r v. CLIFTON MAXWELL and, 2022 QCCQ 9020

R. c. Maxwell 2022 QCCQ 9020 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” No: 500-01-223358-216 DATE: December 1, 2022 ______________________________________________________________________ BY THE HONOURABLE MÉLANIE HÉBERT, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v.

CLIFTON MAXWELL and DARRYL REDDICK Accused ______________________________________________________________________ DECISION ON THE AMENDED APPLICATION TO EXCLUDE EVIDENCE (VOIR-DIRE 1) ( RECTIFIED ) ______________________________________________________________________ OVERVIEW [ 1 ] Clifton Maxwell and Darryl Reddick are standing trial jointly, in relation to offences relating to the possession of a loaded prohibited firearm, which was found by the police in the Jaguar driven by Reddick [1] and in which Maxwell was a passenger.

Maxwell is also standing trial in relation to two other offences, including having resisted or willfully obstructed a peace officer in the execution of his duty. [ 2 ] Summarily, the police intercepted the Jaguar in which Reddick and Maxwell were taking place to verify if the driver had a valid driver’s licence. Reddick had a learner’s licence and thus was not allowed to drive without being accompanied by someone who had a valid driver’s licence. As a result, Maxwell was asked for his driver’s licence.

Maxwell replied that he did not have his driver’s licence with him and, when asked to identify himself, he replied that his name was Marcus Smith. The police officers tried to confirm that “Marcus Smith” had a valid driver’s licence but were unable to do so. They eventually acquired reasonable grounds to believe that “Marcus Smith” was a false name and thus, arrested Maxwell for obstructing a police officer in the execution of his duty. As the police officers could not confirm if Maxwell had a valid driver’s licence, they decided to tow and impound the Jaguar.

When the tow truck arrived, a police officer performed an inventory search of the Jaguar, and a loaded prohibited firearm was found. Reddick and Maxwell were arrested for possession of a firearm. Reddick was told that he had the right to retain and instruct counsel without delay but was only able to speak to counsel later, after his arrival at the police station. [ 3 ] At trial, Reddick and Maxwell filed an Amended Application to exclude the firearm from the admissible evidence.

In the Application, Reddick and Maxwell first alleged that police violated their rights to be secured against unreasonable search or seizure, guaranteed by s. 8 of the Canadian Charter of Rights and Freedom [2] , by carrying an illegal search of the Jaguar. In this regard, the arguments presented by the Defence raised both factual and legal issues concerning the authority of police officers to perform an “inventory search” of a car prior to towing, seizing or impounding the car, pursuant to the Highway Safety Code [3] .

Second, Reddick also alleged that his right to retain and instruct counsel without delay, guaranteed by s. 10b) of the Charter [4] , was violated as he was not able to speak to counsel until his arrival at the police station [5] .

Finally, the Defence argued that the firearm should be excluded from the evidence admissible at trial pursuant to s. 24(2) of the Charter [6] as it was obtained in violation of Reddick’s and/or Maxwell’s right(s). [ 4 ] In response, the Prosecution argued that the search of the Jaguar was an inventory search authorized by law [7] ; that it was conducted reasonably; and thus, that it did not violate Reddick’s and Maxwell’s rights to be secured against unreasonable search or seizure.

The Prosecution further argued that the delay that elapsed before Reddick was able to speak to counsel was reasonable in the circumstances of this case and thus, Reddick’s right to retain and instruct counsel without delays was not violated.

Finally, the Prosecution added that even if the Court concluded that Reddick’s and/or Maxwell’s rights were violated, the firearm should not be excluded from the admissible evidence, pursuant to s. 24(2) of the Charter . [ 5 ] While the Court had taken this matter under advisement, the Superior Court of Quebec struck down the rule that authorized police officers to randomly stop a motorist, deciding that the rule resulted in arbitrary detention and allowed for potential abuse, such as racial profiling [8] .

In the matter at hand, Reddick and Maxwell are black men and were, at the time of their interception, driving a Jaguar. They were stopped randomly by police officers who wanted to verify if the driver had a valid driver’s licence. The Court requested additional arguments regarding a potential violation of Maxwell's and Reddick's rights not to be arbitrary detained, guaranteed by s. 9 of the Charter [9] . In this regard, the Defence argued that Maxwell's and Reddick's rights not to be arbitrary detained were violated when they were randomly stopped by police, while the Prosecution argued the contrary.

[ 6 ] As a result of the foregoing, four questions are at issue in this matter. First, did the police violate Maxwell's and Reddick's rights not to be arbitrary detained when they decided to stop the Jaguar to verify if the driver had a valid driver’s licence? Second, did the police violate Maxwell's and Reddick's rights to be secured against unreasonable search or seizure when they searched the Jaguar? Third, did the police violate Reddick’s right to retain and instruct counsel without delay by not allowing him to call his counsel until his arrival at the police station?

Fourth, if the Court concludes that the police violated Reddick’s and/or Maxwell’s right(s), should the firearm be excluded from the evidence admissible at trial? ANALYSIS A. Did the police violate Maxwell's and Reddick's rights not to be arbitrary detained when they decided to stop the Jaguar to verify if the driver had a valid driver’s licence?

I) The relevant facts [ 7 ] The facts relevant to this first question are simple and non-contested. On the morning of September 8, 2021, police Officers Plouffe and Hade were on patrol, travelling west on St. Jacques Street. At approximately 7:35 a.m., while they were stopped at a red light, they saw a Jaguar leaving the parking lot of a motel [10] and heading west on St. Jacques Street.

Officer Plouffe noticed that the driver of the Jaguar was a black man, while Officer Hade noticed that both the driver and the passenger were black men. [ 8 ] When their light turned to green, Officers Plouffe's and Hade's patrol car ended up behind the Jaguar on St. Jacques Street. The officers investigated the Jaguar’s licence plate in police databases. The investigation revealed that the Jaguar was registered to a rental company but despite additional inquiries, the officers could neither identify the potential driver of the Jaguar nor confirm that he had a valid driver’s licence.

At 7:40 a.m., they stopped the Jaguar to verify if the driver had a valid driver’s licence. II) The governing principles [ 9 ] The Jaguar that Reddick was driving and in which Maxwell was a passenger was randomly stopped by Officers Plouffe and Hade. The police practice of randomly stopping a motorist came under scrutiny in the Supreme Court cases of R. v . Dedman [11] , R. v . Hufsky [12] and R. v . Ladouceur [13] . [ 10 ] Dedman was stopped randomly on the side of the road at a police checkpoint set up to verify the sobriety of motorists.

There was nothing improper about Dedman’s driving nor the condition of his car. The police officer who stopped Dedman had neither reasonable grounds to believe that Dedman had committed an offence nor a reasonable suspicion that he had alcohol in his body. During his interactions with Dedman, the police officer formed a reasonable suspicion that Dedman had alcohol in his body and asked him to provide a breath sample for analysis. Despite repeated attempts, Dedman failed to provide a sample for analysis. He was charged with failing or refusing to comply with a roadside demand for a breath sample.

Dedman contested the legality of the random stop, arguing that there was no statutory nor common law authority conferring such a power upon police officers. The majority of the Supreme Court dismissed Dedman’s argument, deciding that the common law doctrine of ancillary police powers, which was first articulated in the English case Waterfield [14] , conferred upon police officers the authority to randomly stop motorists to verify their sobriety.

In short, the Dedman Supreme Court decision confirmed that police had common law authority to randomly stop motorists at checkpoints. [ 11 ] Hufsky was stopped randomly, as part of a spot-check aimed at verifying if the stopped motorist had a valid driver’s licence and if he was sober. There were no criteria, standards, guidelines nor procedures to determine which motorists would be submitted to the spot check procedure. While interacting with Hufsky, the police officer formed a reasonable suspicion that Hufsky had alcohol in his body. He asked Hufsky to provide a breath sample for analysis.

Hufsky refused and was charged with refusing to provide a breath sample. The law had changed since the Dedman case had been decided by the Supreme Court. At the time of Hufsky’s arrest, t he Ontario Highway Traffic Act [15] conferred upon police officers the statutory authority to randomly stop motorists. In addition, the Charter had come into force.

Thus, Hufsky argued that the provision of the Ontario HTA authorizing random stops of motorists violated his right not to be arbitrary detained, guaranteed by s. 9 of the Charter [16] . [ 12 ] In its decision, the Supreme Court recognized that random stops of motorists conducted in an organized spot check program resulted in arbitrary detention because there were no criteria for the selection of the drivers to be stopped. Thus, such stops violated Hufsky’s right not to be arbitrary detained, guaranteed by s. 9 of the Charter .

With that said, the Supreme Court underlined the importance of highway safety and the important role played by random stops of motorists in increasing both the detection and the perceived risk of detection of motor vehicle offences. Thus, the Supreme Court concluded that even if the contested provision of the Ontario HTA violated the right not to be arbitrary detained, this provision was reasonable and demonstrably justified in a free and democratic society, within the meaning of s. 1 of the Charter [17] .

In short, the Hufsky Supreme Court decision confirmed the legality of the police practice of randomly stopping motorists in organized spot check programs. [ 13 ] As for Ladouceur, he was randomly stopped by two police officers to verify if he had a valid driver’s licence. The police officers did not suspect nor have reasonable grounds to believe that Ladouceur was acting unlawfully. They were not participating in an organized spot check or checkpoint program. They were on a regular patrol, and they simply decided to randomly stop Ladouceur.

After being stopped, Ladouceur admitted that his driver’s licence was suspended. He was charged with driving while his licence was suspended. He argued that such random stops, which are not part of an organized spot check or checkpoint program, violated his right not to be arbitrary detained guaranteed by s. 9 of the Charter [18] . [ 14 ] In its decision, the Supreme Court reiterated that the police practice of randomly stopping motorists violated the right not to be arbitrary detained guaranteed by s. 9 of the Charter .

However, the Supreme Court disagreed when came time to decide if the provision of the Ontario HTA authorizing such a practice was reasonable and demonstrably justified in a free and democratic society, within the meaning of s. 1 of the Charter . The majority of the Supreme Court decided that it was, emphasizing the importance of random stops to ensure highway safety.

The minority of the Supreme Court disagreed explaining that sanctioning such a police practice would mean a total negation of the freedom from arbitrary detention for motorists, as any police officer could stop any motorists, at any time, in any place, without having any reason to do so. In short, while the Supreme Court decision was not unanimous, it confirmed the legality of the police practice of randomly stopping motorists, even in cases where the stop was not part of an organized spot check or checkpoint

program. [ 15 ] In December 1990, a few months after the Ladouceur decision, the National Assembly of Quebec adopted a modification to the provisions of the HSC to authorize random stops of motorists by police officers acting in the performance of their duties [19] . Thus, since that time, Quebec police officers have had statutory authority to randomly stop a motorist pursuant to the HSC . In fact, such was the law until October 25, 2022, when the Superior Court of Quebec, in the Luamba v.

Procureur Général du Québec [20] decision, struck down both the common law rule articulated in the Supreme Court Ladouceur decision and the provision of the HSC that authorized random stops of motorists [21] . [ 16 ] Luamba is a young black man who was randomly stopped by police officers while driving, on three occasions, within a period of fourteen months. On each of these occasions, Luamba did not receive a statement of offence.

Luamba filed suit against the state, alleging that the common law rule articulated in the Supreme Court Ladouceur decision and the provision of the HSC that authorized random stops of motorists violated his constitutional rights [22] and could not be justified in a free and democratic society, within the meaning of s. 1 of the Charter . According to Luamba, the common law rule and the HSC provision at issue in this case have been diverted from their main purpose, highway safety, to allow for racial profiling.

Thus, Luamba asked the Superior Court to invalidate both the common law rule and the HSC provision at issue in this case, pursuant to s. 52(1) of the Constitution Act of 1982 [23] . [ 17 ] In its analysis, the Superior Court acknowledged that the question raised by Luamba regarding the violation of his right not to be arbitrary detained, guaranteed by s. 9 of the Charter , had already been decided by the Supreme Court in the 1990 Ladouceur decision.

In such circumstances, the vertical stare decisis rule requires that the lower court examine the decision rendered by the higher court to determine if the rationale adopted by the higher court (its ratio decidendi ) is binding or distinguishable from the matter to be decided by the lower court. If the rationale adopted by the higher court is binding, the lower court must apply that rationale [24] . A lower court is, however, entitled to depart from the rationale adopted by a higher court if a new legal issue is raised, or if there is a significant change in the circumstances or evidence [25] .

With that said, in the Luamba decision, the Superior Court found that the rationale adopted by the Supreme Court in the Ladouceur decision was binding. However, the Superior Court found that it was entitled to depart from that rationale because a new legal issue had been raised [26] and because the evidence adduced established a significant change of circumstances [27] .

In Short, the Superior Court concluded that it could decide “anew” the issue raised by Luamba regarding the alleged violation of his right not to be arbitrary detained. [ 18 ] After reviewing the evidence, the Superior Court decided that the common law rule and the HSC provision at issue in this case resulted in an arbitrary detention and therefore violated s. 9 of the Charter [28] , a finding which is consistent with the Supreme Court decision in Ladouceur .

However, the Superior Court found that the common law rule and the HSC provision at issue in this case could not be justified in a free and democratic society, within the meaning of s. 1 of the Charter , a finding that departs from the Supreme Court decision in Ladouceur [29] .

Consequently, the Superior Court invalidated the common law rule articulated in the Ladouceur decision and the provision of the HSC that authorized random stops of motorists [30] . [ 19 ] A declaration of invalidity made pursuant to s. 52(1) of the Constitution Act of 1982 , such as to one made by the Superior Court in the Luamba decision, means that the law, whether it be a common law rule or a statutory provision, is of no force nor effect to the full extent of its inconsistency with the Constitution [31] . Such a declaration has impacts beyond the case in which it was made.

As stated by the Supreme Court: “ to the extent that the law is unconstitutional, it is not merely inapplicable for the purposes of the case at hand. It is null and void and is effectively removed from the statute books” [32] . In a nutshell, if it were to be applicable to the matter at hand, the declaration of invalidity made in the Luamba decision would mean that the common law rule articulated in the Ladouceur decision and s. 636 of the HSC would no longer exist.

Otherwise said, police officers would no longer have the authority to randomly stop motorists outside an organized “spot-check” or “checkpoint” program. [ 20 ] The Luamba decision was however appealed, and its conclusions are suspended pending the appeal. This means that as of today, the common law rule articulated in the Ladouceur decision and s. 636 of the HSC are still in force. Otherwise said, the law still authorises police officers to perform random stops of motorists, even if they are not participating in an organized “spot-check” or “checkpoint” program.

III) The answer to the first question [ 21 ] In the matter at hand, when Officers Plouffe and Hade decided to stop the Jaguar, they did not suspect nor have reasonable grounds to believe that Reddick and/or Maxwell were acting unlawfully. Officers Plouffe and Hade were not participating in an organized “spot check” or “checkpoint” program. They were on a regular patrol, in their patrol car. They decided to stop the Jaguar to verify if the driver had a valid driver’s licence after having investigated the Jaguar’s licence plate in the police databases.

It is not contested that Officers Plouffe’s and Hade’s had, on that day, the authority to stop the Jaguar and that their authority derived from the common law rule articulated in the Supreme Court Ladouceur decision and from s. 636 of the HSC . [ 22 ] Because the Luamba decision has been appealed, its conclusions have no impact on the matter at hand. The Court must apply the law that is in force on the day of its decision and decide the matter relying on the evidence presented at trial.

As of today, the common law rule articulated in the Supreme Court Ladouceur and s. 636 of the HSC are still in force and still authorize police officers to randomly stop motorists even if they are not participating in an organized “spot-check” or “checkpoint” program.

Otherwise said, the Court cannot depart from the rationale of the Ladouceur decision because it is binding, and the Court cannot refuse to apply s. 636 of the HSC because it is still in force. [ 23 ] In the matter at hand, the evidence shows that Officers Plouffe or Hade knew, before deciding to stop the Jaguar, that its occupants were two black men. There is, however, no evidence that the Jaguar was stopped because Reddick and Maxwell were black men. The evidence shows that officers investigated the Jaguar’s licence plate in police databases.

The investigation revealed that the Jaguar was registered to a rental company but despite additional inquiries, the officers could neither identify the potential driver of the Jaguar nor confirm that he had a valid driver’s licence. Thus, they decided to stop the Jaguar to verify if the driver had a valid driver’s licence, a stop which is within the purview of the HSC .

[ 24 ] As a result of the foregoing, the Court finds that the police did not violate Maxwell’s and Reddick’s rights to be arbitrary detained when they decided to randomly stop the Jaguar to verify if the driver had a valid driver’s licence. The stop was authorized by law and was within the purview of the HSC . B. Did the police violate Maxwell's and Reddick's rights to be secured against unreasonable search or seizure when they searched the Jaguar? [ 25 ] The second question at issue raises four different sub-questions.

First, was the search performed by Officer Plouffe an inventory search (as opposed to a search to gather evidence or information on Reddick?) Second, are inventory searches authorized by law and if so, is the law reasonable? Third, if inventory searches are authorized by law, and if the search performed by Officer Plouffe was an inventory search, was the decision to perform such a search premature in this case, as the police officers did not know if Reddick had committed an offence under the HSC ?

Fourth, if the search performed by Officer Plouffe was an inventory search, was it performed reasonably [33] ? [ 26 ] The Court will begin its analysis by summarizing the relevant facts and the governing principles. The Court will then address each of the four sub-questions identified above.

I) The relevant facts The stop and the first interaction with Reddick and Maxwell [ 27 ] Officers Plouffe and Hade intercepted the Jaguar at 7:40 a.m. on a one-way street located north of the Highway 20 west entrance, where stopping is prohibited. There are no parking spaces, houses nor businesses on the side of the street [34] . [ 28 ] Officer Plouffe walked up to the driver, Reddick, and explained the reason for the interception. Reddick was calm, cooperative, and polite.

He gave his learner’s licence and the Jaguar’s rental contract to Officer Plouffe, adding that he did not have the Jaguar’s registration certificate nor its proof of insurance. Officer Plouffe asked Reddick if the address on his licence was correct, and Reddick said that it was. Because Reddick had a learner’s licence, Officer Hade asked the passenger, who would later be identified as Maxwell if he had a valid driver’s licence. Maxwell said that he had a valid Ontario driver’s licence but mentioned that he did not have identification documents with him.

Officer Hade then asked Maxwell if he would agree to provide his name so that the information regarding his driver’s licence could be verified. Maxwell agreed. He informed Officer Hade that his name was Marcus Smith, provided a date of birth and an address in Ontario. Officer Hade noted the information, repeated it to Maxwell who confirmed that it was right.

Officer Hade then cautioned Maxwell, telling him that providing false information could lead to a charge of obstruction and Maxwell said that he understood [35] . [ 29 ] Officers Plouffe and Hade returned to their patrol car to verify the information obtained in the police databases. They were able to confirm that Reddick’s learner’s licence was valid, but they could neither confirm Marcus Smith’s identity nor the fact that he had a valid Ontario driver’s licence.

The information concerning Reddick [ 30 ] While Officer Hade was consulting various police databases, Reddick’s IPPE came up on the computer screen of the patrol car. Someone’s IPPE contains various information including, for example, pending warrants, past convictions as well as past and present court-imposed conditions. [ 31 ] Officer Hade “scanned” through the information contained in Reddick’s IPPE and shared it with Officer Plouffe. At trial, he testified that he did not remember all the information that was in Reddick’s IPPE.

He remembered that it contained past convictions, court-imposed conditions, and a warning of potential violent behaviour. As for Officer Plouffe, he testified that Officer Hade provided him with information, although he could not remember if all the information contained in Reddick’s IPPE was provided to him. [ 32 ] Reddick’s IPPE was filed at trial [36] .

It contained a mention that Reddick was under investigation (“option 2”) [37] and a request to communicate the following information to Officer Rioux: the circumstances and the location of the intervention; Reddick’s physical description, including what he was wearing; the identity of any person found with him; and, if possible, a confirmation of Reddick’s address and phone number [38] .

In this regard, Officer Plouffe, testified that intervening with someone whose IPPE indicates that he is under investigation (“option 2”) is not unusual. [ 33 ] Officer Hade explained that the mention that someone is under investigation (“option 2”) is usually included in the person’s IPPE by an investigating officer. If he sees such a mention, he will try to gather the requested information. However, the circumstances of his interaction with the person under investigation may not make it possible to gather the requested information.

Otherwise said, the fact that someone’s IPPE includes a request for information does not create an obligation to make additional verifications when interacting with that person. However, and according to Officer Hade, the police officer who interacted with that person has the obligation to forward the information obtained to the investigating officer [39] . Plouffe’s testimony on this issue was similar. He explained that a request for information included in someone’s IPPE does not create an obligation to gather the requested information.

He would only ask for the requested information if the legal context allowed him to do so. [ 34 ] Reddick’s IPPE also indicated that he was the subject of an increased surveillance program [40] . At trial, Officer Hade could not remember if he saw that mention during the intervention but added that he does not know this program.

As for Officer Plouffe, when he was shown Reddick’s IPPE at trial, he testified that it was the first time that he saw a reference to the increased surveillance program, adding that he did not know the program. [ 35 ] Finally, Reddick’s IPPE contained a warning of potential violence [41] . When questioned on the impact of this warning, Officers Plouffe and Hade testified that they did not take additional security measures after reading the information in Reddick’s IPPE.

First, both officers testified that a warning of potential violent behaviour is something that they often see when they are investigating a person with prior convictions. Second, both officers testified that there was no need to take additional security measures at that point in the

intervention, as Maxwell and Reddick were calm and cooperative. In short, and as explained by Officer Plouffe, while security is always a concern, the risk assessment of an intervention depends mostly on the context of the intervention and the behaviour of the person(

s) involved. In this case, it was an HSC stop and Maxwell and Reddick were both calm and cooperative. The arrival of the Kia and of police backup [ 36 ] At approximately 7:50 a.m., while Officers Plouffe and Hade were still in their patrol car, they saw a Kia arriving on the scene of the interception and pulling over in front of the Jaguar. The Kia looked like a car that both officers had seen earlier, in the parking lot of the motel from which the Jaguar exited. [ 37 ] Immediately upon the arrival of the Kia, Maxwell stepped out of the Jaguar and started walking towards the officers’ patrol car.

The driver of the Kia, a woman who would later be identified as Lorrain Angel Dray, stepped out of the Kia and started walking towards the rear passenger door of the Jaguar. Officer Plouffe got out of the patrol car, walked up to Dray, and asked her to step away from the Jaguar. Dray mentioned that she wanted to collect her purse, which was in the Jaguar. Officer Plouffe informed Dray that she could collect her purse after the intervention and Dray returned to her car [42] .

While interacting with Dray, Officer Plouffe saw a bag on the floor of the Jaguar, behind the passenger seat. [ 38 ] When the Kia arrived on the scene of the intervention, Officer Hade called for backup [43] . He then stepped out of the patrol car and walked towards Maxwell. He told him that he could not confirm his identity and cautioned him again against providing false information to police. Maxwell reiterated that his name was Marcus Smith.

Officers Plouffe and Hade returned to their patrol car to continue the investigation on “Marcus Smith”. [ 39 ] At approximately 7:54 a.m., Officers Servant and Smith arrived on the scene of the intervention. As they had little information about the ongoing intervention [44] , they parked their patrol car in front of the Kia [45] . Officer Servant walked towards the Kia [46] while Officer Smith met up with Officers Plouffe and Hade to get information about the ongoing intervention. After being provided with the information [47] , Officer Smith was asked to keep an eye on the Jaguar.

As he got close to the Jaguar, Officer Smith saw that Reddick was sitting in the Jaguar’s driver’s seat, sleeping. He kept an eye on Reddick while officers Plouffe and Hade continued to investigate “Marcus Smith”. [ 40 ] As for officer Servant, he identified the two women who were in the Kia: the driver, Dray, was identified with her driver’s licence while the passenger, Macdonald, was identified with her health insurance card [48] . Officer Servant had a conversation with the two women in the Kia [49] .

Dray told him that the two men in the Jaguar were friends with whom they had spent the night and that she wanted to know what was going to happen to them [50] . Dray never told Officer Servant that she wanted to recover her purse from the Jaguar. After approximately 10 minutes, Officer Servant left the two women. He met up with Officer Smith, who was keeping an eye on the Jaguar. He noticed that Reddick was in the Jaguar, sleeping. Officer Smith provided him with the information he had obtained regarding the ongoing intervention. Maxwell’s arrest [ 41 ] At approximately 8:00 a.m.

Officer Hade arrested Maxwell for obstructing a police officer in the execution of his duties [51] . Maxwell was informed of the reason for his arrest, was informed of his rights, including his right to retain and instruct counsel without delay, was summarily search and placed in the back of Officers Plouffe’s and Hade’s [52] patrol car. Because Maxwell had remained calm and cooperative throughout the intervention, he was not handcuffed. Maxwell was provided with an opportunity to communicate with counsel but initially refused. He changed his mind and asked for his cell phone to speak with counsel.

Officer Hade gave Maxwell his cell phone, but Maxwell finally decided not to make a call [53] . The decision to tow the Jaguar, the inventory search and the discovery of the firearm [ 42 ] After Maxwell’s arrest, Officer Plouffe walked up to the Jaguar and saw that Reddick, who was still in the driver’s seat, was sleeping. He woke Reddick and told him that they were still trying to know if Maxwell had a valid driver’s licence [54] . Reddick was cooperative and said that he understood. Officer Plouffe then returned to his patrol car.

The decision to tow and impound the Jaguar was taken because of the unfolding situation: Reddick had a learner’s licence; Maxwell, the person who was accompanying him, had been arrested; Officers Plouffe and Hade had neither been able to confirm Maxwell’s identity nor the fact that he had a valid driver’s licence. Officer Plouffe communicated with a towing company to arrange for the towing of the Jaguar [55] . [ 43 ] While waiting for the tow truck, Officers Plouffe and Hade remained in their patrol car.

Officer Plouffe prepared the necessary paperwork for the towing and the impounding of the Jaguar while Officer Hade continued his investigation to identify Maxwell. At one point, Officer Plouffe saw Reddick getting out of the Jaguar and waiting outside. [ 44 ] At 8:30 a.m., the tow truck arrived. Officer Plouffe walked up to the Jaguar, advised Reddick, who was sitting in the driver’s seat, that the Jaguar would be towed and explained why it was necessary.

Officer Plouffe also told Reddick that he would perform an inventory search of the Jaguar and gave Reddick the opportunity to collect his personal property from the Jaguar [56] . Reddick shut the Jaguar’s engine; closed the window and the roof of the Jaguar; took a five-dollar bill and a cell phone; got out of the Jaguar; and collected a cell phone from the trunk of the Jaguar. Reddick then said that he had collected his personal property.

Given that Dray had tried to collect her purse from the Jaguar, Officer Plouffe opened the back passenger door, grabbed the bag that was on the floor with one hand, showed it to Reddick and asked him if he wanted to get it [57] . Reddick answered that the bag was not his. While he was holding the bag, Officer Plouffe noticed that the bag was heavy, even if it was not full, and that it contained an object which was hard. As soon as he put his second hand on the bag, Officer Plouffe knew that the object was a firearm and yelled “gun”. Officer Plouffe unzipped the bag and saw a firearm.

Reddick was arrested for possession of a firearm and was eventually placed in officers Smith’s and Servant’s patrol car. Maxwell, who was still in Officers Plouffe’s and Hade’s patrol car, was also arrested for possession of a firearm. Steps taken after Reddick’s and Maxwell’s arrest

[ 45 ] Officer Plouffe called his superior, Sergeant Brault to tell him that they had seized a firearm [58] . Another superior officer, Sergeant Bournival, called him back. Sergeant Bournival authorized the detention of Reddick and Maxwell and told Officer Plouffe to take them both to the South Operational Center [59] . [ 46 ] The driver of the tow truck was asked to leave as the Jaguar would be thoroughly searched. Officer Pagé-Fréchette received the order to attend the scene of the intervention to supervise the search of the Jaguar. Sergeant Bournival provided her with the necessary information.

She arrived on the scene at 8:40 a.m., took charge of the Jaguar and remained there until the search was completed at 11:00 a.m. [ 47 ] Before leaving the site of the intervention, Officer Plouffe searched the Jaguar and found a bank card that allowed for the positive identification of Maxwell [60] . Further investigation revealed that Maxwell’s driver’s licence was suspended. Thus, a statement of offence was issued to Reddick. The involvement of two other officers [ 48 ] On the morning of Reddick and Maxwell’s arrest, Officers Bellavance and Sauvé were working on an ongoing breaking and entering investigation.

Reddick had been identified as a suspect in a photo line-up and, the two officers were getting ready to arrest him. At 8:35 a.m., one of the officers consulted the police database and noticed that an interception involving Reddick was ongoing. At 8:50 a.m., Officer Bellavance contacted Sergeant Bournival, who provided her with information regarding the ongoing interception. During this conversation, Officer Bellavance requested that Reddick and Maxwell be transported to the South Operational Center.

II) The governing principles [ 49 ] As stated above, s. 8 of the Charter guarantees the right to be secured against unreasonable search or seizure. [ 50 ] A warrantless search is presumptively unreasonable. In such situation, the Prosecution bears the burden of showing that the search was, on a balance of probabilities, reasonable. To meet this burden, the Prosecution must show that the search was authorized by a common law power or by a statutory provision, that the common law power or the statutory provision authorizing the search is reasonable and that the search was carried out reasonably [61] .

Whether there is authority to perform an inventory search and whether it is reasonable [ 51 ] The question at issue in this matter, whether police are authorized to perform an inventory search of a car that they are seizing and/or impounding pursuant to the HSC , has been addressed in previous decisions rendered by judges of the same level court with what appears to be conflicting results. In some of these previously rendered decisions, the Court concluded that the authority of the police to perform an inventory search of a car flows from the police power to seize and/or impound the car under the HSC .

In other previously rendered decisions, the Court appears to have concluded that the police did not have the power to perform an inventory search of a car that they had the power to seize and/or impound pursuant to the HSC . [ 52 ] The fact that conflicting decisions exist is not a reason to sidestep the horizontal stare decisis rule [62] . Rather, in such a situation, the court must examine the rationale ( ratio decidendi ) of the previously rendered decisions to determine whether this rationale is binding or distinguishable. If the rationale is binding, the court must follow it [63] .

In its analysis, the court must keep in mind that a same level court can only depart from a binding previous decision in three narrow circumstances: first, if the rationale of the earlier decision has been undermined by subsequent appellate decisions; second, if the earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); third, if the earlier decision was not fully considered, for example, it was taken in exigent circumstances [64] . [ 53 ] The first decision to address the police power to perform an inventory search was Joseph v .

R. [65] Joseph was stopped by police for speeding. Joseph’s driver’s licence was suspended. His passenger had an expired learner’s licence. The police officers advised Joseph that the car would be seized and impounded for 30 days. They allowed Joseph to take his personal property from the car and advised him that they would perform an inventory search of the car. While performing the inventory search, the police officers found drugs.

At trial, Joseph argued that the inventory search performed by the police officers violated his right to be secured against unreasonable search or seizure guaranteed by s. 8 of the Charter . The police officers testified that the search performed was an inventory search, explaining that it was standard procedure to proceed as they did when a car was to be seized and impounded.

After reviewing the decisions rendered on this question by courts in other provinces, the Court decided that the police officers’ authority to perform an inventory search derived from their statutory authority to seize and impound a car provided for at s. 209.1 of the HSC [66] . The Court also concluded that the statutory authority to seize and impound a car is reasonable [67] . [ 54 ] The rationale of the Joseph decision is twofold. First, when police officers have authority to seize and impound a car pursuant to s. 209.1 of the HSC , they also have authority to perform an inventory search of that car.

Second, the statutory authority authorizing police officers to perform inventory search is reasonable. There is no indication that the Joseph decision was reached per incuriam, that it was taken in exigent circumstances, nor that its rationale was undermined by a subsequent appellate decision. Thus, according to the horizontal stare decisis rule, this decision was and still is binding upon other judges of the same level court [68] . [ 55 ] In the R. v . Benali [69] and the Sinclair v .

R. [70] decisions, the Court extended the rationale of the Joseph decision to ss. 209.2 and 636.2 of the HSC , two provisions that also confers upon police officers the authority to seize and/or impound a car. [ 56 ] In Paulotte Saintelus v . R . [71] , the Court followed the rationale of the Joseph decision, stating that the power to perform an inventory search flows from the power to seize and/or impound a car pursuant to the HSC [72] . But, in this case, the Court had an additional question to decide.

Indeed, the evidence at trial showed that the police officers that performed the inventory search had not respected all applicable HSC provisions before performing the search. More specifically, the police officers had not allowed Paulotte Saintelus to recover his personal property before searching the car, contrary to the requirement provided for by s. 209.6 of the HSC . The Court decided that the inventory search was abusive because it was not carried reasonably, as the police officers had failed to comply

with s. 209.6 of the HSC before performing the search [73] . The Court reached the same conclusion in the Sinclair decision [74] . [ 57 ] In R. v . Chenier [75] , R. v . Saindon [76] and R. v . Lacasse [77] , the Court appears to have taken the position that s. 209.1 or s. 636.2 of the HSC did not authorize police officers to perform an inventory search of a car that they were about to seize and/or impound [78] . In making these comments, the Court did not refer to the previously rendered Joseph decision and its rationale. It could thus be said that these comments were made per incuriam .

With that said, it is important to understand that the rationale of these decisions is deeply rooted in their specific facts. In Chenier , the Court did not believe that the search performed by the police officer was an inventory search but rather believed that the police officer had an oblique motive and that he was looking for evidence of illegal activities [79] . In Saindon and Lacasse , the Court concluded that the police did not have the power to seize and/or impound the car pursuant to the HSC , and thus, did not have the authority to perform an inventory search [80] . [ 58 ] In the Gagné v .

R. [81] decision, the Court recognized that judges from the same level court had previously decided that the power to perform an inventory search flew from the power to seize and/or impound a car pursuant to the HSC . However, in that specific case, the Court found that the search performed by the police officer was not an inventory search [82] . The rationale of this case is also rooted in its specific facts. [ 59 ] After having reviewed these decisions, the Court is of the opinion that the rationale of the Joseph , Benali , and Sinclair decisions is binding.

The law is clear: police officers are authorized to perform an inventory search of a car when they are authorized to seize and/or impound the car pursuant to s. 209.1, s. 209.2 or s. 636.2 of the HSC . Otherwise said, in such situations, an inventory search is authorized by law and the law that authorizes the search is reasonable. [ 60 ] The Court is also of the opinion that the rationale of the Paulotte Saintelus decision [ 83] is binding. Police officers performing an inventory search must, before they do so, allow the driver of the car to retrieve his personal property, pursuant to s. 209.6 of the HSC .

Circumstances where an inventory search can be performed [ 61 ] As stated above, police officers are authorized to perform an inventory search of a car when they are authorized to seize and/or impound the car pursuant to s. 209.1, s. 209.2 or s. 636.2 of the HSC . In the matter at hand, the Prosecution argued that the inventory search of the Jaguar was authorized because the police officers had the authority, pursuant to s. 209.1 or s. 636.2 of the HSC, to seize and/or impound the Jaguar.

Thus, the Court will now turn its attention to the wording of these two sections to identify the circumstances that triggers the authority to seize and/or impound a car. [ 62 ] S ection 209.1 of the HSC authorizes a police officer who has reasonable cause to believe that a person is driving without holding the appropriate driver’s licence to immediately seize the car and impound it for a period of 30 days.

As for s. 636.2 of the HSC , it authorizes a police officer who has reasonable grounds to believe that an offence has been committed under the HSC to take possession of the car, drive it, and impound it at the expense of the owner [84] . [ 63 ] In the matter at hand, the Prosecution argued that Officers Plouffe and Hade had reasonable grounds to believe Reddick had committed an offence under the HSC because he was accompanied by someone who did not have his licence with him.

Section 99 of the HSC provides that the driver who has a learner’s licence must be assisted by a person who has held, for at least two years, a valid driver’s licence. Additionally, that person must carry his driver’s licence with him. A driver who contravenes the obligations set out in s. 99 of the HSC is committing an offence, as provided for by s. 140.1 of the HSC . Moreover, s. 102 of the HSC provides for the obligation of every person referred to in s. 99 of the HSC to surrender his licence for inspection upon request of a police officer.

Failure to do so amounts to an offence, pursuant to s. 139 of the HSC . III) The answer to the second question [ 64 ] The Court will provide an answer to each of the four sub-questions and then provide its conclusion on the second question. First sub-question: w as the search performed by Officer Plouffe an inventory search? [ 65 ] The Defence argued that Officers Plouffe’s and Hade’s decision to tow and impound the Jaguar was tainted by the information they saw in Reddick’s IPPE, more specifically, the request for information made by Officer Rioux.

In other words, the Defence alleged that the officers used their authority to perform an inventory search for an oblique motive, to gather evidence or information about Reddick [85] .

This first argument requires the Court to assess the evidence presented, including the credibility and reliability of the police officers who testified. [ 66 ] Overall, Officers Plouffe, Hade, Servant and Smith provided a clear, detailed, frank and honest description of the events that unfolded during their intervention. [ 67 ] There were inconsistencies in their testimonies, and these inconsistencies were addressed by the Court in its

summary of the relevant facts [86] . Many of these inconsistencies can be explained. For example, Officer Plouffe testified that he gave Reddick the opportunity to gather his personal property before beginning his inventory search and that Reddick did so. Officer Servant testified that he did not see Reddick collecting his personal property from the car. However, Officer Servant also testified that at that point in time, Maxwell was yelling. He went to see Maxwell who was with Officer Hade in the patrol car. This explains why officer Servant did not see Reddick collecting his personal property from the Jaguar.

As for Officer Smith, he testified that he did not recall if Reddick was given the opportunity to collect his personal property from the Jaguar. The fact that he does not recall that information does not mean that Reddick was not given the opportunity to collect his personal property. Other inconsistencies show that the officers do not have the same recollection of what could, at the time of the intervention, appear to be a peripheral detail for them.

The officers’ testimony regarding the timing of the Kia’s departure from the interception site is an example of this situation. [ 68 ] After having considered the evidence presented, the Court finds that the inconsistencies in the officers’ testimony do not adversely impact on their credibility nor on their reliability [87] . The testimonies of Officers Plouffe, Hade, Smith and Servant were

overall credible and reliable. With that conclusion in mind, the Court will now turn its attention to the factual evidence presented. [ 69 ] Officers Plouffe and Hade stopped the Jaguar randomly to verify the driver’s licence. The evidence shows that they did not know who was in the Jaguar before they stopped it [88] . Once the Jaguar was stopped Officer Plouffe asked Reddick for his driver’s licence and verified if the address on the licence was still correct. As for officer Hade, he asked Maxwell for information because Reddick had a learner’s licence.

The officers’ explanations regarding the information sought in their first interaction with Reddick and Maxwell were not adversely affected by their cross-examination. Their testimonies on this subject are consistent with each other and are consistent with the legal framework of the HSC , which requires that a person with a learner’s licence be accompanied by someone who holds a valid driver’s licence and that both surrender their licence for inspection [89] . [ 70 ] The fact that Officers Plouffe and Hade took cognizance of the information contained in Reddick’s IPPE is not contested.

Neither is the fact that they were aware that Reddick was under investigation and that there was a pending request for information from Officer Rioux concerning Reddick’s physical description, including what he was wearing; the identity of any person found with him; and, if possible, a confirmation of Reddick’s address and phone number. On that subject, both officers explained that a request for information, such as the one made by Officer Rioux, is not mandatory. With that said, both officers testified that they usually try to gather the requested information, if it is possible.

The officers’ explanations on this topic were not adversely affected by their cross-examination and are consistent with each other. In addition, the officers’ explanations are consistent with their actions. In the matter at hand, they never asked for Reddick’s phone number, even though that information was requested. [ 71 ] The fact that a Kia arrived on the site of the ongoing intervention is uncontested. The evidence shows that Dray, the driver of the Kia, got out of her car and walked towards the Jaguar while Maxwell got out of the Jaguar and walked towards Officers Plouffe’s and Hade’s patrol car.

Officers Plouffe and Hade explained why a call for backup was made at that point. Their testimonies on this subject were not adversely affected by their cross-examination, are plausible, are consistent with each other, and are consistent with the testimony of Officer Smith, who received the call for backup [90] . [ 72 ] Officer Servant testified that because he had little information about the ongoing intervention, he parked the patrol car to prevent the Kia from fleeing.

The Defence argued that Officer Servant’s decision in this regard is evidence that the police officers wanted to keep everyone on the scene of the intervention to gather information about Reddick. The Court disagrees. Officers’ Servant and Smith testified that they had little information about the ongoing intervention when they arrived on the scene of the intervention. Their testimonies on this subject were not adversely affected by their cross-examination, are consistent with each other, and are constant with the testimonies of Officers Plouffe and Hade [91] .

In addition to this, and as explained before, the Court concludes that the patrol car was not blocking the Kia from leaving, as there is no evidence that Officers Servant or Smith had to move the patrol car before the Kia left [92] . [ 73 ] The evidence shows that it was neither Officer Plouffe nor Officer Hade who took steps to identify the women in the Kia. Rather, it was Officer Servant, who upon arrival on the site of the intervention and before speaking to Officers Plouffe and Hade, decided to walk towards the Kia and identify the two women [93] .

His testimony on this subject was not adversely affected by his cross-examination and is consistent with Officer Smith’s testimony [94] . [ 74 ] The evidence establishes that Maxwell gave a false name to Officer Hade. Officers Plouffe and Hade explained the numerous steps that they took to properly identify Maxwell, why Maxwell was arrested and how their decision to tow and impound the Jaguar was taken. Officer Plouffe also explained that the search performed was an inventory search under the HSC .

Officers Plouffe’s and Hade’ explanations were not adversely affected by their cross-examination and are consistent with each other. In addition, their explanations take full meaning when considering the situation that they were facing.

Reddick had a learner’s licence; the person who was accompanying him did not have his driver’s licence; the officers had reasonable grounds to believe that the person accompanying Reddick had provided a false name; yet the officers were not able to identify the person; and, that person was now in custody. [ 75 ] What’s more, when they decided to tow the Jaguar, Officers Plouffe and Hade had obtained (or were in the process of obtaining) most of the information sought in Reddick’s IPPE, except for his phone number.

Having interacted with Reddick, they could provide a physical description, including what he was wearing. They had his address and, while they did not have the name of the person who was accompanying him, that person was in their custody.

In short, they did not need to perform an inventory search to provide most of the requested information to Officer Rioux. [ 76 ] Considering the evidence presented in this matter, the Court believes the explanation provided by Officers Plouffe and Hade regarding the decisions they made throughout their intervention with Reddick and Maxwell, including the decision to perform an inventory search of the Jaguar.

The Court holds that the search performed by Officer Plouffe was in fact an HSC inventory search, as opposed to a search to gather evidence or information on Reddick, as argued by the Defence [95] . [ 77 ] With that said, an additional issue must be addressed. Indeed, the evidence shows that on the day that Officers Plouffe and Hade stopped the Jaguar, Officers Bellavance and Sauvé were investigating Reddick.

Even if the Defence’s arguments concerning the existence of an oblique motive to perform the inventory search were limited to the request for information contained in Reddick’s IPPE, the Court has nevertheless considered the evidence to assess if it could support the argument that the search was performed to assist that other ongoing investigation. The answer to this question is no. As stated before, when Officers Plouffe and Hade took the decision to randomly stop the Jaguar, they did not know that Reddick was its driver, nor that Maxwell was the passenger.

In addition to this, the Court finds that the involvement of Officers Bellavance and Sauvé was limited to asking that Reddick be transported to the South Operational Center, where he would have been taken anyway, had they not made that request. Second sub-question: are inventory searches authorized by law and if so, is the law reasonable? [ 78 ] As explained before, the Court is of the opinion that the rationale of the Joseph , Benali , and Sinclair decisions is binding.

Police officers are authorized to perform an inventory search of a car when they are authorized to seize and/or impound a car pursuant to s. 209.1, s. 209.2 or s. 636.2 of the HSC . In such situations, an inventory search is authorized by law and the law that authorizes the search

is reasonable. Third sub-question: was the decision to perform an inventory search premature? [ 79 ] In the matter at hand, the Prosecution argued that the search of the Jaguar was authorized by s. 209.1 or by s. 636.2 of the HSC, while the Defence argued that the decision to perform an inventory search was premature, because it was performed before Officers Plouffe and Hade knew that Reddick had committed an offence under the HSC [96] . [ 80 ]

Section 99 of the HSC provides that a person who has a learner’s licence must be assisted by a person who has held, for at least two years, a valid driver’s licence.

Section 99 of the HSC also stipulates that the person who is assisting the driver must carry his driver’s licence with him. A driver who contravenes the obligations set out in s. 99 of the HSC is committing an offence pursuant to s. 140.1 of the HSC . This essentially means that the driver who has a learner’s licence is committing an offence pursuant to s. 140.1 of the HSC if the person who is accompanying him is not carrying his driver’s licence.

With that said, s. 636.2 of the HSC authorizes a police officer who has reasonable grounds to believe that an offence has been committed under the HSC to take possession of the car, drive it and impound it at the expense of the owner. [ 81 ] In the matter at hand, Officers Plouffe and Hade were made aware, as soon as they interacted with Reddick and Maxwell, that Reddick had a learner’s licence, and that Maxwell was not carrying his driver’s licence.

That first interaction was, objectively, enough to provide the officers with reasonable grounds to believe that Reddick had committed an offence pursuant to s. 140.1 of the HSC , as he was accompanied by someone who did not have his driver’s licence with him. This essentially means that objectively, Officers Plouffe and Hade had statutory authority to tow the Jaguar, pursuant to s. 636.2 of the HSC , from that moment. [ 82 ] Officers Plouffe and Hade did not immediately decide to tow the Jaguar.

Rather, they tried to identify Maxwell to verify if he had a driver’s licence but in the process of doing so, acquired reasonable grounds to believe that Maxwell had provided them with a false name and arrested Maxwell. It is only at this point that Officers Plouffe and Hade took the decision to use their HSC authority to tow the Jaguar. [ 83 ] Officer Plouffe explained the factual and legal basis for his decision to tow the Jaguar. Reddick had a learner’s permit and consequently could not drive without being accompanied by someone who has had a driver’s licence for two years.

Despite their investigations, they were not able to identify Maxwell and thus could not confirm that Reddick was accompanied by someone who had a driver’s licence, which had been valid for two years. This is where Reddick’s offence lies, in Officer Plouffe’s mind. And this is consistent with ss. 140.1 and 99 of the HSC . [ 84 ] Assessing whether reasonable grounds to believe that an offence was committed exists is a twofold query. First, the police officer must subjectively have reasonable grounds to believe that an offence was committed.

Second, the grounds invoked by the police officer must be justifiable from an objective point of view [97] . In the matter at hand, the Court holds that subjective and objective grounds to believe that Reddick had committed an offence pursuant to the HSC [98] existed, when Officer Plouffe made the decision to tow the Jaguar. [ 85 ] This means that Officer Plouffe’s decision to perform an inventory search of the Jaguar, when he did, was not premature.

As he had reasonable grounds to believe that Reddick had committed an offence under the HSC , Officer Plouffe had authority to take possession of the Jaguar and impound it, pursuant to s. 636.2 of the HSC . Consequently, he had the authority to perform an inventory search of the Jaguar [99] .

Fourth sub-question: was the inventory search carried out reasonably? [ 86 ] According to the Paulotte Saintelus and Sinclair decisions, police officers must, before performing an inventory search, comply with the applicable HSC provisions, including allowing the driver of the car the opportunity to retrieve his personal property pursuant to s. 209.6 of the HSC . Failure to do so will lead to a conclusion that the search was not reasonable.

The rationale of these decisions is binding upon the Court. [ 87 ] In the matter at hand, Officer Plouffe testified that he gave Reddick the opportunity to recover his personal property before performing the inventory search, an opportunity which Reddick took. Officer Servant testified that he gave the opportunity to Maxwell, who had been arrested, to recover his personal property, but Maxwell declined.

For the reasons explained before, the Court believes the officers’ testimony on this topic and thus finds that both Reddick and Maxwell were provided with the opportunity to recover their personal property, as provided for by s. 209.6 of the HSC . [ 88 ]

Section 636.2 of the HSC confers a discretionary power to police officers [100] . In deciding to use this power, police officers must act reasonably and pursue HSC legitimate concerns. In the matter at hand, the evidence shows that the Jaguar was stopped on a one-way street located north of the Highway 20 west entrance, where stopping is prohibited. There were no parking spaces, houses nor businesses on the side of the street where to easily move the car.

In that context, Officers Plouffe’s and Hade’s decision to tow the Jaguar was reasonable and pursued a legitimate HSC concern. [ 89 ] In its Application, the Defence argued that the police officers failed to explore if Reddick could contact another driver to accompany him to remove the Jaguar. In making this argument, the Defence specifically referred to the two women who were in the Kia [101] . This argument must be dismissed for two reasons. [ 90 ] First, the HSC provisions authorizing police officers to seize and/or impound a car create a complete scheme within which the

police officers must operate. Nothing in this scheme imposes upon police officers the obligation to explore alternatives to seizing or impounding of a car. In that regard, it is worth mentioning that the Defence has not identified any statutory nor common law authority to support the existence of such an obligation. Second, the argument raised by the Defence is hypothetical. The evidence shows that Dray, the Kia driver, was identified with her driver’s licence. However, her passenger was identified with her health insurance card, not with a driver’s licence.

Consequently, there is no evidence that the Kia passenger had a driver’s licence and that she could either have assisted Reddick in driving the Jaguar or driven the Kia. There is also no evidence that someone else was available to come and assist Reddick. [ 91 ] Considering the evidence presented in this matter, the Court finds that the inventory search performed by Officer Plouffe was carried out reasonably.

Conclusion [ 92 ] The Court finds that the search performed by Officer Plouffe was an inventory search; that the search was authorized by s. 636.2 of the HSC ; that s. 636.2 of the HSC is reasonable and that the search was carried out reasonably. The Prosecution has thus proven, on a balance of probabilities, that the search was reasonable. Consequently, the police did not violate Maxwell's and Reddick's rights to be secured against unreasonable search or seizure guaranteed by s. 8 of the Charter , when they performed the inventory search of the Jaguar. C.

Did the police violate Reddick’s right to retain and instruct counsel without delay by not allowing him to call his counsel until his arrival at the police station?

I) The relevant facts [ 93 ] After the firearm was found, Reddick, who was close to the Jaguar, was immediately handcuffed by Officers Servant [102] and Smith and arrested by Officer Plouffe for possession of a firearm. It was 8:36 a.m. Officer Plouffe informed Reddick of the reason for his arrest and of his rights, including his right to retain and instruct counsel without delay. When asked if he understood, Reddick said that he did.

At that moment, Reddick did not ask to speak to counsel. [ 94 ] Having been informed of the situation regarding the firearm, Officer Hade arrested Maxwell for possession of a firearm [103] . At that point, Maxwell was still in Officers Plouffe’s and Hade’s patrol car. Reddick was thus taken to Officers Smith’s and Servant’s patrol car, was summarily search and placed in the back of their patrol car. Officer Smith informed Reddick of his rights, reading the standardized card issued by the SPVM.

As Officers Smith and Servant were about to leave the scene of the intervention for the police station, Reddick stated that he wanted to speak to counsel [104] . It was approximately 8:52 a.m. [105] [ 95 ] Officers Smith and Servant left the site of the intervention, with Reddick who was still handcuffed. During transport, the officers did not ask questions to Reddick. They arrived at the South Operational Center 14 minutes later, at 9:06 a.m. They had to wait a few minutes before entering the garage as another car was already in it [106] .

Officer Smith explained that they did not remove Reddick's handcuffs while they were waiting to enter the garage for their safety.

More specifically, as Reddick had been arrested for possession of a firearm, they decided to wait upon the completion of the booking procedure, which includes both a pat-down search and a search with a metal detector, before removing Reddick’s handcuffs. [ 96 ] Once inside the operational center, Reddick went through the booking procedure: his handcuffs were removed; he was searched (a pat-down search and a search with a metal detector were performed); and his personal property was inventoried. As soon as the booking procedure was completed, Reddick spoke to counsel. It was 9:21 a.m.

At that point, approximately 29 minutes had elapsed since Reddick had asked to speak with counsel. II) The governing principles [ 97 ]

Section 10b) of the Charter provides that everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right. [ 98 ] The right to retain and instruct counsel and to be advised thereof aims at ensuring that a person, who is under the control of the state and in a situation of legal jeopardy, be informed of his rights and obligations under the law and obtain legal advice on how to exercise those rights [107] .

This opportunity to speak to counsel is important as a person who is under the control of the state is in a position of disadvantage relative to the state. That person is deprived of his liberty and may be at risk of incriminating himself [108] . In practice, the right provides for by s. 10b) of the Charter guards against the risk of involuntary self-incrimination [109] .

Indeed, access to legal advice allows a person who is under the control of the state to be made aware of his rights and to make a choice to speak or not to speak to police that is both free and informed [110] . [ 99 ] The right to retain and instruct counsel and to be advised thereof imposes duties on police, upon arrest or detention of a person. First, police officers have the duty to inform the person of his right to retain and instruct counsel without delay.

Second, if the person has expressed a desire to exercise this right, police officers have the duty to provide the person with a reasonable opportunity to exercise this right. Third, police officers have the duty to refrain from eliciting evidence from the person until he has had a reasonable opportunity to exercise his right [111] . [ 100 ] The duty to inform the person of his right to counsel arises immediately upon arrest or detention, while the duty to facilitate access to a lawyer arises immediately upon the person’s request to speak to counsel.

From that point on, the police officers have a constitutional obligation to facilitate the requested access to counsel at the first reasonable opportunity [112] . This means that police officers have a duty to provide phone access to the person under their control at the first available occasion [113] . [ 101 ] The duty of police officers to facilitate access to counsel can, however, be delayed by safety concerns [114] . Those concerns must be “circumstantially concrete” and rooted in the facts of the case. General or theoretical concerns are not sufficient.

Otherwise said, police officers cannot simply delay access to counsel based on general concerns, on assumptions or on hypothesis [115] . Thus, the assessment of whether a delay or suspension of the right to counsel is justified is a factual inquiry [116] . The Prosecution bears the

burden to show, on a balance of probabilities, that a given delay was reasonable in the circumstances of the case [117] . [ 102 ] As explained above, the right to retain and instruct counsel and to be informed thereof is triggered by detention. A person is detained where he “submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist” [118] . The concept of detention refers to a suspension of the person’s liberty interest by a significant physical or psychological restraint [119] . Not every encounter with police officers give rise to a detention.

A simple chat between a consensual citizen and a police officer will more than likely not amount to detention. However, if consent and conversation are replaced by coercion and interrogation, detention may occur [120] .

This definition of “detention” is consistent with the need for protection of a person who is under the control of the sate and ties in with the protection offered by s. 10 of the Charter . [ 103 ] With that said, it is important to underline that in many cases, an interception pursuant to the HSC may result in detention, pursuant to s. 9 of the Charter , but may not trigger the right to retain and instruct counsel and be advised thereof provided by s. 10b) of the Charter [121] .

III) The answer to the third question [ 104 ] Reddick’s detention began at 7:40 a.m., when the Jaguar was randomly stopped by Officers Plouffe and Hade pursuant to s. 636 of the HSC . That stop resulted in a detention, pursuant to s. 9 of the Charter . However, this detention did not trigger the right to retain and instruct counsel and to be advised thereof, guaranteed by s. 10b) of the Charter , given its nature, an HSC stop. [ 105 ] When they were stopped, Reddick and Maxwell well calm and cooperative. They remained in the Jaguar while officers Plouffe and Hade returned to their patrol car.

As previously explained, the Court dismissed the Defence’s argument that the nature of the police intervention changed when Officers Plouffe and Hade saw Reddick’s IPPE. The evidence rather shows that Reddick and Maxwell’s detention continued to be within the purview of the HSC while Officers Plouffe and Hade were verifying the information obtained from both Reddick and Maxwell.

The fact that Officers Plouffe and Hade called for backup after the arrival of the Kia and the arrival of Officers Smith and Servant did not change the nature of Reddick’s and Maxwell’s detention. [ 106 ] The nature of Maxwell’s detention changed when he was arrested for obstructing a police officer. The arrest triggered Maxwell’s right to retain and instruct counsel and to be advised thereof, guaranteed by s. 10b) of the Charter . The evidence shows that Maxwell was advised of his right upon arrest.

He was placed in the back of the patrol car without being handcuffed because he had been calm and cooperative and was provided with the opportunity to call counsel. [ 107 ] The nature of Reddick’s detention did not change when Maxwell was arrested, when Officers Plouffe and Hade decided to tow the Jaguar, nor when Officer Plouffe began his inventory search of the Jaguar. Throughout that time, Reddick was still detained under the purview of the HSC . [ 108 ] The nature of Reddick’s detention changed at 8:36 a.m. when he was arrested for possession of a firearm.

His arrest triggered his right to retain and instruct counsel and to be advised thereof, guaranteed by s. 10b) of the Charter . The evidence shows that Reddick was informed of his right to retain and instruct counsel immediately upon arrest and that he did not request to speak with counsel at that time. He asked to speak to counsel at approximately 8:52 a.m. when Officers Smith and Servant were about to leave the site of the intervention for the South Operational Center. This is when the police officers’ duty to facilitate Reddick’s access to counsel as soon as practicable was triggered.

The evidence, however, shows that Reddick was unable to speak to counsel for 29 minutes, until 9:21 a.m. The question at issue is whether this delay is reasonable in the circumstances of this case. [ 109 ] The evidence shows that the discovery of the firearm changed the safety measures taken by the police officers involved in this intervention. Indeed, while Reddick could not leave the scene of the interception, he was free to move around before the discovery of the firearm. As for Maxwell, he was also free to move around, until his arrest.

When he was arrested, he was placed in the back of the police car without being handcuffed. He was given his cell phone when he expressed the wish to speak to counsel. The situation changed after the discovery of the firearm. Reddick and Maxwell were handcuffed, were placed in the back of the police car and were not uncuffed until the end of the booking procedure, which included more thorough searches.

On this topic, it is useful to underline that Officer Smith explained that he and Officer Servant decided not to remove Reddick’s handcuffs when they were waiting to enter the garage of the South Operational Center, for safety reasons. [ 110 ] The evidence shows that the discovery of a loaded prohibited weapon in the Jaguar gave rise to security concerns for the police officers involved.

This is, in the Court’s opinion, a concrete circumstance that justified delaying Reddick’s access to counsel for 29 minutes to allow for transport to the South Operational Center and for the completion of the booking procedure, which included more thorough searches. Thus, the Court concludes that the Prosecution has shown, on the balance of probabilities, that the delay of 29 minutes for Reddick to speak with counsel is reasonable in the specific circumstances of this case. Reddick’s right to retain and instruct counsel and be advised thereof provided by s. 10b) of the Charter was not violated. D.

If the Court concludes that the police violated Reddick’s and/or Maxwell’s constitutional right(s), should the firearm be excluded from the evidence admissible at trial? [ 111 ] It is not necessary to decide this question, as the Court found that neither Reddick’s nor Maxwell’s rights were violated. [ 112 ] However, and as previously explained, if the Luamba decision had not been appealed, the Court would have found that the random stop of the Jaguar, pursuant to the HSC, violated Reddick’s and Maxwell’s rights not to be arbitrary detained guaranteed by s. 9 of the Charter .

In that scenario, the Court would have had to decide if the firearm should be excluded from the evidence admissible at trial. FOR THESE REASONS, THE COURT: [ 113 ] DISMISSES the Defence Amended Application.

__________________________________ MÉLANIE HÉBERT, J.C.Q. Me Jean-Philippe MacKay Director of Criminal and Penal Prosecutions For the Prosecution Me Jordan Trevick Me Clara Daviault For the accused Darryl Reddick Me Patrick Davis For the accused Clifton Maxwell Hearing dates : March 9 and 10, August 25, 26, 29, and November 10, 2022. APPENDIX 1 The Canadian Charter of Rights and Freedoms 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society 7.

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; and (

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. 15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 24.

(2) 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. The Constitution Act, 1982 52.

(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. The Highway Safety Code 99. The holder of a learner’s licence must, when driving a road vehicle other than a moped or a motorcycle, be assisted by a person who has held, for at least two years, a valid driver’s licence of the appropriate class for driving that vehicle. The person must be seated beside the holder of the learner’s licence, and be in a position to give him assistance and advice.

The person assisting the holder of the learner’s licence must carry his driver’s licence with him, which must contain, where applicable, the particulars prescribed by regulation (…) 102. Every person referred to in sections 97, 99 and 100 must surrender his licence for inspection at the request of a peace officer. 139. Every person who contravenes the first paragraph of

section 102 or fails to comply with a condition attached to the person’s licence under

section 98, other than the operation of a road vehicle mandatorily equipped with an alcohol ignition interlock device or the

conditions for its use, is liable to a fine of $100 to $200 (…) 140.1 A driver who contravenes

section 99, a regulatory provision made under the fifth paragraph of

section 99 or

section 100 is guilty of an offence and is liable to a fine of $200 to $300. 209.1. A peace officer who has reasonable cause to believe that a person is driving a road vehicle without being the holder of a licence prescribed by

section 65 may, at the owner’s expense and on behalf of the Société, immediately seize the vehicle and impound it for a period of 30 days (…) 209.2 A peace officer who believes on reasonable grounds that the driver of a road vehicle is under a sanction within the meaning of

section 106.1 that relates to the driving of a vehicle of the particular class being driven may, at the owner’s expense and on behalf of the Société, immediately seize and impound the vehicle for a period of 30 days (...) 209.6. The owner or driver of a road vehicle seized may recover any personal property present in the vehicle except a radar warning device or personal property attached to or incorporated into the vehicle or used in connection with the operation of the vehicle. 636. Every peace officer recognizable as such at first sight may, in the performance of his duties under this Code , agreements entered into under

section 519.65 and the Act re

[…]