R. v. Gayle, 2015 ONCJ 575

Citation: R. v. Gayle , 2015 ONCJ 575 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- KEVON GAYLE REASONS FOR JUDGMENT Duncan J. 1 . The defendant is charged with possession of marijuana and possession of cocaine, offence date May 23 2014. The substances were found in his pockets during a pat down search following his being stopped for certain HTA offences committed while operating a scooter or bicycle. 2 . The case has been defended solely on Charter grounds. It is alleged that the brief (5 minute) encounter between the defendant and the police discloses infringement of the defendant’s rights under sections 8, 9, 10(

a) and 10(b). The trial proceeded on a blended basis. Two police officers testified for the Crown. The defence called no evidence on the Charter application or trial. Facts: 3 . At around 7 pm on May 23 2014, police officers Perrault and Wallbank were together on pay duty engaged in STEP – Strategic Targeted Enforcement Policing – within the street crime unit of the Peel Regional Police. Their specific tasks included to “target complaint areas” and “do compliance checks on people with conditions”. This was described as a policing initiative dating from 2007 that replicates the TAVIS program in Toronto. 4 .

The two officers were together in an unmarked police car. They drove to the rear of St. Augustine high school located at the intersection of Lockwood and Drinkwater, a residential neighbourhood. After seeing nothing happening at the rear of the school they drove to the front to exit from the parking lot. At that point they saw the defendant on an electric scooter or bicycle [1] drive through a stop sign at the intersection. He was not wearing a helmet. After crossing the intersection he drove onto the opposite side of the street, close to the curb, for a short distance.

5. PC Perrault recognized the defendant. He had dealt with him on one occasion about 5 years earlier while working as a schoolofficer at St. Augustine[2]. He was also aware that the defendant had recently been charged with a gunpoint robbery and was on bail. Hementioned that to Wallbank and activated lights and siren, stopping the defendant. 6. Perrault approached the defendant on foot and started talking to him about his driving.

The defendant was not making eye contactand was giving brief one word answers – which to Perrault raised the concern that the defendant’s mind was elsewhere, possiblythinking of fleeing or fighting or that he was going to be arrested because he knew he was doing something illegal. He started to questionthe defendant about bail conditions that he was on. Wallbank asked the defendant for his full name and birthdate so he could run a checkon him for bail conditions. 7.

Perrault said that while this encounter was going on, the defendant put his hands in the pockets of his pants and hoodie andrepeatedly did so contrary to the officer’s cautions. He said at this point he told the defendant that he was under investigative detention(but see para 9 below), though he did not say what for. Having regard to the defendant’s actions and his history, Perrault decided to do asafety pat down search. He added that he also smelled fresh marijuana on first approaching the defendant though that played no

part inhis actions or thinking. (Wallbank did not mention having noticed any smell). Perrault patted the defendant’s waist area and felt what hebelieved was a plastic baggie partly full of air. He believed that it was drugs as in his experience that is a common place for people toconceal marijuana. He considered that he had reasonable and probable grounds and arrested the defendant for possession of narcotics,lifted his shirt and pulled out the bag - which turned out to contain about an ounce of marijuana. A further search incident to arrestrevealed several small baggies of cocaine in his jeans key pocket. 8.

The defendant was arrested and taken into custody. He was later issued traffic tickets at the police station. He was held for a bailhearing. 9. One final point should be noted re the above

summary: Perrault’s notes suggest that the defendant was told that he was underinvestigative detention very near the beginning of their interaction. He explained that he had omitted that from his notes when he firstmade them and added it on seeing the omission. He testified that he inserted it near the beginning because there was a space in which todo so, even though the event came later in the chronology. However it was pointed out that there was also a space in what would havebeen the right chronological place for the note. For this reason I find his explanation difficult to accept.

I find that the notes moreaccurately reflect when the investigative detention was announced – at the beginning of the encounter. Analysis: 10. The Supreme Court has said that these encounters require the courts to proceed step by step through the interaction from the initialstop onwards to determine whether the police stayed within their authority: [3] Close and careful analysis is important because:[4] The vibrancy of a democracy is apparent by how wisely [the court] navigates through those critical junctures where state actionintersects with, and threatens to impinge upon, individual liberties.

Step #1 – The Stop: 11. There is no doubt that the defendant apparently committed one or more HTA infractions witnessed by the officers and they wereentitled to stop him: s 216 HTA (mv) or s. 218 (bike). It is also apparent that the police had another purpose in stopping him – to see if hewas complying with bail conditions. There is no statutory provision or common law rule allowing the police to stop and detain a person –driver or pedestrian – to carry out such an investigation. 12. In these situations, the law is quite clear – such dual purpose stops are legal.

Where a stop is made pursuant to legal authority, theexistence of a secondary investigative purpose does not affect the legality of the stop and detention, provided that purpose is notimproper: Brown v Durham Police Force (1998) (ON CA), 131 CCC3d 1 (Ont CA). This principle was affirmed bythe Supreme Court of Canada in R v Nolet 2010 SCC 24 , [2010] 1 SCR 851 with the Court adding that it was not appropriate orhelpful to attempt to measure and identify which purpose was dominant and which was subordinate.

13. But there is a caveat: the use of the legal stopping authority (usually HTA) cannot be a mere pretext or ruse employed in order tofurther the other investigative purpose. In Brown supra, Doherty JA said: The appellants argued at trial and on appeal that highway safety concerns were a ruse used by the police to justify the stopping of theappellants, their friends and associates. Had this argument been accepted, s. 216(1) of the H.T.A. could provide no lawful authority forthe stops and detentions: R. v. Dedman, (SCC), [1985] 2 S.C.R. 2 at p. 31, 20 C.C.C. (3d) 97; R. v.

Zammit (1993), (ON CA), 13 O.R. (3d) 76, 15 C.R.R. (2d) 17 (C.A.). (Underlining added) 14. In R v Humphrey 2011 ONSC 3024 , [2011] OJ 2412 (Ont Sup Crt) Code J cited the above passage and went on to observethat since it did not matter which purpose was dominant and which was subordinate (Nolet) it would follow that a stop could beconsidered a pretext only if it could be shown that the sole purpose of the stop was to further the other criminal investigation and thatthere was no intention at all to investigate or pursue the HTA offence. (para 98).

It must be said that if this is a correct statement of thelaw, (and it certainly seems to follow logically from Nolet) then there is very little protection against mis-use by police of HTA stoppingauthority – something the Supreme Court of Canada has repeatedly cautioned against. 15. Many cases demonstrate the wide tolerance afforded the police in these situations. In addition to Brown and Humphrey see forexample: R v Johnson [2013] OJ 1380 (CA); R v Morris [2011] OJ 3994 (Sup Crt). 16. A pre-text is not something that is false - at least not necessarily so.

It is an “ostensible or alleged reason or intention” (ConciseOxford Dictionary) or “a reason that you give to hide your real reason for doing something” (Merriam-Webster Dictionary). Being anexploration into secret motivation or intention, the determination of the question of pretext is difficult – so much so that the Americanshave decided that “the catch is not worth the trouble of the hunt”[5] and have abandoned the attempt altogether. The Supreme Court hasdeclared that police motivation and pretext in relation to stopping is irrelevant.

Instead they now focus exclusively on what the officerdid after the stopping in relation to their Fourth Amendment right against unreasonable search and seizure.[6] 17. But the question of pretext is part of Canadian law, as per above, and must be considered. The pretext issue is present both in casesof random (groundless) stops, such as Brown and Nolet and reactive stops where the witnessing of a minor offence is stated to be thereason for the stop, as in Humphrey supra; see also R v Calderon (ON CA), [2004] OJ 3474 (CA). 18.

Insight into the question of pretext can be gained by examination of what occurs after the stop. Did the HTA concerns continue tomanifest themselves throughout the detention concurrently with the other investigation, as in Brown and Nolet or was the HTAinvestigation non-existent or almost immediately abandoned? If the latter, was the change in focus due to information acquired orobservations made after the stop, as in Humphrey or was it an investigative interest from the outset pursued without ever acquiringgrounds that would have authorized it? 19.

In this case, on stopping the defendant, the focus and questioning immediately or almost immediately turned to the outstandingcharge and bail. A police computer check was run in regard to bail conditions only. There was no evidence that any check was made reHTA matters. An HTA investigation did not run concurrently with the investigation re compliance with bail conditions – at best itreappeared much later at the station when tickets were issued. Nothing new had arisen that would have triggered and justified a changein focus away from HTA to another investigative interest. 20.

In addition, I am sceptical of the officers’ sudden interest in traffic enforcement when their assigned duties were quite different andspecifically included “compliance checks for bail”. While no doubt a serious traffic infraction would merit their attention, that was notthe case here – a young man on a bike or scooter not stopping at an all-way stop sign in a residential neighbourhood with no other trafficaround. Please. 21.

Having regard to these circumstances, I am satisfied on a balance of probabilities that the minor traffic violation witnessed was amere pretext to investigate the defendant for possible non-compliance with bail conditions and possibly other speculatively suspectedwrongdoing. The stop therefore amounted to arbitrary detention. Step #2: The detention: 22. If I am wrong in the above conclusion, I will go on to analyze the ensuing aspects of the encounter on the assumption that the stop

itself was lawful. 23. Unlike cases of pedestrian encounters such as Grant, where the question of “detention” can be nuanced and difficult, there is noquestion that the stopping of the defendant’s vehicle amounted to a detention within the meaning of sections 9 and 10: R v Orbanski2005 SCC 37 , [2005] 2 SCR 3. 24. After lawfully stopping a vehicle for highway traffic purposes, the police may detain the individual for a reasonable length of timeto carry out their investigation.

But that investigation must be related to the purpose for the lawful stop, that is, traffic safety purposes: Rv Ladouceur (SCC), [1990]1 SCR 1257 ; R v Mellinthin (SCC), [1992] 3 SCR 615. This limitationapplies to both random (groundless) stops and reactive stops in response to an offence: R v Rutten (2006) 2006 SKCA 17 , 205CCC 3d 504 (Sask CA); R v R v Acciavatti [1993] OJ No 604 (CA). 25. I think PC Perrault recognized this limitation and immediately or almost immediately told the defendant that he was underinvestigative detention.

He did not say what for (a violation of 10a) but I think it is apparent - and I find - that it was to check forcompliance with bail conditions.

However, this did not provide a proper basis for a lawful investigative detention which must bepredicated on a reasonably based suspicion that the detainee is implicated in or connected to a recent or ongoing crime: R v Mann 2004 SCC 52 , [2004] 3 SCR 59; see also R v Moulton(2015) 2015 ONSC 1047 , 19 CR 7th 112 (Ont Sup Crt Fairburn J)where, in another case involving Peel STEP policing, the accused were stopped in a motel hallway, detained and run on CPIC to see ifthey were bound by any conditions they might be breaching.

The Court found (para 84) that there was no valid investigative detentionbecause “There was no crime reported and none being investigated”. Similarly in this case I find that Cst. Perrault had no legal basis toput the defendant in investigative detention for a speculative bail compliance check. 26. Was the detention nevertheless permissible as flowing from the lawful HTA stop? I think it might have been if there was anyindication that the police were continuing pursuit of an HTA purpose in their inquiries. But, as per paragraph 19 above, they were not.

Inmost cases where CPIC and local police checks are made on drivers, the inquiry includes check of licence status and other HTA mattersand information re outstanding warrants, cautions and bail conditions are part of the information that is retrieved. Here the check wassolely as to bail conditions. There was no concurrent or continuing[7] pursuit of the lawful HTA purpose. The fact that they came back tothe HTA when they issued tickets at the station does not validate what in my view was or had become the single-purpose unauthorizeddetention.

It was an unauthorized detention and investigation bookended by, but not connected to, an HTA stop and ticketing. 27. In

summary, even if the stop itself was lawful, in my view the defendant was soon thereafter unlawfully and hence arbitrarilydetained. 10(

a) Reason for detention: 28. As noted above, Cst Perrault told the defendant that he was under investigative detention but did not give a reason. Crown counselargues that the omission was a minor matter that made no difference to the defendant who was soon arrested for a different reason. 29. I cannot agree. The reason for detention is important. It makes the officer think about and articulate the reason for his actions. Itassists the court in determining the basis upon which police actions were taken and avoids fluidity in justification.

Most importantly, itassists the detainee in appreciating his legal position for the purpose of exercising his right to counsel and, possibly, in taking appropriateaction himself. In theory, if the defendant was fully conversant with the law[8] and was told that he was being detained for a bailcompliance check, he could have responded that there was no authority to do so - and be on his way. 30. The breach of 10(

a) was not insignificant. 10(b): Right to counsel: 31. The defendant’s right to counsel and right to be so informed arose immediately upon his being subjected to investigative detention:R. v. Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1 (S.C.C.) and R. v. Suberu (2009), 2009 SCC 33 , 245 C.C.C. (3d)112 (S.C.C.). While acknowledging this statement of the law, I have difficulty understanding how this can work as a practical matter. Forexample, suppose Grant had been read his 10b rights and wanted to exercise them. Would he be given a cell phone and allowed to go

behind the bushes to call and speak to counsel? Would he be taken to the police station to make the call and be patted down beforetransport (at which time the gun would be discovered)? What about duty counsel and interpreter situations? What is supposed to happenwhile waiting for call-back? Nevertheless, the Court specifically declined to recognize a general

section 1 reasonable limitation on 10b in the investigative detentioncontext. Accordingly, non-compliance with 10b in these situations constitutes an infringement: see R v Moulton supra. 32. There is however an exception for detentions made for traffic purposes – recognized by the Supreme Court of Canada in the breathtesting context and by the Court of Appeal in relation to roadside detentions for lawful traffic investigations in general: see

summary ofthe law in R v Humphrey supra pars 105 – 111 where this exception was applied in a dual purpose stop situation. Whether this exceptionapplies here depends on whether it was a lawful traffic stop and detention. I have found that it was not and therefore there was a 10bviolation. But if I am wrong in that then the exception would apply. 33. In

summary, on the basis of the finding that the stop and detention were unlawful, there was also a violation of

section 10(b). Step #3: The search: 34. If the detention was unlawful, the search conducted as an adjunct to that detention would also be unlawful: R v Moulton supra.However, again, if I am wrong in my conclusion about the detention, the search must still be assessed. 35. A lawful investigative detention does not necessarily provide authority to search.

However a pat down search for officer safetymay be performed if there are reasonable grounds to believe that public or officer safety is at risk and that a search is reasonablynecessary in the circumstances: R v MacDonald 2014 SCC 3 , [2014] 1 S.C.R. 37; R v Mann supra. 36. In this case I think the circumstances provided the necessary reasonable grounds – the defendant’s history of weapon possessionplus his repeated failure to keep his hands out of his pockets – to justify a safety concern. I have some question as to whether it wasnecessary given the fact that there were two officers present.

However, the second officer was some distance away and was notcompletely attentive to what was going on between Perrault and the defendant. I am satisfied that the conditions for a pat down safetysearch were met, if the detention was lawful. 37. But I am not satisfied that the search was in fact a pat down search for weapons.

Rather than immediately pat down and search thedefendant’s pockets – where suspicion that weapons may be secreted was focused – Perrault’s evidence was that he directed his search atthe defendant’s belt line and into the front of his pants where he felt the soft, partially inflated zip lock bag which, in his experience,meant drugs. Perrault had said that he had smelled marijuana when first in the defendant’s company but maintained that that played norole in his detention and search.

However the way the search was carried out suggests to me that it was a search to confirm thesuspected possession of marijuana and not a safety search.[9] It therefore was not authorized as a proper search adjunct to aninvestigative detention. It is unnecessary to determine whether the circumstances would have permitted a search for marijuana since theofficer did not purport to search on that basis. 38.

My conclusion is that, even if the investigative detention was lawful and the conditions for a pat down search were satisfied, I amnot satisfied that the search was carried out for that purpose and accordingly it remained a warrantless search, not authorized by law andtherefore unreasonable, contrary to

section 8. 24(2): Exclusion of evidence: 39. The Grant framework for analysis of 24(2) is well known and need not be repeated here. It should be emphasized that it is the longterm interests of the administration of justice that is the focus. 40. As mentioned at the outset of this judgment, the Supreme Court has attempted to strike a balance between the interests of lawenforcement and civil liberties and has emphasized that the maintenance of that balance in these encounters is crucial to a vibrantdemocracy. It has ceded wide powers to the police but has cautioned against their mis-use for other purposes.

Viewed in this light, thepolice conduct is serious and its impact on the Charter protected rights of citizens is significant.

41 . Society’s interest in adjudication on the merits almost always favours inclusion. However in this case we are dealing with two non- violent

summary conviction offences so it cannot be said that the societal interest is particularly high. 42 . I am satisfied that the balance in this case requires exclusion of the evidence. 43 . The charges are dismissed. October 9 2015 B Duncan J M Park for the Crown B Goldman for the defendant [6] After sixty years of litigation about pretext stops and arrests, the U.S.S.C. settled the matter in 1996 in Whren v United States 517 U,S. 806. The Court held that police motive and pretext are irrelevant. The only question is whether the officer had legal authority to stop.

The witnessing of a minor traffic infraction would suffice. It should be noted however that Whren was a case where drugs were seen in plain view on the passenger’s lap following a traffic stop for a minor offence. The case in no way provides authority for police to interrogate or search for evidence of other criminal activity pursuant to a traffic stop.. Lafave:Search and Seizure: A treatise on the 4 th Amendment 3rd edition 1(4)(e), 7(5)(

d) and see comment on W hren in Illinois Bar Review – 85 ILL.B.J. 488 ( Google “Whren” and “pretext”).