HER MAJESTY THE QUEEN - v. -, 2013 MBPC 75

2013 MBPC 75 THE PROVINCIAL COURT OF MANITOBA BETWEEN: HER MAJESTY THE QUEEN - and - J.H.M., Young Person. ___________________________________________________________ TRANSCRIPT OF PROCEEDINGS before The Honourable Judge Corrin, held at the Law Courts Complex, 408 York Avenue, in the City of Winnipeg, Province of Manitoba, on the 23rd day of October, 2013. ___________________________________________________________ APPEARANCES: MS. C. ST. CROIX, for the Crown MS. S. BRACKEN, for the Young Person THE CLERK: ... now open, Judge Corrin presiding. THE COURT: Good morning.

THE CLERK: You may be seated. MS. BRACKEN: Good morning. Good morning, Your Honour. MS. ST. CROIX: Good morning, Your Honour. THE COURT: What was that? THE CLERK: The mike. THE COURT: Oh, okay. MS. BRACKEN: Bracken for the monitor, Your Honour. Just before you deliver your decision I just wanted to make sure is -- THE COURT: Yeah. MS. BRACKEN: -- my client okay there or would you like her to come into the box? THE COURT: No, I think it's fine if she just sits there -- MS. BRACKEN: Okay. THE COURT: -- at this point. We're not sentencing her, we're just giving a decision.

And I'm assuming she can hear everything from there. She could sit beside you if she wants, I ... MS. BRACKEN: Do you want to come up beside me or are you okay there? THE YOUNG PERSON: (Inaudible.) THE COURT: Certainly if for no other reason -- MS. BRACKEN: Okay. THE COURT: -- than to be able to ask you questions or for moral support, I suppose. MS. BRACKEN: She's indicating that she's okay there for now. THE COURT: Okay. It's a lengthy decision so you will have to be patient. It isn't typed so I'm going have to read.

I might as well, given that for the record we're all here, counsel for both sides are present, Ms. Bracken and Ms. St. Croix and of course we've already heard that J.H.M. the young person, accused, is here as well. I will therefore go straight to the decision. The young person, J.H.M. is charged with possess goods obtained by crime pursuant to Section 354(1) (

a) of the Criminal Code . Defence counsel has argued that J.H.M.'s rights, pursuant to

Section 8 of the Charter, were violated when she was subjected to arbitrary detention and a subsequent unreasonable search and seizure by Constable Duncan Paterson of the Winnipeg Police Service. Ms. Bracken submitted that the stolen cell phone found by the officer should be excluded, pursuant to

Section 24.2 of the Charter. The circumstances relating to this matter, as communicated to the court, are as follows: Paterson told court that he received a dispatch call about certain suspicious activity in a particular community in south St. Vital. A group of five or six young persons, wearing dark clothing, had allegedly been seen behaving suspiciously on the streets. The call dispatcher, according to Paterson, told him that the police informant suspected that the group might have been stealing property from vehicles. No actual details were provided to Paterson.

Constable Paterson was personally concerned about the incidence of this type of crime in south St. Vital because he was personally a resident in the community and a neighbour of his had previously -- had, excuse me, had personally discussed being so victimized with him a day or so before while they were socializing. Rather than going to the street where the call emanated from Constable Paterson decided to proceed in another manner. Being familiar with the community's road system he told court that he had deduced that there were only two ways the youths could leave the community.

He told court that he decided to position his vehicle at one such location in the hope that the youths would be leaving the community via this route. He testified that his familiarity with the community informed him that it would take the youths approximately 20 minutes to walk from the place where they had been seen by the informant to where he stationed his cruiser car. As things turned out five youths fortuitously arrived at his chosen location in the timeframe he described to the court.

Paterson emerged from his vehicle and told them they were being, quote unquote, "detained" with respect to a property theft investigation and ordered them to sit on the sidewalk. The youths complied with his directions and were described by Paterson as cooperative. After reading them their counsel rights and the standard police caution he went back to his vehicle and called for another police car. He explained that he did this because he was alone and didn't feel comfortable pursuing his investigation of the five detainees without backup.

While he waited for the other officers to arrive Paterson asked the group where they had come from, a question which he stated no

one answered. Paterson found this suspicious. His suspicions were further elevated when one or more of the youths told him that they were going to Arden, A-R-D-E-N, a street which Paterson knew was not in the direction they were walking. Paterson told court that this apparent deception made him conclude that they were lying. Soon after this other police vehicles attended the detention scene. Soon afterwards the officers engaged in a search of the detainees. Paterson told court that this was done in order to secure officer safety. The prosecution did not call any of these officers as witnesses at this voir dire.

Paterson said that he personally searched J.H.M., it was his testimony that he did so by patting her down over her clothes, that while doing so he had felt, quote, "hard", unquote unidentified objects in her hoodie pockets and had retrieved same to determine if, if they were weapons. The objects were a cell phone, a GPS device, $16 in coins and a flashlight. Constable Paterson acknowledged that his suspicions were aroused at this point causing him to question the accused about the ownership of the cell phone and GPs device. According to Paterson she offered no explanation.

This evidence did not completely align with J.H.M.'s testimony on this point. She later told court that she had advised Paterson that the GPS belonged to her friend's mom and identified the friend to him as being Tyson, a member of the detained group. She agreed that she hadn't responded to his inquiry with respect to the cell phone. It was J.H.M.'s further contention that the cell phone, the coins and the GPS device had been in her purse, not her hoodie pocket, something Paterson denied on cross-examination.

Paterson went on to relate that he, quote, "strongly believed", to use his words, that J.H.M. would have answered his question about the cell phone if she owned or lawfully possessed it. As a consequence of this he didn't return this item of property to J.H.M., choosing instead to retain it and see if anyone had reported it stolen. He then drove J.H.M. home. He initially testified that he had done this because she was what he described as a chronic missing person and then a little later also because he believed that the courts required him to do so.

He further stated that another reason for taking her home was to prevent J.H.M. from committing another offence. On cross-examination Constable Paterson expressed the view that he'd had cause to arrest the accused at the detention scene. He wasn't specifically asked to explain his reasoning in such respect. J.H.M. tearfully told court that she was taken home in handcuffs.

Paterson went on to disclose that he followed up on the cell phone ownership over the next few weeks and after determining that it was the property of another person had arrested J.H.M. on November the 6th, approximately a month after the incident. There was no indication that the cell phone had been stolen on the day or locations in question. I will now attempt to deal with the legal issues that arise from the evidence before the court. There is, of course, no question that Constable Paterson detained J.H.M. at the incident scene.

He claimed to have been told that an unnamed informant had related certain information to other police personnel by telephone, notwithstanding that he had been dispatched -- and notwithstanding that he had been dispatched to look for five or six young people, approximately a 20 minute's walk from where he encountered the accused and her friends, he decided that these young persons more or less matched up descriptively with the information he said he had been given. He suspected them of being recently involved in car hopping, as he termed it.

The use of the police power to detain for investigative purposes requires that same be premised upon reasonable grounds. The investigation must be viewed as reasonably necessary on an objective view of the totality of the circumstances. There must be a clear nexus between the detained individual and a recent or ongoing criminal offence. I refer to paragraph 34 of the 2004 Ontario Court of Appeal Mann decision, M-A-N-N, for authority in this regard.

"The overall reasonableness of the decision to detain ... must further be assessed against all of the circumstances, most notably --" To quote again from paragraph 34 from Mann , quote: "-- the extent to which the interference with individual liberty is necessary to perform the officer's duty, the liberty interfered with, and the nature and extent of that interference ..." "The power to detain --" As then Ontario Court of Appeal Justice, Iacobucci, proclaims at paragraph 35 of Mann , quote: "-- cannot be exercised on the basis of a hunch, nor can it become a de facto arrest."

An investigative detention can in certain circumstances give rise to a right to perform a non-invasive search for officer safety. In Mann Mr. Justice Iacobucci also determined that an officer can do a protective pat down search of an individual detained for an investigative detention where the officer has reasonable grounds to believe that his or her safety or that of others is at risk. At paragraph 40 he said, quote: "The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention.

Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. I disagree --" This is still Iacobucci speaking. "I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances ..." "The officer's decision to search must also be reasonably necessary in light of the totality of the circumstances.

It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition." I am of the view that Constable Paterson -- this is me speaking now -- I am of the view that Constable Paterson provided a tenuous reason to stop the accused and her friends. After all he had never been given any specific incident details by the dispatcher. No crime had been reported as, as having actually been committed nor was one reported to have been in progress.

Paterson never went near the scene of the informant's concern, he simply stationed his vehicle a substantial distance away and looked for a group of five or six teens in dark clothing, a measure that was essentially a generic investigative exercise.

He basically exercised his power to detain on the basis of a hunch that these youths, because they were coming from the general direction of Thornberry (phonetic) -- and I apologize if I've got that street name wrong, that's as I heard it, it could have been something that sounded like Thornberry, there was no way for me to determine -- the locus of the informant's report might have been up to no good on the night in question. In my view, a dubious and legally unacceptable premise for a detention.

But this was not a situation where the accused or her friends attempted to flee or to fight or otherwise confront the officer. They were clearly completely cooperative, notwithstanding that they outnumbered Paterson five to one. When he asked them to sit on the sidewalk while he waited for other officers, they sat respectfully and apparently without the verbal abuse and attitude which are so often seen in these situations. They appear to have patiently awaited the arrival of other officers.

In the circumstances, given that reinforcements had arrived prior to the commencement of the search, I cannot discern any objective basis for Constable Paterson's concern for safety. This is a case where I believe that Constable Paterson's search was unreasonable, per se, because it was, in all the circumstances, unnecessarily intrusive as it did not seem to objectively accord with any real concerns for officer safety. Indeed, I am of the view that there is strong reason to believe that the search was motivated by the detection and collection of evidence. In those circumstances the search violated J.H.M.'s

Section 8 Charter rights as this search was warrantless and therefore prima facie unreasonable. In this respect it is noteworthy that Constable Paterson not only took the GPS, flashlight and cell phone from J.H.M. but also the $16 in coins. The court observes that it is difficult to imagine anyone confusing $16 in coins with a weapon. It is, therefore, the court's belief that Constable Paterson removed the coins and all the other objects as part of an investigative search for evidence and not for the stated purpose of officer safety.

Complicating matters further the court further notes that J.H.M. and Constable Paterson's evidence conflicted with respect to where Paterson located the cell phone. J.H.M. told the court that it was taken from her purse and Paterson claimed he recovered it from her pocket during the pat down. While J.H.M. was less certain than the officer as to the exact details of the search I do not share the Crown's opinion regarding her lack of credibility. She certainly seemed to be a sincere and forthright as Paterson on this and all other testimonial matters.

Accordingly, since the Crown conceded that a purse search would have been a

Section 8 Charter breach in an investigative detention scenario I, therefore, find that the search of the young person in the case was illegal for two reasons; because it was not necessary for officer safety and because it was overly intrusive and violated the accused's right to privacy. The Crown has accordingly failed to discharge its burden of showing that this warrantless search was reasonable in the manner in which the search was conducted. The court, therefore, moves on to the question of whether the evidence should be excluded pursuant to

Section 24.2 of the Charter. In an assessment of whether evidence should be excluded under

Section 24.2 of the Charter, a court must assess and balance the following three factors to determine if admission of the evidence would bring the administration of justice into disrepute. Firstly, the seriousness of the Charter infringing state conduct. Secondly, the impact of the breach on the Charter protected interests of the accused. And thirdly, society's interest in the adjudication of cases on their merits. In R. v. Grant Chief Justice McLachlin of the Supreme Court of Canada gave direction as to this overall inquiry in light of the meaning, of quote, "bring the administration of justice into disrepute." At paragraph 68 she said, quote:

"The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of,and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s.24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system,viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective.

It asks whether a reasonableperson, informed of all (the) relevant circumstances and the values underlying the Charter, would conclude that the admission of theevidence would bring the administration of justice into disrepute." The issue in this case is whether, in light of the above noted factors, the admission of the cell phone would bring the administration ofjustice into disrepute. I now turn to that analysis. I will first address the seriousness of the Charter infringing state conduct. This factor requires an evaluation of the seriousness of theconduct that led to the breach.

Police conduct can run from blameless to negligent to a blatant disregard for Charter rights. The moresevere or deliberate the conduct that led to the violation the greater the need for the courts to disassociate themselves from that conduct. In that regard I'm referring to the Supreme Court decision in Grant which I have already referred to, at paragraph 72 through 74, andanother Supreme Court decision, R. v. Harrison, (2009) 2009 SCC 34 , 2 SCR 494, at paragraphs 22 and 23. The accused was known to be a youth to Constable Paterson. She was, therefore, subject to the special protections of the YCJA.

Section3 sets out the principles that apply to that Act. Specifically,

Section 3.1(b)(3), so that is sub (1)(b)(3), which states that, quote: "the criminal justice system for young persons must be separate from that of adults ... (and) emphasize ... ... enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy --" I stress that. "-- are protected." Therefore, given the accused's obvious age, 16 at the time of the incident, the officer would have and should have been aware that he,that he had an even more onerous obligation than when dealing with an adult. I find, I find support for this approach in R. v.

J.(J.T.), (SCC), [1990] 2 SCR 755, at pages 766 and 767. Quote: "A young person is usually far more easily impressed and influenced by authoritarian figures. No matter what the bravado andbraggadocio that young people may display, it is unlikely that they will appreciate their legal rights in a general sense or theconsequences of oral statements made to persons in authority ..." "A young person may be more inclined to make a statement, even though it is false, in order to please an authoritarian figure.

It was nodoubt in recognition of the additional pressures and problems faced by young people that led Parliament to enact this code of procedure." Constable Paterson's behaviour and conduct cannot, in my view, be fairly characterized as blameless. For the reasons I have alreadyprovided it fell somewhere between negligent and blatant disregard for the accused's Charter rights. He had only a tenuous reason tostop or detain the accused as he was not anywhere near the alleged informant incident location. The fact is that he never even attemptedto attend such location.

It is also, it is also -- excuse me, I'm having trouble reading my writing, I'll have to think about this. It is also a fact that he had only aseemingly tenuous reason to stop and detain the accused and this was exacerbated by the fact that the accused was a young person. Given the circumstances, it seems likely that Constable Paterson was arbitrarily detaining the young person and her friends in order tosubject them to an illegal investigative search, not a search incidental to officer safety.

Aggravating matters further the cell phone was not returned to the youth, notwithstanding that it had allegedly only been taken from herwhen Constable Paterson thought it might be a weapon. In this same vein it is further noteworthy that there is no evidence that the cellphone in question was even related to the alleged informant's report that Constable Paterson related as the reason for the youth'sdetention and, of course, the seizure, itself, was without benefit of a search warrant.

The court also views the cell phone seizure as a fairly serious intrusion on a person's reasonable expectation of privacy as most moderncell phones contain personal information which not only includes data revealing their personal phone communications but also access totext and e-mail contacts and correspondence.

As a final point, the court further observes that officer Paterson's seizure was, needless to say, certainly not to preserve evidence of a crime as he had not received any information that any crime involving a cell phone, let alone a cell phone of this particular description, had even taken place when he effected the seizure. And, of course, there were less intrusive ways to record the cell phone's particulars. He could have, for instance, photographed it and/or recorded its serial numbers as well as its make and model.

It, therefore, wasn't after all really necessary for Constable Paterson to seize the cell phone to effect the investigative purpose in question. As a result, the court concludes that the officer's conduct falls quite close to the more serious end of the spectrum, favouring the exclusion of the cell phone evidence. I now turn my attention to the second Grant factor to be determined in this regard, the impact of the breach on the Charter protected interests of the accused.

As previously mentioned, I do not believe that there was more than a tenuous reason for Constable Paterson to have detained the accused in this regard. There really was not any specific evidence that she was doing anything wrong. She was nowhere near the scene of the reported questionable behaviour on Hollingbury when she was detained. There was no actual evidence that anything of a criminal nature had even been committed on Hollingbury on the morning in question let alone committed by the accused. A person's right not to be deprived of his liberty is a fundamental right in Canadian society.

A police officer has a duty to investigate crime and to detain persons who he or she has reasonable grounds to suspect have committed or are committing same but people cannot be detained for no reason.

The impact on the young person's right to liberty was certainly serious as she was not only subjected to the humiliation of being forced to lie on the ground for a considerable length of time while Constable Paterson waited for other officers to come to the detention scene but she was also ultimately forced to go where Constable Paterson decided to take her as part of that detention, apparently because he believed that she would be likely to commit a crime if left to her own devices.

In fairness to officer Paterson, he also related that he believed that the courts, as he put it, required police to transport all detained youths to their place of residence, that he was complying with the dicta of the courts. In this regard the court further observes that J.H.M. testified that she had been handcuffed while in the police cruiser, a more serious constraint of her personal liberty usually only incidental to arrest not investigative detention. It is noteworthy that the Crown did not challenge the accused's assertion when cross-examining her.

I am referring to the assertion of being handcuffed in the car. As such, the court concludes that J.H.M.'s evidence on this point should be believed, making the

Section 9 breach even more serious.

Section 8 of the Charter protects a person's right to privacy. In the absence of a lawful arrest or investigative detention or the execution of a search warrant a person has a right to be free from unreasonable searches. In this case, no search of the youth's pockets and/or purse would have occurred but for an arbitrary detention. The impact on the accused's right to privacy was also fairly serious as a cell phone is obviously the repository of considerable highly personal items of information.

And, of course, I have also found that the search in question was not conducted within the parameters outlined by the Supreme Court of Canada in the Mann decision, that it was conducted in a manner that constituted a serious violation of J.H.M.'s privacy. In this respect the court wishes to emphasize that it seems improbable in our age that an officer would, upon feeling a cell phone in a person's purse or pocket, mistake it for a weapon. This seems, to me, to lack an air of reality as a thin, rectangular cell phone bears no tactile let alone visual similarity to a gun, a knife or a can of bear spray.

Having determined that the impact on the Charter protected interests of the accused was serious I now turn my attention to the last Mann factor, society's interest in the adjudication on the merits. Obviously society has an interest in ensuring that those who break the law are brought to trial and dealt with according to law. The contested evidence in this case is real evidence, it is central to the Crown's case. Without it the Crown concedes that it will have no case, that it would be unable to prove their case against the accused.

The charge before the court is unrelated to the subject matter that reputedly motivated Constable Paterson to conduct his detention on the morning in question. There is no evidence that the phone in question was stolen on that morning or during the evening preceding it and no evidence that it had gone missing from a location in south St. Vital. Because Canada is a constitutional democracy our society has a vital interest in ensuring that those charged with upholding the law respect the constitutional rights of individuals and abide by the rule of law as they carry out their duties.

Thus, while the evidence of the stolen cell phone would facilitate the discovery of truth this goal is outweighed by the particular facts of this case surrounding the breaches of the accused young person's liberty and privacy rights and the courts concern for maintaining the integrity of the judicial system, the problem being that our collective civil rights and liberties should not be compromised because of failings in judicial oversight.

In other words, it is an extremely slippery slope when the courts choose to reward unconstitutional practises by those who possess special societal authority, such an approach would, after all, tacitly condone an ends justifies the means approach to law enforcement, an approach that ultimately could degrade our Canadian standards of fair process in reference to policing standards. Balancing all the aforementioned factors, I note that I am of the viewpoint that to admit the evidence would bring the administration of justice into disrepute.

While the police officer located evidence on the accused person which ultimately implicated her in criminal conduct he really had no reason to ever suspect that she had a weapon in her possession and a very tenuous, if not questionable reason to detain her. Society's interest in having the youth accused have her case adjudicated on the merits is outweighed by the police conduct that uncovered the evidence of the crime as same was reflective of serious Charter breaches. Every individual, including those accused of crimes, must feel satisfied that their right to liberty and privacy is sufficiently important to

warrant that the state will adhere to the rule of law and, of course, if they can't expect the courts to protect those principles who else will? I have thus concluded that the conduct of the officer in this case cannot he condoned, therefore, in my opinion the evidence must be excluded as to do otherwise, that is to say rule it admissible, would be to undermine Charter values. I, accordingly, exclude the evidence of the cell phone. So we are finished with the voir dire decision as recorded. MS. ST. CROIX: Yes, thank you.

Based on that decision, I can indicate the Crown would not be opposed to a no evidence motion if my friend were to make one and I would invite Your Honour to enter an acquittal -- THE COURT: Very well. MS. ST. CROIX: -- on the matter. MS. BRACKEN: I would make such a motion, Your Honour. THE COURT: Very well, the acquittal is entered. MS. BRACKEN: Thank you. THE CLERK: All rise. THE COURT: Okay. THE CLERK: This court is now closed. B. CORRIN, P.C.J.