r v. Jahvon, 2019 QCCQ 7554

R. c. Collins 2019 QCCQ 7554 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division Nos: 500-01-191446-191 500-01-191447-199 500-01-191448-197 DATE: NOVEMBER 15, 2019 ______________________________________________________________________ BY THE HONOURABLE MÉLANIE HÉBERT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

Jahvon COLLINS Accused ______________________________________________________________________ DECISION ON THE MOTION TO EXCLUDE [1] ______________________________________________________________________ INTRODUCTION [ 1 ] On June 28, 2019, Jahvon Collins was travelling in a car with three other people. He was sitting in the backseat with Mr. Birod. Neither man was wearing his seatbelt. The car in which they were travelling was intercepted by the police for a Highway Safety Code violation. [ 2 ] After advising Mr.

Collins of the reason for the interception, Officer Paquette asked him to provide proof of his identification. Mr. Collins complied. A search in the police database revealed that an arrest warrant was pending against Mr. Collins. [ 3 ] Officer Paquette went back to the car to arrest Mr. Collins. In the course of the arrest, Officer Paquette seized a fanny pack that belonged to Mr. Collins in which he found a gun and ammunition. [ 4 ] Mr. Collins now stands trial for various charges relating to possession of the restricted weapon in three different files.

He has filed a Motion in which he alleges violations of two of his constitutional rights. [ 5 ] First, he argues that Officer Paquette breached his right to be informed promptly of the reason for his arrest guaranteed by

section 10 (

a) of the Canadian Charter of Rights and Freedoms . Second, he argues that his right to be secure against unreasonable search or seizure guaranteed by

section 8 of the Charter was also breached because the search of his fanny pack was illegal. He therefore asks the Court to exclude the evidence obtained as a result of these violations, including the gun. [ 6 ] For the reasons set out below, the Court finds that Mr. Collins’ constitutional rights were not breached and thus, dismisses his Motion to exclude the evidence.

CONTEXT The testimony of the police officers [ 7 ] On June 28, 2019, at approximately 7:50 a.m., Officers Samaras and Paquette were in a patrol car on Côte des Neiges Boulevard. [ 8 ] Officer Samaras, who was driving the patrol car, came across a Dodge Charger registered in Ontario. He noticed that the backseat passenger was not wearing his seatbelt. He also had the impression that the other backseat passenger was not wearing his seatbelt but he could not tell for sure. [ 9 ] Officer Samaras turned the patrol car around and eventually caught up with the Dodge Charger. At a red light, he got out of the

patrol car, walked toward the Dodge Charger and confirmed that neither of the backseat passengers were wearing their seatbelts. He advised one of the backseat passengers, a man who would later be identified as Mr. Collins, of the Highway Safety Code violation and asked the driver to turn left and pull over. [ 10 ] The driver of the Dodge Charger complied. She turned left and pulled over.

For both Officer Samaras and Paquette, this was a standard Highway Safety Code stop. [ 11 ] Officer Samaras went up to the backseat passenger who was sitting behind the driver and told him that he was being stopped because he was not wearing his seatbelt. He asked him to identify himself and asked the driver for her licence, the car’s registration and, given that this was a rental car, the copy of the rental agreement. He probably also asked her to stop the car’s engine.

The driver provided her license and the car’s registration but did not have a copy of the rental agreement. [ 12 ] The backseat passenger told Officer Samaras that he did not have identification papers on him. Officer Samaras asked him to get out of the car. At trial, Officer Samaras explained that this is a procedure that he follows when someone does not have proper identification papers. Separating the person from the others in the car allows him to obtain information from the person and then verify that information with the others.

In short, his goal is to get proper confirmation of the person’s identity. [ 13 ] The backseat passenger did not immediately comply with Officer Samaras’ request. Instead, he called a lawyer on his cell phone. He eventually complied and provided information that would later allow Officer Samaras to confirm his identify in the police database. The backseat passenger’s name was Mr. Birod. [ 14 ] While Officer Samaras was dealing with the driver and Mr. Birod, Officer Paquette dealt with the people who were sitting on the passenger side of the car. Officer Paquette went up to Mr.

Collins, who was sitting in the back seat, told him that he was being stopped because he was not wearing his seatbelt and asked for proper identification. Mr. Collins, who was wearing a fanny pack across his chest, took his health insurance card out of the front pocket of the fanny pack and gave it to Officer Paquette. At that point, Mr. Collins was cooperative. Officer Paquette looked at the card and told Mr. Collins that his name rang a bell. Mr.

Collins replied that he did not know him. [ 15 ] Officer Paquette then walked up to the man who was sitting in the front seat and asked him for information for identification purposes. The man refused and Officer Paquette did not insist. Officer Paquette walked back toward the patrol car and saw that Officer Samaras was in discussion with Mr. Birod. Mr. Birod is tall, approximately 6 foot 3 inches, and weighs approximately 200 pounds. Officer Paquette observed that Mr.

Birod looked unhappy; his shoulders were hunched and he moved his hands as he spoke. [ 16 ] Officer Samaras told Officer Paquette what had happened with Mr. Birod. He said that Mr. Birod had called a lawyer and described the situation as tensed. Both officers went back to the patrol car to verify the information obtained. In the process, they were able to confirm the identity of Mr. Birod. They learned that both Mr. Birod and Mr. Collins had prior convictions. In addition to this, Mr.

Collins had an outstanding warrant for his arrest, issued in Gatineau, in relation to a charge of obstructing a police officer. [ 17 ] Both officers walked back to the Dodge Charger. Officer Samaras went toward the driver’s door, while Officer Paquette went to the rear passenger’s door. [ 18 ] When Officer Paquette got close to the rear passenger’s door, he noticed that the window, which was open when he intervened earlier, was almost closed, with an opening of approximately 2 inches. Officer Paquette asked Mr. Collins to get out of the car and Mr. Collins refused. Officer Paquette asked again, telling Mr.

Collins that he wanted to speak with him in private. Mr. Collins again refused to get out of the car or even to lower his window. [ 19 ] At trial, when asked why he did not immediately tell Mr. Collins that he had an outstanding warrant for his arrest, Officer Paquette testified that he did not want to tell him in front of the other passengers as this only concerned him. In short, he wanted Mr. Collins to step out of the car so that he could tell him in private. That being said, Officer Paquette also explained that he wanted to proceed to Mr. Collins’ arrest outside of the car for safety reasons.

At that point in the intervention, the officers did not have control over the car and thus, he did not want the driver to just speed away. [ 20 ] Given Mr. Collins’ refusal to get out of the car, Officer Paquette told him that he had an outstanding warrant for his arrest and thus, that he wanted to proceed to his arrest. Mr. Collins replied that it was impossible. Officer Paquette tried to open the car door but it was locked. He asked Mr. Collins to open the door; Mr. Collins did not comply. [ 21 ] At trial, when he was asked if he told Mr.

Collins that the outstanding warrant was issued in Gatineau and was in relation to a charge of obstructing a police officer, Officer Paquette answered that he thought he provided Mr. Collins with all the information he had concerning the warrant. [ 22 ] The atmosphere in the Dodge Charger was becoming increasingly strained as the intervention progressed. It was a tense situation and the people in the car were getting louder, and even yelling. At trial, Officer Paquette explained that it was important that the intervention be done quickly for safety purposes.

Officers Samaras and Paquette were outnumbered and they did not have control over the car. The more the intervention dragged on, the more risks they were facing. [ 23 ] While this was occurring, Officer Samaras was standing beside the window of the driver. Realizing that the doors were locked, Officer Samaras asked the driver to unlock the doors. She did not comply even though Officer Samaras was convinced that she understood his request. As the window was open, he reached into the car and unlocked the doors. [ 24 ] Officer Paquette opened Mr. Collins’ door and asked him to get out. Mr. Collins refused.

Officer Paquette grabbed Mr. Collins’ right arm to force him out of the car. Mr. Collins’ right hand was on his fanny pack, which was pressed against his chest. He was offering what Officer Paquette described as a passive resistance: while Officer Paquette was pulling to get him out of the car, Mr. Collins was pulling the other way.

[ 25 ] The tension in the car rose further and Officer Paquette called for backup on his radio. The passenger in the front seat, who had refused to identify himself, opened the door and put a foot on the ground, as if he wanted to get out of the car. By that time, Officer Samaras had moved from the driver’s side to the passenger’s side to assist his partner. Officer Samaras ordered the front seat passenger to stay in the car. The front passenger opened the door a second time and Officer Samaras again ordered him to remain in the car.

Officer Paquette heard his partner yelling the order while he was dealing with Mr. Collins. [ 26 ] While Officer Paquette was still pulling on Mr. Collins to get him out of the car, Mr. Collins tried to remove his fanny pack from his left shoulder using his left arm. Asked if they remember Mr. Collins saying that he would get out of the car if he could leave his fanny pack behind, Officers Samaras and Paquette answered that they did not remember Mr. Collins ever making such a request. [2] [ 27 ] Officer Samara pulled on the strap of the fanny pack and it broke. Mr.

Collins reacted immediately: he threw the fanny pack toward Mr. Birod and stopped resisting Officer Paquette. Mr. Collins was pulled out of the car and Officer Samaras tried to gain control over him. Mr. Collins was resisting by keeping his arms stiff, which made it difficult for Officer Samaras to handcuff him. [ 28 ] While Officer Samaras was trying to gain control over Mr. Collins, Officer Paquette quickly grabbed the fanny pack from Mr. Birod’s hands. At trial, Officer Paquette testified that Mr. Birod looked stunned when he received the fanny pack. In fact, Officer Paquette was under the impression that Mr.

Birod was handing him the fanny pack. Officer Samaras described the scene differently: he stated that the fanny pack landed close to Mr. Birod but that Mr. Birod acted as if he did not want to touch the bag. [ 29 ] The fanny pack was made of soft fabric. When Officer Paquette grabbed the fanny pack, he immediately felt a firearm. He advised Officer Samaras and called for backup on his police radio. The events unfolded quickly as police logs indicate a delay of less than a minute between Officer Paquette’s two calls for backup. [ 30 ] Officer Paquette secured the firearm.

Both officers took out their guns and began restraining the other passengers in the car. They began with the front passenger, moved on to Mr. Birod, and then other police officers arrived on site and took over. [ 31 ] At that point, Officer Paquette went back to Mr. Collins and informed him of his rights. Mr. Collins asked about the outstanding warrant and Officer Paquette provided him with all of the information in relation to the warrant. Mr. Collins was brought to the police station for booking. He was searched and all of his belongings were listed and placed in an envelope.

He called his lawyer and was placed in a cell. [ 32 ] Three statements of offence were prepared: Mr. Collins and Mr. Birod each received a statement of offence for not wearing their seatbelts and the driver received a statement of offence for not having the rental agreement in her possession. At trial, Officer Paquette admitted that he had signed one of the statements of offence even though it was his partner who had witnessed the offence.

He immediately admitted that this was an error and explained that the statements of offence were prepared after the events occurred and that he was still shaken by what had occurred at that time. [ 33 ] At trial, Officer Paquette was asked to explain why he seized the fanny pack. He testified that the seizure of the fanny pack was incidental to Mr. Collins’ arrest and motivated by safety concerns. From his testimony, the Court understands that the following circumstances brought him to grab the fanny pack: • Mr. Collins was resisting Officer Paquette’s efforts to pull him out of the car; • At the same time, Mr.

Collins was trying to get rid of the fanny pack; • Yet, the fanny pack belonged to Mr. Collins; he was wearing it and he took out his health insurance card from it; • As soon as the fanny pack got loose, Mr. Collins got rid of it by throwing it toward Mr. Birod; • At the same time, Mr. Collins stopped resisting Officer Paquette; • Mr. Collins’ reaction made Officer Paquette believe that Mr. Collins did not want the police to get a hand on what was in the fanny pack; • The fanny pack was now in Mr.

Birod’s possession; • There were three other passengers in the car; the atmosphere on the scene was tense. [ 34 ] Officer Paquette testified that while he did not know what was in the fanny pack, Mr. Collins’ behaviour in relation to the fanny pack, as well as the circumstances surrounding the intervention, led him to believe that it was important, for his safety, to get control of the bag. [ 35 ] As for Officer Samaras, his testimony on this issue is similar. In short, he testified that it was important for him to get control of the fanny pack given that he considered that Mr.

Collins was behaving unusually toward it and that raised safety concerns in light of circumstances surrounding the intervention. Mr. Collins’ testimony [ 36 ] Mr. Collins was a backseat passenger in a car that was driving on Jean-Talon Street. He was not wearing his seatbelt. At one point, a police officer came toward his window and told the driver to pull over, which she did. [ 37 ] The two officers got out of their patrol car. Officer Samaras walked toward the driver’s side, while Officer Paquette walked toward the passenger side.

Officer Paquette came to his window and asked him if he remembered him, saying that he had previously arrested him. Mr. Collins replied that he did not know him. Officer Paquette told him that he was being stopped because he was not wearing his seatbelt and asked for a piece of identification. Mr. Collins gave him the information requested. Officer Paquette then asked

the front seat passenger for his identification but the man refused to identify himself. [ 38 ] In the meantime, Officer Samaras was talking with the other backseat passenger because he did not have proper identification documents. He only had a probation document with his name on it. Officer Samaras asked the other backseat passenger to get out of the car. The man called his lawyer, who told him that he had to comply with the officer’s request. The man therefore got out of the car. [ 39 ] Both officers went back to the patrol car and then came back toward the car.

Officer Samaras went toward the driver’s door, while Officer Paquette went to Mr. Collins’ door. Officer Paquette tried to open Mr. Collins’ door, but it was locked. He also tried to open the front seat passenger’s door, but it was also locked. The front seat passenger asked Officer Paquette why he had tried to open his door and asked if he was under arrest. [3] [ 40 ] Officer Paquette told Mr. Collins that he was under arrest. Mr. Collins asked why and Officer Paquette did not answer. Mr. Collins then saw Officer Samaras reaching for the car keys, but he did not find them.

Officer Samaras was able to unlock the doors of the car through the driver’s window, which was open. [ 41 ] When the doors unlocked, Officer Paquette grabbed Mr. Collins to pull him out of the car. Mr. Collins said that he would get out of the car if he could give his fanny pack to the other backseat passenger. One of the officers replied: “the bag stays with you”. Officer Samaras pulled on the strap of the fanny pack and it broke. Mr. Collins gave the fanny pack to the other back seat passenger. Officer Paquette then pulled him out of the car. At the trial, Mr.

Collins testified that he was “chill” meaning that he remained calm as his only goal was to give his bag to another passenger. [ 42 ] At trial, Mr. Collins explained that Officer Paquette never told him why he was under arrest, even after he was handcuffed. In fact, he only learned that he was arrested for an outstanding warrant at the police station. In this respect, Mr. Collins explained that he had just been released from a prison in Ontario. They had checked for outstanding warrants prior to letting him go, and he had none.

He added that he had completely forgotten about a pending file he had in Gatineau in which he missed a court date on March 17, 2017, because he had been apprehended by police in Ontario on March 5, 2017. GOVERNING PRINCIPLES The right to be informed of reasons for arrest [ 43 ] Paragraph (

a) of

section 10 of the Canadian Charter of Rights and Freedoms states that everyone has the right on arrest or detention to be informed promptly of the reasons therefor. [ 44 ] That right is firmly rooted in the common law. It is founded on the notion that one is not obliged to submit to an arrest if one does not know the reason for it. [4] The reasons need not to be lengthy or technically precise. It is sufficient if they convey the general extent of the person’s jeopardy. [5] [ 45 ]

Section 495 of the Criminal Code provides that a police officer may arrest, without warrant, a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; a person whom he finds committing a criminal offence; or a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal is in force within the territorial jurisdiction in which the person is found. [ 46 ] In the matter at hand, Officer Paquette arrested Mr. Collins because there was an outstanding warrant for his arrest.

Officer Paquette did not arrest Mr. Collins because he had reasonable grounds to believe that he had committed an indictable offence or because he witnessed him committing a criminal offence. [ 47 ] Obviously, the legal basis from which the arrest derives has an impact on the information to be provided to the suspect. As the majority of the Supreme Court of Canada stated in R. v.

Gamracy , [6] when the arrest derives from an outstanding warrant, the duty of the arresting officer is fully discharged by telling the arrested person that the reason for his arrest is the existence of an outstanding warrant. [ 48 ] That being said, the obligation to promptly provide reasons for an arrest is not absolute. Circumstances such as police or public safety may justify a delay in providing this information. [7] The search incident to arrest [ 49 ]

Section 8 of the Charter states that everyone has the right to be secure against unreasonable search or seizure. [ 50 ] A search performed by a police officer will only be reasonable if it is authorized by a common law power or by a statutory provision. At common law, police officers are permitted to conduct warrantless searches and seizures in certain situations. These common law powers find their genesis in the more general doctrine of ancillary police powers. [8] [ 51 ] This doctrine was first articulated by the English Court of Criminal Appeal in R. v.

Waterfield, [9] in which the Court held that an interference with liberty or property was only authorized under the common law if the conduct of the police fell within the general scope of a duty imposed on the police by statute or common law and was not unjustifiable in the circumstances. [ 52 ] In R. v. Dedman , [10] the Supreme Court of Canada adopted the two-step Waterfield test to determine if the police conduct was authorized under the common law.

The Supreme Court of Canada has since repeatedly applied the two-step Waterfield test to decide whether police conduct was authorized under the common law. [11] [ 53 ] In applying the Waterfield test, courts must first consider whether the police conduct giving rise to the interference with liberty

falls within the general scope of any duty imposed on the police by statute or at common law. There are a number of police duties that arise under the common law: the duty to protect life and safety; the duty to preserve the peace; the duty to prevent and investigate crimes; and the duty to protect property. If the conduct of the police was undertaken in connection with one of these duties, then the first step of the Waterfield test is met. [12] [ 54 ] In analyzing the second step, courts must consider whether the conduct involved an unjustifiable use of powers associated with the duty.

Thus, the second step requires a balance between the competing interests of the police duty and of the liberty interest at stake. [13] [ 55 ] The power of a police officer to search a person who has been lawfully arrested flows from the doctrine of ancillary police powers, has deep roots in the common law and has been recognized by the Supreme Court of Canada. [14] [ 56 ] Three conditions must be satisfied in order for a search to be validly undertaken pursuant to the common law power of search incident to arrest: first, the arrest must be lawful; second, the search must have been conducted as an “incident” to the lawful arrest; and, third, the manner in which the search is carried out must be reasonable.

If all three conditions are met the search will be “authorized by law” for the purposes of

section 8 of the Charter . [15] [ 57 ] In the case at bar, counsel for Mr. Collins admitted that his client’s arrest was legal and thus, that the first condition was satisfied. He did not argue that the search was carried out in an unreasonable manner and thus, that the third condition was not met. Rather, he focused on the second condition, arguing that the search was not conducted as an “incident” to the lawful arrest of his client. [ 58 ] As the Supreme Court of Canada recognized in Cloutier v. Langlois , the ultimate purpose of criminal proceedings is to convict those found guilty beyond a reasonable doubt.

The criminal justice system is based on the punishment of conduct that is contrary to the fundamental values of society, as statutorily enshrined in the Criminal code and similar statutes. The system depends for its legitimacy on the safe and effective performance of police duties. [16] [ 59 ] The context of an arrest gives rise to two primary considerations. First, the arrest process must ensure that those arrested will come before the court. An individual who is arrested should not be able to evade the police, otherwise the administration of justice will be brought into disrepute.

Thus, a search for weapons or other dangerous articles is necessary as an elementary precaution to preclude the possibility of their use against the police, the nearby public or the person arrested. Second, the arrest process must ensure that evidence found on the accused and in his immediate surroundings is preserved. The effectiveness of the system depends in part on the ability of police officers to collect evidence that can be used in establishing the guilt of a suspect beyond a reasonable doubt.

The legitimacy of the justice system would be but a mere illusion if the person arrested were allowed to destroy evidence in his possession at the time of the arrest. [17] [ 60 ] The limits on search incident to arrest are derived from the justification for the common law power itself: searches which derive their legal authority from the fact of arrest must be truly incidental to the arrest in question as the authority for the search arises out of a need for the law enforcement authorities to gain control of things or information which outweighs the individual’s interest in privacy. [18] [ 61 ] Thus, in conducting a search incident to arrest, the police must have one of the purposes for a valid search incident to arrest in mind, and the officer’s belief that this purpose will be served by the search must be reasonable.

The officer need not to have reasonable and probable grounds, which is the normal threshold that must be surpassed before a search can be conducted. The only requirement is that there be some reasonable basis for doing what the police officer did. [19] [ 62 ] In R. v. Caslake , [20] Justice Lamer, writing for the majority of the Supreme Court of Canada, underlined the difference between the normal threshold for executing a search and the standard applicable to a search incident to an arrest by providing the following example.

The reasonable and probable grounds standard would require a police officer to demonstrate a reasonable belief that an arrested person was armed with a particular weapon before searching the person. By contrast, under the standard that applies to the search incident to an arrest, a police officer would be entitled to search an arrested person for a weapon if under the circumstances it seemed reasonable to check whether the person might be armed. [21] [ 63 ] This example shows that there is a significant difference in the two standards.

The police have considerable leeway in the circumstances of an arrest, which they do not have in other situations. [22] [ 64 ] One of the reasons for this leeway derives from the fact that police work is dangerous work. In R. v. Golub , [23] Justice Doherty of the Ontario Court of Appeal emphasized the importance of the police interest in protecting the safety of those at the scene of the arrest. He stated that this interest is often the most compelling concern at an arrest scene and must be addressed immediately.

In deciding whether the police were justified in taking steps to ensure their safety, the realities of the arrest situation must be acknowledged. Justice Doherty noted that the atmosphere at the scene of an arrest is volatile, and the police must expect the unexpected.

He reminds us that the price paid if inadequate measures are taken to secure the scene of an arrest can be very high. [24] [ 65 ] Said differently, one cannot ask a police officer to place himself in potentially dangerous situations in order to proceed to an arrest without, at the same time, acknowledging his authority to take reasonable steps to protect himself from danger. [25] [ 66 ] Given these considerations, there is no pre-fixed spatial or temporal limit attached to the power to search incident to arrest.

If there are sufficient spatial and temporal connections between the reason for the search and the arrest, the search will be incidental. [26] [ 67 ] Thus, contrary to defence counsel’s argument in the case at bar, a search incident to arrest is not limited to the accused’s person. In R. v. Patrick , [27] Justice Fitch of the British Columbia Court of Appeal concluded, after a review of the case law, that there was no authority to support such a proposition.

He added that r equiring, as a matter of constitutional principle, that police officers be confined to a physical pat-down search of the detainee risks bringing about the very harm that the common law power is designed to guard against. [28]

[ 68 ] In short, police may search anything that is in an arrested person’s possession or immediate surroundings to guarantee their safety. What constitutes the “immediate surroundings” will vary with the circumstances of each case. [29] [ 69 ] As Justice Cromwell of the Supreme Court of Canada stated in R. v. Fearon , [30] the permissible scope of searches incident to arrest will be affected by the particular circumstances of the particular arrest.

The courts will rarely be able to establish any categorical limit applicable to all arrests and all purposes incident to them. [31] PRINCIPLES APPLIED The credibility issue [ 70 ] Before addressing the legal issues, the Court must first turn its attention to assessing the credibility and reliability of the witnesses. [ 71 ] Mr. Collins’ testimony was not consistent. For example: • Mr. Collins first testified that he was looking at Officer Paquette at all times when the events were unfolding.

Yet, he testified that he saw Officer Samaras trying to open the driver’s door, trying to reach for the car keys and finally, unlocking the doors. When asked how he could see all of this if his attention was on Officer Paquette at all times, he changed his testimony, stating that he was looking at both officers. • Mr. Collins first testified that when Officer Paquette came back to the Dodge Charger, he tried to open his door.

In cross- examination, as he was describing Officer Paquette’s behaviour, he added that when Officer Paquette came back to the Dodge Charger, he first went to the front passenger’s door and tried to open it. He had never mentioned this before even though he had described the entire intervention. [ 72 ] Many parts of Mr. Collins’ testimony are simply unbelievable or do not add up: • Mr. Collins testified that being asked to pull over by Officer Samaras did not bother him, even though he had a firearm with ammunition in his fanny pack. Mr.

Collins added that his stress level did not rise, he did not feel uncomfortable and that he had no reaction nor apprehension because he thought that this was a simple traffic stop. • Mr. Collins testified that there was no tension in the car even in light of the following facts (to which he testified): Officer Paquette tried to open the front passenger’s door and Mr. Collins’ door without justifying his actions; the front passenger reacted when Officer Paquette tried to open his door; Officer Paquette told Mr. Collins that he was under arrest; Mr.

Collins asked why, and Officer Paquette did not provide any information; in the meantime, Officer Samaras tried to open the driver’s door, but it was locked; he tried to grab the car keys but he could not; when the doors were unlocked, Officer Paquette opened Mr. Collins’ door and tried to pull him out; at that point, no one knew why Mr. Collins was under arrest. • Mr.

Collins testified that he never got tense and that he remained calm at all times even though Officer Paquette wanted to arrest him without informing him of the reason for his arrest; even though Officers Paquette and Samaras tried to grab the fanny pack and even though he had a firearm with ammunition in his fanny pack when these events were unfolding. • Mr. Collins testified that he knew the other people in the car pretty well. He referred to the other backseat passenger as his friend. Yet, while he was testifying, he forgot the name of the other backseat passenger. • Mr.

Collins testified that he wanted to give his bag to his friend before getting out of the car. Yet, in cross-examination, when asked if he thought about the fact that the person to whom he would give the bag could be arrested for possession of a firearm and ammunition, he replied that he did not care. • His story about how he came to be in possession of the firearm is also simply unbelievable. [ 73 ] The fact that many parts of Mr. Collins’ testimony are unbelievable, coupled with the fact that his testimony was not consistent, casts a doubt on his entire testimony. As a result, the Court finds that Mr.

Collins’ testimony is not credible or reliable, especially when it relates to the following subjects: the atmosphere in the car; the information provided by Officer Paquette regarding the reason for his arrest and the description of the events that led to the seizure of his fanny pack. [ 74 ] As for Officers Paquette and Samaras, they provided a clear, detailed, frank and honest description of the events that unfolded that day. [ 75 ] Defence counsel argued that there were two contradictions between their testimony. The first one deals with the behaviour of Mr. Collins after he threw his fanny pack toward Mr.

Birod. Officer Paquette testified that Mr. Collins stopped resisting while Officer Samaras testified that Mr. Collins still offered resistance. While this may seem like a contradiction, it is not. When Mr. Collins threw his fanny pack, he stopped resisting Officer Paquette’s pull and thus, was taken out of the car. At that point, Officer Paquette’s attention was on the fanny pack, not on Mr. Collins. It was Officer Samaras’ turn to handle Mr. Collins and thus, he is the only one who could know whether Mr. Collings was offering resistance.

Thus, there is no contradiction between their testimony. [ 76 ] The second contradiction raised by defence counsel deals with the moment at which the fanny pack got loose. Officer Paquette testified that the fanny pack got loose because the strap broke when Officer Samaras pulled on it, while Officer Samara testified that he did not know how the fanny pack got loose. Again, this is not a contradiction. Rather, it shows that the two officers had a different line of sight. [32] [ 77 ] Thus, the Court concludes that the testimonies of Officers Samaras and Paquette are consistent and reveal no significant

contradictions. [ 78 ] Defence counsel also argued that the testimony of both officers lacks credibility or reliability as they failed to mention in their police report the fact that there was tension in the car while the intervention was ongoing. In this regard, the Court finds that the omission by Officers Samaras and Paquette to mention this in their report has no bearing on their credibility or their reliability.

Indeed, while courts expect police officers to provide detailed reports, it is unrealistic to believe that a police report will ever be as detailed as a police officer’s testimony. [ 79 ] That being said, there is an issue that needs to be addressed in relation to Officer Paquette’s credibility, which is the fact that he admitted to having signed the statement of offence even though he did not personally witnessed the offence. When confronted with this, Officer Paquette immediately admitted that this was improper.

He explained that the statement of offence was prepared on that day, at around noon, that he was still shaken by what had occurred, and, thus that he had made a mistake. Obviously, the Court can only imagine how a police officer would feel after finding a loaded weapon in the course of what began as a simple Highway Safety Code stop. In this regard, Officer Paquette testified that this was the only time in his career that he had seized a loaded gun in the course of a Highway Safety Code stop. Officer Paquette also explained how the circumstances surrounding this intervention had his adrenaline pumping.

In short, while it was improper for Officer Paquette to sign the statement of offence, the Court finds that this bears no impact on Officer Paquette’s credibility or reliability in this matter, given the circumstances of this case. [ 80 ] Finally, another issue needs to be addressed, relating to Officer Samaras’ credibility. In the course of his cross-examination, Officer Samaras recognized that he pleaded guilty to a disciplinary charge for not having respected the authority of the law.

Obviously, the fact that a police officer breached his code of ethics is something that must be considered when assessing his credibility. In the matter at hand, Officer Samaras admitted the breach, explained that he had pleaded guilty to the charge and even provided some background information in this regard. In other words, he was frank and honest and did not try to minimize his conduct. Thus, the Court finds that this does not hinder Officer Samaras’ credibility or his reliability. [ 81 ] In light of the foregoing, the Court finds the testimony of Officers Samaras and Paquette to be both credible and reliable.

The right to be informed of reasons for arrest [ 82 ] In the matter at hand, the evidence shows that the four passengers of the Dodge Charger were initially intercepted and detained in relation to Highway Safety Code violations. [ 83 ] After the initial intervention, Officers Samaras and Paquette returned to their patrol car to verify the identity of the three passengers to whom a statement of offence would be issued. [ 84 ] In the course of these verifications, they learned that a warrant for Mr. Collins’ arrest had been issued in Gatineau and that the warrant related to a charge of obstructing a police officer.

Pursuant to paragraph (

c) of

section 495 of the Criminal Code , Officers Samaras and Paquette had the power to arrest Mr. Collins. [ 85 ] When Officer Paquette returned to the Dodge Charger, he did not immediately proceed to Mr. Collins’ arrest, nor did he tell him that he had an outstanding warrant. Instead, he asked Mr. Collins to step out of the car twice, and on both occasions, Mr. Collins refused. [ 86 ] At trial, Officer Paquette explained why he proceeded that way. First, he believed that the outstanding warrant was a matter that concerned only Mr. Collins and thus, he wanted to tell him in private.

Second, he had safety concerns because he and his partner did not have control over the car and thus, could not prevent the driver from just speeding away. [ 87 ] In choosing to proceed to ask Mr. Collins to step out of the car instead of immediately telling him that he had a pending warrant, Officer Paquette was not breaching Mr. Collins’ constitutional rights; he was acting within his discretion as a police officer. The Court finds that Officer Paquette subjectively believed that it was best for everyone involved that Mr.

Collins be arrested outside of the car, and the Court finds that his belief was reasonable in light of the circumstances of this case, including the fact that Officers Samaras and Paquette were outnumbered and were not in control of the car. [ 88 ] Given Mr. Collins’ refusal to get out of the car, Officer Paquette told him that he had an outstanding warrant for his arrest and thus, that he wanted to proceed to his arrest. Mr. Collins said that it was impossible. At trial, Officer Paquette testified that he thought that he had immediately told Mr.

Collins that the warrant had been issued in Gatineau and was in relation to a charge of obstructing a peace officer. Obviously, if Officer Paquette immediately provided Mr. Collins with all the information that he had, there is no breach of Mr. Collins’ right to be informed of the reasons for his arrest. [ 89 ] But, what if he did not immediately provide him with all of this information and instead, told him only that there was an outstanding warrant for his arrest? [ 90 ] The evidence shows that after being told that he had an outstanding warrant, Mr.

Collins did not comply with Officer Paquette’s request that he step out of the car. Rather, the situation escalated quickly with Mr. Collins physically resisting both Officer Paquette and Samaras. In addition to this, Officers Paquette and Samaras had security concerns regarding Mr. Collins’ fanny pack and thus, Officer Paquette made it a priority to get control of the fanny pack. Once the situation was under control, meaning that it no longer posed a threat to Officers Paquette and Samaras’ security, Officer Paquette informed Mr.

Collins of his rights and, at his request, gave him all the details that he had concerning the outstanding warrant. Of this, Officer Paquette is sure. [ 91 ] There are two reasons why the Court concludes that Mr.

Collins’ right to be informed of the reasons for his arrest was not breached even if Officer Paquette did not immediately give him all the details concerning to the outstanding warrant. [ 92 ] First, the majority of the Supreme Court decided, in Gamracy , that in a situation where the arresting officer’s power to proceed to an arrest flows from an outstanding warrant, the officer fully discharges his obligation to advise the person being arrested of the reason for his or her arrest by telling that person that there is an outstanding warrant for his or her arrest. While this decision was rendered

before the Charter , it is the Court’s opinion that the ratio decidendi is still applicable considering that the purpose of

section 10 (

a) of the Charter is to ensure that the reasons provided to the person arrested sufficiently convey the general extent of that person’s jeopardy. [ 93 ] Second, the obligation to promptly provide reasons for an arrest is not absolute and security concerns may justify a delay in providing this information. In the matter at hand, such concerns were present and justified a delay in providing Mr. Collins more information on the warrant. [ 94 ] As Officer Paquette explained, it was important that the intervention be done quickly as they were outnumbered and did not have control over the car.

In addition to this, as soon as Officer Paquette told Mr. Collins that he was under arrest, the officers were met with resistance from the driver, who did not unlocked the door when asked to do so by Officer Samaras, from Mr. Collins, who refused to get out of the car, who physically resisted when Officer Paquette tried to pull him out of the car and when Officer Samaras tried to handcuffed him and with a potential interference by the front seat passenger who, on two occasions, opened his door and set his foot down on the ground, as if he wanted to get out of the car.

In short, the situation raised multiple serious security concerns for both police officers as it progressed. It is obvious that in such circumstances, it would be unrealistic to expect Officer Paquette or Officer Samaras to provide additional details to Mr. Collins about the outstanding warrant while the situation was not under control. [ 95 ] In light of the foregoing, the Court finds that Mr. Collins’ constitutional right to be informed promptly of the reasons for his arrest, provided by

section 10 (

a) of the Charter , was not breached. The search incident to arrest [ 96 ] As stated above, three conditions must be satisfied in order for a search to be validly undertaken pursuant to the common law power of search incident to arrest: first, the arrest must be lawful; second, the search must have been conducted as an “incident” to the lawful arrest; and, third, the manner in which the search is carried out must be reasonable. [ 97 ] In the matter at hand, defence counsel admits, rightly so, that Mr.

Collins’ arrest was lawful and thus, the first condition is met. [ 98 ] As for the second condition, Justice Lamer stated in Caslake that for the search to be truly incidental to an arrest, the police officer who executed the search must have one of the purposes for a valid search incident to arrest in mind and the officer’s belief that this purpose will be served by the search must be a reasonable. [ 99 ] In the matter at hand, Officer Paquette’s testimony clearly establishes that he had subjective concerns for his safety when he grabbed Mr.

Collins’ fanny pack, and the Court believes his testimony in this regard. Thus, the subjective component required for the seizure to be incidental to an arrest is met: Officer Paquette had a valid purpose in mind when he seized the bag.

The same conclusion can be reached when considering Officer’s Samaras’ testimony. [ 100 ] As for the objective component, which requires that the officer’s belief that the search would serve a valid purpose, the evidence also shows that when Officer Paquette decided to seize the fanny pack, he was aware of the following circumstances: • There were four passengers in the car; the other back seat passenger, Mr. Birod, is 6 foot 3 inches tall and weighs approximately 200 pounds; he had already expressed his discontent with the police intervention; • Two of these passengers, Mr. Birod and Mr.

Collins, had prior convictions; • When Officer Paquette came back to the Dodge Charger, Mr. Collins’ window, which had been open, was now almost closed; • Mr. Collins refused to get out of the car when asked to do so by Officer Paquette; he even refused to lower his window; • Mr. Collins refused to get out of the car even when he was told that there was an outstanding warrant for his arrest; • The doors of the car were locked; when the doors unlocked, Mr. Collins did not step out of the car; • Mr.

Collins resisted when Officer Paquette tried to pull him out of the car; at the same time, he was doing everything that he could to remove his fanny pack; • While Officer Paquette was trying to pull Mr. Collins out of the car, he heard his partner yelling at the front seat passenger to remain in the car; • When the fanny pack got loose, Mr. Collins immediately threw it at Mr. Birod, away from Officers Paquette and Samaras; • At the same time, Mr. Collins’ attitude changed; he stopped resisting Officer Paquette’s pull and was taken out of the car; • Mr.

Collins’ behaviour toward the fanny pack was odd considering that the fanny pack appeared to belong to him; he was wearing it and he took out his health insurance card from one of its pockets; • When Mr. Birod received the fanny pack, he looked stunned; • The fanny pack was now in possession of Mr. Birod; there were still three passengers in the car. [ 101 ] The totality of these circumstances shows that Officer Paquette’s subjective concerns for his safety when he seized the fanny pack were reasonable. The same can be said of Officer Samaras’ subjective concerns regarding the fanny pack.

Thus, the objective component of the second condition is met. [ 102 ] The third condition requires courts to ensure that the seizure is carried out in a reasonable manner. In the matter at hand, force

was used by Officer Paquette to proceed to Mr. Collins’s arrest because he had refused to comply, on more than one occasion, with Officer Paquette’s request to get out of the car. No force was used to seize the fanny pack. Officer Paquette reached into the car to grab the fanny pack and even got the impression that Mr. Birod was handing him the bag. [ 103 ] Once Officer Paquette took hold of the fanny pack, he immediately felt a firearm and thus, his decision to open the fanny pack and seize the gun and the ammunition was also reasonable.

The manner in which the fanny pack, the firearm and the ammunition were seized was reasonable in light of all of the circumstances of this case. Thus, the third condition is met. [ 104 ] In light of the foregoing, the Court concludes that the seizure of the fanny pack and the search of the fanny pack were authorized by law. There is thus no breach of Mr. Collins’ constitutional right to be secure against unreasonable search or seizure provided by

section 8 of the Charter . CONCLUSION For these reasons, the Court: DISMISSES Mr. Collins’ Motion to exclude the evidence. __________________________________ MÉLANIE HÉBERT, J.C.Q. Mtre Jean-Philippe MacKay Attorney for the Prosecutor Mtre Benoît Demchuck Attorney for the Accused