r v. RAJEEVAN, 2011 QCCQ 547

R. c. Velauthan 2011 QCCQ 547 JL1755 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL “Criminal and Penal Division” No.: 500-01-026191-095 DATE: January 28, 2011 ______________________________________________________________________ PRESIDING: THE HONOURABLE DENIS LAVERGNE, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

RAJEEVAN VELAUTHAN Accused ______________________________________________________________________ JUDGMENT ON MOTION TO EXCLUDE EVIDENCE (SECTIONS 8, 10 AND 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS) ______________________________________________________________________ [ 1 ] The accused is answering to four charges related to the possession of credit cards knowing that they have been obtained, made or altered by the commission in Canada of an offence and possession of any plate, die, machinery, instrument or other writing that is adapted and intended to be used to commit forgery ( paragraphs 342(1) (

c) and 369 (

b) of the Criminal Code ). [ 2 ] It should be noted that paragraph 369 (

b) has since been replaced by the Act to amend the Criminal Code (identity theft and related misconduct ). [1] [ 3 ] These charges resulted from evidence found in the wallet of the accused searched by police after he was arrested for shoplifting at a branch of the Sears department store chain. [ 4 ] The accused alleges that, under the circumstances, such a search was unlawful and unreasonable, in violation of

section 8 of the Canadian Charter of Rights and Freedoms . [ 5 ] Reviewing the timing of the events at the scene subsequent to his arrest for shoplifting, the accused also argues that, after a certain point, his detention was unlawful and arbitrary and thus in violation of his rights under

section 10 of the Charter . [ 6 ] As remedy, he invokes subsection 24(2) of the Charter and seeks the exclusion of the evidence obtained through the search of his wallet. I- ISSUES - In the circumstances, did the search of the wallet constitute an infringement of the right guaranteed by

section 8 of the Canadian Charter of Rights and Freedoms ? - Did the nature of the police officer’s investigation change after the arrest for shoplifting, and if so, did the police officer violate

section 10 of the Canadian Charter of Rights and Freedoms by failing to give the caution and to inform the accused of the rights guaranteed by its provisions? - If the answers to either of these questions are affirmative, should the evidence found in the accused’s wallet be excluded on the ground that its use would bring the administration of justice into disrepute? II- SALIENT AND RELEVANT FACTS [ 7 ] On January 28, 2009, the accused and another individual were arrested by security personnel for shoplifting at a Sears department store. [ 8 ] Clothing of a value not exceeding $1,000 was found in a bag.

[ 9 ] The two individuals identified themselves verbally at the request of the security personnel, who then contacted the police. [ 10 ] By consent of the parties, the transcript of the testimony of officer Nicolas Govatsos at the preliminary inquiry held on March 30, 2010, was entered in the file.

According to his testimony, it appears that the security personnel were not sure of the accuracy of the identification given by the two individuals. [ 11 ] Whatever the case may be, the police officer arrested the two individuals and informed them of their constitutional rights under the circumstances. [ 12 ] Then, and more specifically, the accused identified himself again to the police officer, who states that he did not understand the name.

He therefore decided to conduct a pat-down search of the accused. [ 13 ] He does not remember whether, at the time, he asked the accused for an identity document to confirm his verbal identification.

He states, however, that he asked questions and observed that the accused was not very cooperative, although he does not know if he did not understand what was said to him or if he just did not want to talk. [ 14 ] He explained the pat-down search by the fact that he wanted to check whether the accused had on his person either other stolen objects or identity documents. [ 15 ] Through the pat-down search, he found the wallet, which he placed on a table. After the pat-down of the accused, the officer checked the contents of the wallet.

He admits that he did not ask the accused to show him an identity document or to remove one from the wallet himself. [ 16 ] Asked why he did not do so, the officer replied as follows: A. Because I don't want him to touch the wallet until I search for the ID card. [2] [ 17 ] The following exchange then took place: Q. Can you explain your reasoning there? A.

Well the reasoning being is that every time we ask for, usually, most of the time when we go the Sears, we ask for, they give us an ID that usually is not theirs and that is not the first time that we have gone fake ID's, and we have actually summoned them to court and it is not the individual himself. So I rather proceeded to find the identification myself knowing that I identify the person as being the person who is being detained. Q. So in other words, you were concerned that he might give you a false ID. A. Yes. Q. And that would be if he had given you is ID card himself? A. Yes. Q.

Actually, do you ask him to give you ID? A. I don't remember asking for any ID.” [3] (Reproduced in full.) [ 18 ] The police officer explained that that branch of the Sears department store chain is known as a place where people arrested for theft or fraud sometimes identify themselves using false identity documents. [ 19 ] In the wallet, the police officer found three credit cards that proved to be forged and two white plastic cards, likely one of the objects described in paragraph 369 (

b) of the Criminal Code .

III- THE MOTION [ 20 ] The accused argues that the facts did not logically and reasonably justify officer Govatsos in thinking that he had given him a false identity and even less that he was obstructing a peace officer in the performance of his duties. [ 21 ] Since the accused was arrested for shoplifting, there is no logical link between the facts surrounding that offence and the search of the wallet. [ 22 ] According to the accused, it is thus clear that the police officer’s suspicion concerning the accuracy of his identity was the only real reason for searching and checking the contents of his wallet. [ 23 ] The police officer’s suspicion was based on his mistrust of the identities disclosed by persons arrested in that store in similar circumstances that have proved to be false.

For this reason, the Court repeats here an excerpt of the words previously quoted: … So I rather proceeded to find the identification myself knowing that I identify the person has being the person who is being detained. [4] …

[ 24 ] In the view of the accused in this case, that suspicion was unreasonable and unjustified. [ 25 ] Alternatively, the accused argues that, if the police officer had reasonable grounds for believing that the accused was giving or would give a false identity, then he should have restated the caution and the rights guaranteed by

section 10 of the Canadian Charter of Rights and Freedoms since the nature of the investigation had changed from shoplifting into one of possible false identity and consequently a possible offence of obstructing a peace officer in the performance of his duties. Clearly the same observation applies if the officer had reason to believe that the accused was in possession of fraudulent identity papers. [ 26 ] Since the police officer did not comply with this formality, the accused claims that there was a violation of

section 10 of the Charte r. [ 27 ] The accused raises a final argument founded on police power during investigative detention. [ 28 ] He argues that, after the arrest for shoplifting, the object of the police officer’s investigation changed to the possible offences of obstructing a peace officer in the performance of his duties and possession of forged documents.

When that happened, the detention of the accused also transformed into an investigative detention, which does not authorize a search to discover incriminating evidence. [ 29 ] The Prosecutor, for its part, essentially maintains that the accused is speculating about officer Govatsos’s true motivation. [ 30 ] First of all, according to the Prosecutor, there was nothing in officer Govatsos’s evidence at the preliminary inquiry to support the idea that the nature of his investigation changed after he arrested the accused for shoplifting.

The officer did not contend that he suspected or had reason to believe that the accused had committed any offence other than shoplifting. [ 31 ] The Prosecutor also argues that the officer’s only purpose was to confirm the identity of the accused with a valid identification document. Under these circumstances, a violation of

section 8 cannot be argued. IV- ANALYSIS - In the circumstances, did the search of the wallet constitute an infringement of the right guaranteed by

section 8 of the Canadian Charter of Rights and Freedoms ? - Did the nature of the police officer’s investigation change after the arrest for shoplifting, and if so, did the police officer violate

section 10 of the Canadian Charter of Rights and Freedoms by failing to give the caution and to inform the accused of the rights guaranteed by its provisions? [ 32 ] It is important to remember that, unlike the Code of Penal Procedure , [5] the Criminal Code does not impose on persons who have been arrested the obligation to identify themselves. . Police officers may ask questions about a person’s identity and even confirm it by asking for identification papers, but no-one is obliged by the Criminal Code to comply with that request. Where persons who are stopped or arrested refuse to identify themselves, police officers have the powers conferred by

section 498 of the Criminal Code . Such persons may be arrested without a warrant if the officer deems it is in the public interest that they be detained, taking into account, amongst other factors, the need to identify them and, ultimately, take them before a justice pursuant to

section 503 of the Criminal Code . [ 33 ] Moreover, case law clearly establishes the parameters that must guide the police officer when choosing to frisk an arrested person: - The existence of reasonable grounds is not a prerequisite to searching an arrested person: the police officer has discretionary power in conducting the search. - If the police officer chooses to exercise that power, the search must be for a valid objective in pursuit of the ends of criminal justice.

The search must be incidental to the arrest and must be conducted to ensure the safety of the police or the public, to prevent the destruction of evidence by the arrested person or other persons, or to discover evidence that could be used at the trial of the arrested person. The objective sought depends on what the police officer is looking for and the reason for the search.

There must thus be a subjective reason for conducting the search, and that reason must be objectively reasonable. [6] - The search must not be conducted in an unreasonable manner and the use of physical or psychological constraint should be proportionate to the objectives sought, in light of the circumstances as a whole. [ 34 ] How does this apply to the case at bar? [ 35 ] The wallet search conducted by officer Govatsos is not consistent with a valid objective of a search incidental to arrest or with the rule regarding the identification of a person stopped or arrested by an officer. [ 36 ] Given the facts, it is impossible to see any link between the shoplifting offence and the wallet search.

There is nothing to indicate that, from a strictly objective perspective, the wallet could have hidden any evidence related to the shoplifting offence or anything else that could have endangered the safety of the officers or anyone else present at the scene. [ 37 ] Moreover, this was not the testimony of Govatsos, who stated that he searched the wallet for confirmation of the identity of the accused. [ 38 ] Incidentally, the Court does not accept the argument of the accused founded on the transformation of the officer’s investigation and on the powers inherent in investigative detention.

The facts in the record as it stands do not establish, on a balance of

probabilities, that the officer oriented his inquiry in a different way after a certain point to consider the possible commission of the offence of obstruction of justice or obstructing a peace officer in the performance of his duties, much less possession of forged documents. [ 39 ] We must therefore keep strictly to the powers of a police officer in the context of a search incidental to arrest. [ 40 ] In this case, officer Govatsos could not search the contents of the wallet.

If he did not understand the accused’s name, all he had to do was ask him again or ask other questions that would establish his identity in a satisfactory manner, such as asking the accused to produce an identity document, which he admits he did not do. Finally, if this approach still did not achieve satisfactory results, the officer could have used the powers of arrest under

section 498 of the Criminal Code . [ 41 ] In this case, the suspicion based on personal or second-hand experience of similar offences committed in that same branch of the Sears department store chain that arrested individuals tend to give a false identity is not reasonable insofar as there was no suspicion or reason to believe that the accused would hide his true identity from the police. [ 42 ] The Court considers that a wallet carried on one’s person is an object regarding which one might have a reasonable expectation of privacy, even confidentiality, given the personal documents it may contain. [ 43 ] For these reasons, the Court concludes that the search of the accused’s wallet contravened

section 8 of the Canadian Charter of Rights and Freedoms and was an unreasonable search in that it was not authorized by statute. [ 44 ] For the reasons previously stated, the Court does not accept the aspect of the motion based on

section 10 of the Canadian Charter of Rights and Freedoms . - If the answers to either of these questions are affirmative, should the evidence found in the accused’s wallet be excluded on the ground that its use would bring the administration of justice into disrepute? [ 45 ] Section 24 (2) of the Charter states: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances , the admission of it in the proceedings would bring the administration of justice into disrepute . (My underlining) [ 46 ] Recent case law of the Supreme Court of Canada [7] clarifies the factors relevant to determining whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute.

It states that the court’s role is “to balance the assessments under each of these lines of inquiry” to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [ 47 ] These factors are as follows: - the seriousness of the Charter -infringing state conduct - the impact of the breach on the Charter -protected interests of the accused - society’s interest in the adjudication of the case on its merits . - The seriousness of the Charter -infringing state conduct [ 48 ] The officer’s misconduct amounting to a violation of

section 8 consisted in checking the contents of the accused’s wallet [ 49 ] In light of all the circumstances of this case, the violation of

section 8 is at the less serious end of the offence severity scale. [ 50 ] Indeed, we must consider that the accused was arrested for shoplifting and handed over to the police, who arrested him in accordance with the Charter rules. The frisking of the accused was not in itself unreasonable if we exclude the search for an identity document.

Ensuring that the accused did not have on his person other objects stolen from the store was certainly a legitimate objective authorizing the police to frisk him, particularly since the evidence indicates that this had not been done by the security personnel. [ 51 ] In addition, we cannot dispute the equally legitimate objective of an arresting officer seeking to establish the identity of an arrested person, particularly where the difficulty or impossibility of doing so at the scene could result in a longer detention. [ 52 ] Admittedly, not only is the officer’s motivation for searching the wallet questionable, it also has no other serious basis than his own belief.

Nevertheless, we are dealing with the search of the contents of a wallet, placed on a table, following the arrest of the accused and carried out, according to the officer’s testimony, in a reasonable manner. In this case, it cannot be said that this was an overwhelming intrusion, since in all likelihood, it lasted only a short time. - The impact of the breach on the Charter -protected interests of the accused [ 53 ] Under the circumstances, the lawfully arrested accused cannot claim to have a high expectation of privacy. While

section 8 of the Charter protecting against unreasonable searches does not distinguish the circumstances under which they may take place, the Court does not consider that, in this case, the wallet search seriously violated the accused’s individual dignity. We must remember that the search took place following the arrest of the accused and out of sight of the store’s customers. - Society’s interest in the adjudication of the case on its merits

[ 54 ] None of the credit cards or white plastic cards found in the wallet had any indication or inscription identifying or related to the accused. Given the nature of the charges, this is reliable physical evidence, subject to any explanation the accused might give for it. With the consent of the accused, the prosecution filed documents attesting that two of the three credit cards were forged and the third had been used in fraudulent transactions.

These are serious charges for which the offender is liable to a maximum term of imprisonment of ten years of imprisonment, and to fourteen years for the offence of possession of any plate, die, machinery, instrument or other writing that could be used to commit forgery. [ 55 ] All of these factors weigh in favour of the admissibility of this evidence, without which the prosecution declares that it is unable to proceed with the charges.

V- CONCLUSION [ 56 ] Given the nature and the circumstances of the search, the Court concludes that excluding reliable evidence under these circumstances would be more damaging to the reputation of the administration of justice than would its admission. [ 57 ] While it did not comply with the rules regarding the identification of an arrested individual on which the wallet search was dependent, the officer’s conduct, although not as rigorous as it should have been, was not unacceptable since the violation of

section 8 of the Charter was not so enormous and serious that admitting the evidence of the credit cards would, under the circumstances, bring the administration of justice into disrepute. [ 58 ] The Court emphasizes that this decision in no way approves context-sensitive prejudices or preconceived ideas that do not apply to everyone.

Rather, it focuses on the concrete facts that constitute a violation of constitutional rights on the one hand and the intensity and seriousness of that violation on the other. [ 59 ] For all these reasons, the Court concludes that the accused has failed to establish that the evidence seized through the search of his wallet should be excluded. FOR THESE REASONS, THE COURT: DISMISSES the motion to exclude evidence. __________________________________ DENIS LAVERGNE, J.C.Q. Mtre Annabelle Sheppard For the prosecution Mtre Gabriel Boutros For the accused Date of hearing: January 6, 2011