R. v. Cox, 2011 ONCJ 136

Information No. 10-0986 Citation: R. v. Cox , 2011 ONCJ 136 ONTARIO COURT OF JUSTICE EAST REGION HER MAJESTY THE QUEEN v. JOSHUA M. COX ********************************** Before the Honourable Mr. Justice Grant Radley-Walters On Wednesday, February 23rd, 2011 at Pembroke ****************************** Charge: s. 4.

(1) CDSA- Possession of Cocaine ***************** APPEARANCES : Tim McCann Counsel for the Federal Crown Michael March Counsel for the Defence

Reasons for Judgment R. v. Joshua M. Cox Radley-Walters, G. REASONS FOR JUDGMENT WITH RESPECT TO THE CHARTER APPLICATION 1 . Joshua Cox was charged with unlawfully possessing cocaine contrary to s.4(1) of the Controlled Drugs and Substances Act , a substance included in

Schedule 1 of that Act. The allegation relates to the 1 st of August, 2010 in Deep River, Ontario, in the East Region. 2 . The accused has brought an application pursuant to the Canadian Charter of Rights and Freedoms seeking an order granting the exclusion of all evidence obtained in violation of sections 7 , 8 , 9 , and 10(

b) of the Charter pursuant to the exclusionary remedy found in s.24(2) of the Charter . 3 . During the course of this trial, the Crown called three witnesses, namely, Sergeant Swarbrick, Special Constable Veley, and Danielle Davidson. The accused testified on his behalf in the Charter Application. Sergeant Swarbrick was candid with the court when he confirmed that he had difficulty remembering the details of this particular case given the length of time that had lapsed between the date of the alleged offence and the trial date.

His notes were sketchy and he left out a number of important details with respect to the case. Special Constable Veley testified that he had never testified in court before. He did not prepare any notes contemporaneously with the alleged offence. His only will-say statement was produced approximately 4 months after the alleged offence. I find that I accept the testimony of the accused and Danielle Davidson where it conflicts with that of Sergeant Swarbrick and Special Constable Veley. FACTS: 4 .

On August 1 st , 2010, at approximately 1:20 a.m., Sergeant Barry Swarbrick of the Deep River Police service responded to a telephone call from the security division of Atomic Energy of Canada Limited. Sergeant Swarbrick was advised that the security division had observed on a security camera at the rear of an AECL building in Deep River, a male and a female snorting something. Sergeant Swarbrick acknowledged at trial that his memory of the events that early morning were limited due to the lapse of time between the alleged offence date and the date of trial.

Sergeant Swarbrick also confirmed that his notes were limited in their detail of the events. Apart from identifying a man and a woman snorting something behind the AECL building, there was no description with respect to the individuals that would identify them or exactly what they were doing. Sergeant Swarbrick did not view the video camera himself but immediately drove to the alleged location with Special Constable Veley in an unmarked police cruiser. 5 . Sergeant Swarbrick arrived at the alleged location at approximately 1:30 a.m. on August 1 st , 2010.

When he arrived at the AECL building in Deep River he went to the north side of the building. This was approximately 100 feet from the suspect area covered by the surveillance camera. Sergeant Swarbrick spoke with a teenage person first who was in that area and subsequently he spoke with the accused and a female who identified herself as Danielle Davidson. 6 . Sergeant Swarbrick motioned the two adults over to his cruiser and immediately spoke with the accused. Sergeant Swarbrick then told Danielle Davidson to step back from where she was standing and instructed her to wait there.

Sergeant Swarbrick then took the accused and Special Constable Veley to the back of his cruiser approximately 20 feet away from Danielle Davidson and asked the accused whether or not he had consumed cocaine that evening or if he had any drugs on him. The accused answered no to both questions. Sergeant Swarbrick then went and spoke with Danielle Davidson leaving Special Constable Veley to stand beside the accused. In the course of questioning Ms. Davidson, she admitted that she had been consuming cocaine but that she did not have any cocaine on her.

She further indicated that she did not know if the accused had any cocaine on him. Sergeant Swarbrick questioned Danielle Davidson for approximately 5 minutes before he then returned to ask further questions of the accused.

7. I accept the testimony of the accused, Joshua Cox, when he testified that Sergeant Swarbrick approached him and said, “Josh youhave a choice to make. You can hand it over or I can arrest you and search you and locate it.” After Sergeant Swarbrick made thiscomment to the accused, the accused handed over 7 small packets of cocaine which he had located in his pocket. The packets of cocaineeach weighed approximately .8 of a gram. 8.

Sergeant Swarbrick testified in the course of the trial that until the accused actually handed over the packages of cocaine, SergeantSwarbrick did not think that he had reasonable and probable grounds to arrest the accused. Sergeant Swarbrick testified that if theaccused had walked away, he would not have arrested the accused. 9. Both Sergeant Swarbrick and Special Constable Veley were in full police uniform. Sergeant Swarbrick carried a firearm andSpecial Constable Veley did not. 10.

At no time between 1:30 a.m. when the police arrived at the alleged scene and 1:39 a.m. when the accused was transported back tothe detachment and arrived at the detachment, did Sergeant Swarbrick give the accused his rights to counsel or caution him. SergeantSwarbrick was acquainted with the accused from past dealings with the accused when the accused was a victim of an assault. DeepRiver is a small community and Sergeant Swarbrick would have been familiar with the accused as an individual in the community.

As aresult, when Sergeant Swarbrick arrested the accused near the AECL building, he did conduct a search of the accused but did nothandcuff him when he took him in the cruiser back to the police station. 11. At the police station, the accused was detained for approximately 1 hour while the paper work was completed and was released on apromise to appear. 12. The Town of Deep River holds a festival each summer entitled, “Summer Fest”. There are numerous activities located throughout the town during the celebration. The early morning of August 1st, 2010 fell during the Summer Fest.

As a result, there were othercouples who were walking near the AECL building on the early morning in question. In addition, there were the four young people thatthe accused and Danielle Davidson were speaking to when the police arrived. Sergeant Swarbrick acknowledged in the course of thetrial that he should have cautioned both the accused and Danielle Davidson at the parking lot when he questioned them. SergeantSwarbrick indicated that he did not do so because he was only about 200 yards away from the police station.

Special Constable Veleytestified in the course of the trial that in his opinion neither the accused nor Danielle Davidson were free to leave the parking lot areaonce Sergeant Swarbrick brought them to the cruiser and separated them. I find that there was no physical contact between the policeofficers and the accused and Danielle Davidson during the course of their questioning. The only physical contact took place whenSergeant Swarbrick arrested the accused and searched him at the parking lot. 13.

At approximately 1:39 a.m., Sergeant Swarbrick had the accused back at the police station in Deep River and approximately 1minute later he read the accused his rights to counsel and cautioned him. ISSUES: 14. The issues raised in this application as follows:

a) Was the Applicant detained pursuant to s.9 of the Charter?

b) If the Applicant was detained, was the detention lawful and was the officer required to provide rights to counsel while questioningthe accused in the parking lot?

c) If the Applicant’s Charter rights were breached, should the evidence be admitted or excluded in the trial? ANALYSIS: 15. The issue raised in this case, is firstly whether or not the accused was detained by Sergeant Swarbrick and if he was detained, didSergeant Swarbrick have a duty to inform the accused of his 10(

b) Charter rights to retain and instruct counsel. The Supreme Court ofCanada in the decision of R .v. Suberu (2009) 2009 SCC 33 , 2 S.C.R. 460 has summarized the law with respect to the issue ofdetention and the requirement to advise an accused person of their rights to counsel in paragraphs 1 through 5 in the decision as follows:

“[1] The facts in this appeal and in the companion case R. v. Grant , 2009 SCC 32 , again give rise to the difficult task of defining the constitutional line where police actions, in the context of dynamic encounters with members of the public, amount to a detention and effectively trigger the protections afforded to detainees under ss. 9 and 10 of the Canadian Charter of Rights and Freedoms . In turn, defining what constitutes a detention for Charter purposes requires courts to balance individual constitutional rights against the public interest in effective law enforcement. [2] The specific issue raised in this case is whether the police duty to inform an individual of his or her s. 10(

b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention — a question left open in R. v. Mann , 2004 SCC 52 , [2004] 3 S.C.R. 59 , at para. 22 . It is our view that this question must be answered in the affirmative. The concerns regarding compelled self- incrimination and the interference with liberty that s. 10(

b) seeks to address are present as soon as a detention is effected. Therefore, from the moment an individual is detained, s. 10(

b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel “without delay”. The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter . [3] However, as this Court held in Mann , not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter .

Section 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual’s right to counsel under s. 10( b ). As Iacobucci J. aptly observed, “[t]he person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’.

But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint” (para. 19). [4] As we explain in Grant , it is clear that an individual may be detained within the meaning of the Charter without being subject to actual physical restraint. Where the subject is legally required to comply with a demand or direction that interferes with his or her liberty, detention is usually easily made out.

Where there is no legal obligation to comply but a reasonable person in the subject’s position would conclude that he or she had been deprived of the liberty of choice, a detention is also established. [5 ] Even when an encounter clearly results in a detention, for example when the person is ultimately arrested and taken in police custody, it cannot simply be assumed that there was a detention from the beginning of the interaction. Given the immediacy of the s. 10(

b) obligation to inform a detainee of his or her right to counsel, it is important to determine if and when an encounter between the police and an individual effectively crystallizes in a detention. It will depend on the circumstances. It is for the trial judge, applying the proper legal principles to the particular facts of the case, to determine whether the line has been crossed.” 16 . It is therefore critical to determine if and when the encounter between Sergeant Swarbrick and the accused effectively crystallized into a detention.

Was the accused’s freedom to choose whether or not to co-operate with the police removed during the time prior to his arrest. If that was the case, then Sergeant Swarbrick should have read the accused his rights to counsel. 17 . The Supreme Court of Canada in Suberu stated in paragraph 24 that the determination as to whether or not there has been a detention is an objective determination made in light of the circumstances of the encounter as a whole.

In paragraph 25 of the decision, the Supreme Court of Canada sets out the factors that must be considered in assessing whether or not there has been a detention in any given factual situation. Paragraphs 24 and 25 of the decision states as follows: “[24] As explained in Grant , the meaning of “detention” can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society’s interest in effective policing and the detainee’s interest in robust Charter rights.

To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter . [25] For convenience, we repeat the

summary set out in Grant , at para. 44 :

Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.

To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia , the following factors: The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.” 18 . I find on the facts of this case Sergeant Swarbrick was not providing general assistance or maintaining general order on the early morning in question.

After initially talking to a young person at the scene, it is clear that Sergeant Swarbrick singled out the accused and Danielle Davidson for a focused investigation. It is clear that Sergeant Swarbrick was polite and not abusive in the course of his questioning and it is also clear that he was assertive and intentionally divided Danielle Davidson from the accused so that he could question them separately. The evidence is that this took place at 1:30 a.m. in the summer time and adjacent to a large public building.

Objectively, I find that this would be an intimidating situation for the accused and Danielle Davidson. Danielle Davidson is 23 years of age and the accused is 25 years of age. Sergeant Swarbrick is a physically imposing individual and a 23 year veteran police officer. 19 . When Sergeant Swarbrick simply motioned the accused and Danielle Davidson over to the cruiser for the purposes of obtaining information, clearly there was a delay but no detention at this point.

I find that the detention crystallized at the point where Sergeant Swarbrick separated the accused from Danielle Davidson and after initially questioning him, required that he stay with Special Constable Veley while Sergeant Swarbrick questioned Danielle Davidson for approximately 5 minutes. When Sergeant Swarbrick returned to further question the accused and put an ultimatum to him, Sergeant Swarbrick was singling out the accused for a focused investigation and at that point at a minimum was detaining the accused. At that point, Sergeant Swarbrick should have provided the accused with his 10(

b) rights pursuant to the Charter . Sergeant Swarbrick did not advise the accused of his rights to counsel and caution at that time and in fact did not provide him with those rights until after he had arrested him, searched him and took him back to the police station. I find that when Sergeant Swarbrick returned to speak to the accused immediately after questioning Danielle Davidson that he approached the accused with the purpose of collecting specific incriminating statements from the accused.

I accept the evidence of Special Constable Veley that the accused was not free to leave at any point prior to his arrest. 20 . I therefore find that the accused was detained by Sergeant Swarbrick and Special Constable Veley when the accused was separated from Danielle Davidson and specifically when Sergeant Swarbrick returned to further question the accused after he had questioned Danielle Davidson. I further find that it was a violation of the accused’s s. 10(

b) rights as Sergeant Swarbrick should have read the accused his rights to counsel prior to seeking further incriminating admissions and certainly immediately after his arrest. 21 . In view of the fact that I have found that there was a violation of the accused’s s. 10(

b) rights pursuant to the Charter , I must now turn to the analysis of whether the evidence should be excluded. 22 . The Supreme Court of Canada in the decision of R. v. Grant (2009) 245 CCC(3d) p. 1, established that there are three factors that I must consider in deciding if the evidence should be excluded: 1. Firstly, the seriousness of the Charter infringing state-conduct. The admission of evidence improperly obtained may send a

message that the justice system condones police misconduct. 2. Secondly, I must consider the impact of the breach on the Charter protected interest of the accused. The admission of improperly obtained evidence may send the message that individual rights count for very little. 3. Finally, I must consider the society’s interest in the adjudication of the case on its merits. My role is to balance the assessments under each of these lines of inquiry to determine, whether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. 23 .

In the case before the court, it is apparent that Sergeant Swarbrick was negligent in failing to provide the accused with his rights to counsel during his focused interview of the accused in the parking lot on the morning in question. In fact, Sergeant Swarbrick acknowledges this in his testimony. Even though there is no bad faith on behalf of Sergeant Swarbrick established in this particular case, either his ignorance of Charter standards or his negligence or willful blindness to provide the accused with his Charter rights cannot be rewarded or encouraged and cannot be equated to good faith.

Police conduct in violation of established Charter standards tends to support exclusion of the evidence. 24 . With respect to the inquiry that focuses on the seriousness of the impact of the Charter breach on the Charter protected interest, I find that in the case before the court, Sergeant Swarbrick put an ultimatum to the accused which resulted in him handing over the cocaine. The obtaining of this incriminating evidence prior to the accused being provided with his rights to counsel, impacted seriously on his Charter protected interests.

It resulted in his arrest, his transportation to the police station and his detention there in the early morning for approximately one hour while his release documents were being prepared. In my view, the impact of the breach was significant and it tends to support the exclusion of the evidence. Finally, the society’s interest on the adjudication of the case on its merits requires that I determine whether or not the criminal trial process would be better served by the admission of the evidence or by its exclusion.

In this regard, I must consider the overall purpose of s. 24(2) of the Charter of Rights and Freedoms which is to maintain the good repute of the administration of justice. 25 . I acknowledge that the reliability of the evidence is an important factor in favour of admission of the evidence. From the public’s perspective, the exclusion of relevant and reliable evidence generally tends to undermine the truth seeking function of the justice system. In the case before the court we have seven small packages of cocaine which were handed over to Sergeant Swarbrick.

I am mindful that this evidence is critical to the prosecution’s case. In the case of R. v. Grant , the Supreme Court of Canada directed trial judges that they should not focus on the immediate reaction to an individual case, but rather to consider the overall repute of the justice system viewed in the long term by the admission of evidence obtained in contravention of the Charter of Rights . 26 . When I consider the three lines of inquiry as set out in R. v .

Grant , I must conclude that the overall repute of the justice system is better served in this case by the exclusion of all verbal statements made by the accused to Sergeant Swarbrick immediately prior to his arrest and the evidence of the packages of cocaine handed to Sergeant Swarbrick again immediately before his arrest. 27 . The application of the accused is therefore granted. There will be an order for the exclusion of all evidence obtained in violation of the accused’s Charter rights pursuant to the provision of s. 24(2) . ______________________________________ The Honourable Mr. Justice G. Radley-Walters