary detention within the meaning of

section 9 of the Charter; and (3) was the evidence obtained under conditions that infringe

section 8 of the Charter ? Question 1: was the petitioner detained when his bag was searched ?

[ 35 ] The interaction began when the officers intercepted the accused to [ translation ] “clarify the situation”. They suspected him of theft from or of a vehicle and therefore questioned him as to why he was in the area. [ 36 ] Preliminary questioning of this type is a legitimate exercise of police powers. “A reasonable person would not have concluded he or she was being deprived of the right to choose how to act ...” [2] [ 37 ] The officers asked the petitioner to identify himself. He gave his name and address and specified that he was the owner of the car.

One of the officers used the computer in the patrol car to verify whether the name and address given by the accused matched those registered to the car. [ 38 ] Up to this point, I agree that the investigation was a legitimate exercise of police powers. “

Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime”. [3] [ 39 ] The situation changed, however, when the officers asked the accused to provide identification. [ 40 ] First of all, two other officers arrived as backup. Further, according to the officers’ own testimonies, corroborated by that of the petitioner, he no longer had the option or the freedom to cooperate. When asked whether the accused was free to move, both sergeants answered that he was not.

The petitioner also said that he did not feel free to move. [ 41 ] What began as a simple contact for the purpose of verifying their suspicions turned into a situation in which the accused no longer had freedom of movement. A person is detained if he or she “submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist”. [4] [ 42 ] The analysis of the context leads me to conclude that Joyal was detained as of the moment he was asked to provide his identification, which was in his car.

Question 2: did this constitute arbitrary detention within the meaning of

section 9 of the Charter ? [ 43 ] In this case, although the officers had reasonable suspicions as to the possibility that the accused had stolen or intended to steal the car or its contents, once he provided his name and address and his ownership of the vehicle was confirmed, the officers had no further right to detain him. [ 44 ] “It is necessary for a court to proceed step by step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry”. [5] [ 45 ] There was no longer any justification for the detention since the accused had answered in a satisfactory manner. [ 46 ] There was no longer any reasonable suspicion.

As of this point, the detention became unlawful and therefore arbitrary. “ Mann , in confirming that a brief investigative detention based on ‘reasonable suspicion’ was lawful, implicitly held that a detention in the absence of at least reasonable suspicion is unlawful and therefore arbitrary within s. 9”. [6] [ 47 ] In Mann , [7] the Supreme Court specified that the totality of the circumstances must present a clear nexus between the individual and a recent or on-going criminal offence, to the extent that the suspicion is reasonable in this regard. [ 48 ] Here, there was neither a clear nexus between Joyal and an on-going offence, nor any reasonable suspicion in this regard.

Once they confirmed that the accused’s identity corresponded to the information obtained, the officers should have put an end to their investigation. Question 3: was the evidence obtained under conditions that infringe

section 8 of the Charter ? [ 49 ] In principle, preventive pat-down searches are permissible in situations of investigative detention for safety reasons only: 40 The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk … [8] [ 50 ] In the present matter, a bag located in the petitioner’s car was searched.

It was thus in no way a search incidental to an investigative detention. [ 51 ] It is clear that the search of the accused’s bag, which was on the passenger seat of his car, was conducted without a warrant. There was no safety concern. The officers simply wanted the accused’s identification to confirm his identity. [ 52 ] As the search of the vehicle was conducted without a warrant, it is presumed to have been unreasonable.

It is up to the prosecution to demonstrate, on the balance of probabilities, that it was not. [9] [ 53 ] As noted above, once the verification in the police computer confirmed the identity that the accused had provided orally, there was no longer any reason to believe that he had stolen the car or was attempting to steal it. [ 54 ] That said, there was nothing preventing the officers from asking the accused for his identification to obtain further

confirmation. They should, however, have allowed him to go get it from his car himself and told him that he was free to go. [ 55 ] Consent is at issue here because what happened next occurred in the midst of some confusion. When asked where his identification was, the accused answered that it was in his car. One of the officers claims to have understood that the accused was giving them permission to go get it.

In any event, one of the constables opened the door, searched the accused’s wallet, which was in his bag, and found a packet containing cocaine. [ 56 ] The parties’ versions of the facts are contradictory in regard to whether or not the accused gave such permission. But from the outset, I must say that I find it hard to believe that an individual who knows that he has drugs in his possession, located specifically in the same place as his identification, would consent to such a search. [ 57 ] Consequently, I do not accept the officers’ version of the facts when they claim that they had the accused’s permission.

In my opinion, they at best “interpreted” his words as consent. [ 58 ] In any event, had I come to the conclusion that the accused had consented, I would have found that his consent was not informed. [10] [ 59 ] The officers did not have a warrant or consent to search the accused’s bag. Nor was this a situation where the plain view doctrine would apply. This search was conducted in the context of an arbitrary detention. [ 60 ] This search and those that followed it, i.e. the search of the accused’s person and that of his car, were all situations in which

section 8 of the Charter was breached. [ 61 ] The search of the accused’s bag led to his arrest and the search of his person. As the initial search was unlawful, the subsequent search was as well.

The same is true for the seizure from the petitioner’s car. [ translation ] “It is a well established fact that the subsequent discovery of evidence cannot serve to support a finding that there were reasonable grounds at the time of the police action”. [11] [ 62 ] In Reddy , a case similar to the present matter, the British Columbia Court of Appeal held that an officer, who had no authority to search either the accused or his belongings at the time the officer first approached him, “did not gain that authority by virtue of the unlawful investigation that followed”. [12] [ 63 ] I conclude that the search of the accused’s bag, and then that of his person, and finally that of his car, were unreasonable and infringed the rights guaranteed by

section 8 of the Charter . [ 64 ] The issue that remains to be determined is whether the evidence so obtained should be excluded pursuant to section 24(2) of the Charter .

II- THE FRAMEWORK [ 65 ] A court seized of a motion to exclude evidence pursuant to section 24(2) of the Charter must evaluate and weigh the effect that the use of the evidence would have on society’s confidence in the justice system by considering the following three factors: - (1) the s eriousness of the Charter -infringing state conduct ; - (2) the i mpact on the Charter -protected interests of the accused ; and - (3) s ociety's interest in an adjudication on the merits .

Seriousness of the Charter -infringing state conduct [ 66 ] As the Supreme Court noted in Grant : [75] … Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. [13] [ 67 ] The events at issue in the present matter took place in 2008, i.e. well after the Supreme Court rendered its decision in Mann .

The officers knew or ought to have known that searches incidental to investigative detention are limited to situations in which the officer believes that his or her safety, or the safety of others, is at risk.

The police must be taken to be aware of the Supreme Court's judgments delimiting police powers. [14] [ 68 ] In this case, the officers opened a car door, took out a bag, and searched it. [ 69 ] I find that the officers’ misconduct, although not of the most egregious type, constituted a serious infringement of the accused’s rights guaranteed by the Charter . [ 70 ] Thus, the first factor weighs in favour of exclusion of the evidence.

I mpact on the Charter -protected interests of the accused [ 71 ] The principle: [76] This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.

The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. [15] [ 72 ] This factor looks at the seriousness of the infringement from the perspective of the accused. [16] [ 73 ] Although the search took place in a car, and the Court can thus rely on similar cases with respect to the right to privacy, there are nevertheless some distinctions to be made. [ 74 ] The discovery of the narcotics was a result of the search of the accused’s bag, which was in his car.

Had his bag been a few metres away from him in the grass, on a bench, or near his car, the reasoning would be the same in the sense that Joyal was initially stopped as a pedestrian suspected of car theft. [ 75 ] “[T]he intrusion on liberty and privacy represented by the detention [of a motorist] is less severe than it would be in the case of a pedestrian”. [17] [ 76 ] In other words, Joyal, who was stopped as a pedestrian, had higher expectations of privacy and freedom than would a motorist. [ 77 ] In this context, it seems to me that the detention and search had a serious impact on Joyal’s rights to freedom and privacy. [ 78 ] In view of the absence of any reasonable justification for the detention and search given that the accused, after having provided his identity, had every expectation of being left alone, I find that the infringement of his rights was significant. [ 79 ] Thus, the second factor weighs in favour of exclusion of the evidence.

S ociety's interest in an adjudication on the merits [ 80 ] The evidence of the drugs obtained in breach of sections 8 and 9 of the Charter was reliable. It was critical evidence, virtually conclusive of a finding of the accused’s guilt. Further, the offence is serious.

Having regard to the search for truth, the evidence cannot be said to operate unfairly. [ 81 ] The “exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute”. [18] [ 82 ] Thus, the third factor weighs in favour of admitting the evidence.

Balancing the factors [ 83 ] This exercise, which consists of balancing the relevant factors, is qualitative rather than quantitative, and: [36] … The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true.

In all cases, it is the long-term repute of the administration of justice that must be assessed. [19] [ 84 ] In this case, the first and second factors weigh in favour of exclusion of the evidence. [ 85 ] The officers’ detention of the petitioner was arbitrary. This arbitrary detention led them to conduct an unlawful search of a bag containing the accused’s belongings.

This constitutes an unacceptable infringement of the petitioner’s rights to privacy and freedom. [ 86 ] While the officers had the right, at the beginning of their intervention, to investigate what appeared to them to be strange behaviour, they had the duty to end their investigation once it lost its justification. [ 87 ] The officers suspected the petitioner of car theft or theft from a car.

Once his ownership of the vehicle was confirmed, the officers were no longer addressing an alleged thief but an ordinary citizen who was in a store parking lot at 5:30 p.m. on a Thursday. [ 88 ] The officers’ claim that they had the petitioner’s permission to search his belongings is more akin to bad faith than a genuine concern for compliance with the requirements of the Charter . [ 89 ] There was no urgency or apparent danger, and no reason why the officers could not ask the petitioner to go get his identification himself. [ 90 ] That said, this was not the most egregious infringement, and the search did result in the discovery of a significant quantity of drugs; nevertheless:

41 … The fact that a Charter breach is less heinous than the offence charged does not advance the inquiry mandated by s. 24(2). We expect police to adhere to higher standards than alleged criminals. [20] [ 91 ] As the BCCA noted in Reddy : [108] ... Unlike Grant , there was no "legal uncertainty" when Mr. Reddy was directed out of a vehicle and his jacket searched only because he was subject to the conditions of a probation order. To the contrary, by reason of Mann , the law relating to investigative detentions was clear, and no reason has been offered that would excuse non-compliance with that law in this case.

It is this failure to act in accordance with the limits set by the highest court in the land that tips the s. 24(2) scales towards exclusion.

As in Harrison , "the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards. [21] III- CONCLUSION [ 92 ] The detention became arbitrary and unlawful because the officers disregarded the requirements of the Charter . [ 93 ] The circumstances surrounding the gathering of the evidence are likely to bring the administration of justice into disrepute. [ 94 ] The Court is of the opinion that it must dissociate itself from the officers’ lack of respect for the applicable legal rules. [ 95 ] Consequently, the evidence is excluded.

FOR THESE REASONS, THE COURT: ORDERS the exclusion of all evidence obtained in breach of the petitioner’s rights in accordance with section 24(2) of the Canadian Charter of Rights and Freedoms . __________________________________ SYLVIE DURAND, J.C.Q. Mtre Mario Dufresne Counsel for the prosecution Mtre André Lapointe Counsel for the accused Date of hearing: October 22, 2010